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Article: The Strategy of Lone Pine Orders: Timing Matters

Federal and state courts are using Lone Pine orders to effectively manage and control mass tort cases and other complex litigation. A Lone Pine order is a case management order that requires all plaintiffs to furnish fundamental evidence to substantiate essential elements of their claim, such as causation and the nature and extent of their injuries or damages. Used strategically, a Lone Pine order provides defendants with a powerful weapon to streamline and narrow claims, or even eliminate them altogether. This article discusses some of the important considerations in seeking Lone Pine orders.

The concept originates from the New Jersey case Lore v. Lone Pine Corp., a toxic tort case in which the court entered a pre-discovery case management order requiring all plaintiffs to provide documentation containing what the court deemed “basic facts” in support of their claims. No. L-33606-85, 1986 WL 637507, at *1-2 (N.J. Super. Ct. Law Div. Jan. 1, 1986). Specifically, with respect to each personal injury claim, plaintiffs were ordered to provide facts in support of their individual exposure to the toxins at issue, as well as reports from treating physicians or other experts supporting their claim of injury and causation. And for each claim for diminution of property value, plaintiffs were required to provide address information as well as reports of real estate experts or other experts supporting each claim, which were to include information regarding timing, degree of diminution in value, and causation. The court ultimately ruled that the plaintiffs’ evidence was insufficient and dismissed the case.

Since the Lone Pine decision, courts have adopted similar protocols in appropriate cases, noting the usefulness of Lone Pine orders in defining and narrowing issues, streamlining discovery, weeding out unmeritorious claims, and conserving judicial resources. Federal district court judges have wide discretion to enter such orders under Rule 16(c)(2)(L), and, generally speaking, state courts can employ such mechanisms at their discretion.

Courts, however, have taken different approaches to the Lone Pine order, particularly with respect to the timing of its entry. Very recently, the United States Court of Appeals for the Eleventh Circuit held that district courts should not issue Lone Pine orders prior to ruling on whether those claims survive a motion to dismiss for failure to state a claim under Iqbal/Twombly. Adinolfe v. United Technologies Corp., 768 F.3d 116, 1167-69 (11th Cir. 2014). The Adinolfe Court distinguished between “demand[ing] that plaintiffs come forward with some evidence supporting certain basic elements of their claims as a way of organizing (and maybe bifurcating) the discovery process once a case is at issue and dealing with discrete issues or claims by way of partial summary judgment motions” and “compiling, analyzing, and addressing evidence (pro and con) concerning the plaintiffs’ allegations without reciprocal discovery before those allegations have been determined to be legally sufficient under Rule 12(b)(6).” Id. at 1168. The Eleventh Circuit was concerned that Lone Pine orders might become “the practical equivalent of a heightened, court-imposed quasi-pleading standard, something the Supreme Court has frowned on.” Id. The Adinolfe Court expressly declined to comment on the “general propriety and/or utility of Lone Pine orders,” but suggested that discovery should be in play before a Lone Pine order is issued. Id.

The United States Court of Appeals for the Fifth Circuit, by contrast, approved the use of a Lone Pine order before discovery in Acuna v. Brown & Root Inc., 200 F.3d 335 (5th Cir. 2000). Acuna involved approximately 1,600 plaintiffs alleging personal injury and diminution of property value claims in connection with purported exposure arising from defendants’ uranium mining and processing activities. The Fifth Circuit affirmed the use of Lone Pine orders that required plaintiffs to submit expert affidavits “specify[ing], for each plaintiff, the injuries or illnesses suffered by the plaintiff that were caused by the alleged uranium exposure, the materials or substances causing the injury and the facility thought to be their source, the dates or circumstances and means of exposure to the injurious materials, and the scientific and medical bases for the expert’s opinions.” Id. at 337-38. The Fifth Circuit reasoned that the Lone Pine orders only required of each Plaintiff what he or she should have known before filing suit in the first instance. As a result, the Fifth Circuit found that the district court did not commit clear error or an abuse of discretion “in refusing to allow discovery to proceed without [a] better definition of plaintiffs’ claims.” Notably, the Acuna decision highlights the need for plaintiffs to conduct due diligence prior to filing suit, or in other words, to comply with Rule 11’s “reasonable inquiry” requirement. See Fed. R. Civ. P. 11(b).

In light of the varying approaches to Lone Pine orders, defendants must carefully consider when to seek a Lone Pine order. There may be strategic benefits to seeking a Lone Pine order early on (either before a Rule 12-type motion or after) if there is some indication the plaintiffs’ claims are susceptible to attack. For example, claims that are inconsistent with well-established science or medicine, claims of multiple plaintiffs alleging identical injuries (often against many defendants), or claims that lack exposure to the alleged toxins all may be ripe for an early Lone Pine order. This could allow for two different attacks on plaintiffs’ complaint before discovery even begins – one on the face of the complaint via Rule 12-type motions and one on the sufficiency of plaintiffs’ evidence via a Lone Pine order.

Alternatively, the better move may be to wait until some discovery has occurred to strengthen the basis upon which to argue for the Lone Pine order. For example, a limited number of targeted depositions in a mass tort case might create a record that plaintiffs lack evidence to support certain essential elements of their claims. At this stage and with this record, a defendant may be able to persuade the court to issue the Lone Pine order in lieu of protracted and expensive further discovery in a mass tort action. In our experience, some discovery also may reveal certain defenses, such as statutes of limitations or immunity, that a Lone Pine order is well-suited to address. Lone Pine orders are potentially powerful weapons in the defense of mass tort matters and other complex litigation. As a defendant in such cases, the decision about when to seek a Lone Pine order can be just as important as its contents. While the temptation may be to seek a Lone Pine order early on, the better strategic move may be to wait. Because each case is different, thinking creatively about when and how to use a Lone Pine order is critical to maximizing its effect.