Considerations for Defense Counsel in Deciding to Seek, or Not to Seek, Lone Pine Orders in Mass Tort Litigation

Defense Counsel Journal, April 2018 | Go to article overview

Considerations for Defense Counsel in Deciding to Seek, or Not to Seek, Lone Pine Orders in Mass Tort Litigation


SO-CALLED "Lone Pine" orders are a hybrid litigation tool. Named after an unpublished New Jersey trial court opinion, 1 these orders are now "a common trial management technique in toxic torts cases with multiple plaintiffs." 2 Such orders "provide[] a tremendous advantage to defendants wishing to dispose of frivolous claims quickly."3

1. What Are Lone Pine Orders, and Why Are They Needed?

"Lone Pine" orders include various pretrial case management orders sharing requirements that plaintiffs come forward with evidentiary support--often in the form of expert testimony--for their allegations. 4 Such a requirement is hardly onerous, as this kind of information "should have" been marshaled by plaintiffs even "before filing their claims." 5 Onerous or not, however, mass tort actions are frequently "filed with little regard for the statute of limitations and with so little pre-filing preparation that counsel apparently has no idea whether or how she will prove causation." 6 Multi-district litigations in particular have "become magnets for advertising-driven, poorly investigated (and often patently invalid) personal injury claims." 7 A defendant "cannot be required to bear the burden of costly discovery without any articulation by Plaintiffs of the basic facts in support of their claims." 8 Thus, when plaintiffs bring such "action[s] without sufficient factual investigation and for the concerted purpose to coerce a settlement from Defendants," 9 Lone Pine orders offer a way out.

II. How Lone Pine Orders Work

A Lone Pine order's "basic purpose" is "to identify and cull potentially meritless claims." 10 They "protect defendants and the Court from the burdens associated with potentially non-meritorious mass tort claims." 11 Such an order "should result in the prompt development of relevant information about each individual plaintiff's exposure, injury and damage." 12 Often, merely taking the plaintiffs' and prescribing physicians' depositions in a mass tort will result in voluntary dismissal of a significant percentage of the cases. 13 "Although the content and scope of such orders varies from case to case, in general, Lone Pine orders require plaintiffs to make a prima facie showing of injury and causation by providing facts of an individual plaintiff's exposure to alleged toxic substances, combined with expert medical testimony supporting the claims of injury and causation by the alleged toxic substances." 14

None of the federal civil rules, and few if any state rules, specifically address Lone Pine orders, so their requirements vary. There is no agreement about when in the litigation process they should issue. Most federal courts rely on Federal Rule 16 as a basis for entering Lone Pine orders, 15 with other courts also citing Federal Rule 11. 16 State court rulings have been inconsistent. The majority of states follow federal practice and permit Lone Pine orders. 17 However, the Colorado rules do not allow Lone Pine orders at all. 18 Without rules to constrain them courts exercise significant discretion in crafting them--most frequently in multi-plaintiff mass tort and environmental cases. 19 Over time, Lone Pine orders have become "routine" and understood to be within the "wide latitude" given to judges managing mass torts. 20

In individual actions, defendants commonly resort to TwIqbal pleading motions to obtain missing information. 21 Indeed, where TwIqbal motions are available, failure to seek dismissal under Rules 8 and 12 has weighed against entry of a Lone Pine order. 22 Reluctance to impose Lone Pine provisions order is sometimes based on the belief that such orders lack the procedural safeguards that exist for motions for summary judgment under Rule 56 or to dismiss under Rules 8 and 12. 23

In mass torts and multi-district litigation, however, defendants' ability to file individual TwIqbal motions to dismiss or for summary judgment are often delayed or restricted, as are plaintiffs' usual obligations to support their claims with affirmative evidence in responding to discovery. …

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