An overview of Lone Pine orders in toxic tort litigation: by requiring plaintiffs to produce early in discovery the specifics of their claims, judicial resources are preserved and contentions sharpened.

• Author: Muehlberger, James P.

LONE PINE orders are a type of case management order requiring plaintiffs in toxic tort lawsuits to produce early in the discovery process basic evidence supporting a prima facie case. Cases in which defendants can persuade a court to enter a Lone Pine order typically have multiple plaintiffs and occasionally multiple defendants. The orders generally require plaintiffs to identify their injuries and produce some evidence of causation. As a result, these orders help courts organize claims and focus on key issues early in litigation. Courts may rely on either their inherent authority to control their dockets or applicable rules of civil procedure to issue these case management orders.

While most jurisdictions have not considered Lone Pine orders, their use appears to be spreading as plaintiffs' attorneys continue to push the edge of the class action envelope with new and unproven claims.

HOW THEY BEGAN

Lone Pine orders take their name from a 1986 case in the Appellate Division of the New Jersey Superior Court, styled Lore v. Lone Pine Corp., (1) involving multiple plaintiffs suing 464 defendants. The plaintiffs alleged personal injuries and property damage from a landfill. In order to streamline the proceedings, the court entered a case management order requiring the plaintiffs to provide certain basic information regarding their claims.

With respect to their personal injury claims, each plaintiff was required to provide (1) the facts of his or her exposure to the alleged toxic substances at or from the Lone Pine landfill, and (2) reports of treating physicians and medical or other experts supporting each individual plaintiff's claim of injury and causation by the substances. The court also required each plaintiff to provide in support of claims for diminution of property value: (1) his or her address and (2) reports of a real property or other expert supporting the claim for diminution in value. When the plaintiffs failed to produce the information required by the case management order, the court dismissed all of their claims with prejudice.

WHAT THEY REQUIRE

A typical Lone Pine order requires a plaintiff to provide an affidavit by a date certain stating: (1) the identity and amount of each chemical to which the plaintiff was exposed; (2) the precise disease or illness from which the plaintiff suffers; and (3) the evidence supporting the theory that exposure to the defendant's chemicals caused the injury in question. (2) Other evidence can be required by the order. For example, as in Cottle v. Superior Court (Oxnard Shores Co.), (3) the dates of the exposure to the substance, the method of exposure (that is, inhalation, dermal or ingestion), and affidavits from medical experts supporting causation were required.

Many Lone Pine orders require expert opinions on causation. For example, in an Oklahoma case, the trial court in Tulsa County entered an order requiring the plaintiffs to provide statements identifying each injury, illness or condition that they claimed more likely than not was caused by exposure to any chemical. (4) The case against a utility company involved more than 150 office workers in Tulsa who alleged exposure to polychlorinated biphenols (PCBs) that escaped from an underground transformer.

Each plaintiff was ordered to provide a narrative statement, with an affidavit of a physician or other expert, that included:

* Identification of each relevant injury, illness or condition suffered;

* The underlying facts or data relied on to forming an opinion that he or she was exposed to PCBs and related chemicals at a level or dose which was sufficient to cause injury or illness;

* Identification of the precise exposure route--that is, inhalation, skin contact, ingestion--by which he or she was exposed to the listed chemicals;

* Specification of the precise chemicals which more probably than not caused each injury, illness or condition;

* For each illness, injury or condition, specification of the scientific and medical basis for the opinion, including a specific reference to the particular scientific or literature forming the basis of the opinion; and

* A differential diagnosis establishing that the physician or expert formed an opinion that more probably than not the plaintiff's illnesses did not have some etiology other than exposure to PCBs or related chemicals.

Plaintiffs who claimed that their physical injuries were caused by their fear of exposure to the chemicals in question also had to identify themselves as such.

The Lone Pine order in this case resembles an expert witness's affidavit opposing a motion for summary judgment. A court ordering this sort of information to be produced early in the discovery process provides a tremendous advantage to defendants wishing to dispose of frivolous claims quickly.

Ideally, Lone Pine orders allow courts to dispose of cases by dismissing plaintiffs' claims with prejudice when they fail to comply with the case management order. However, as a practical matter, a motion for summary judgment frequently must be filed to force the court to rule. (5)

ADVANTAGES

Lone Pine orders are an extremely useful tool for both courts and defense litigators in toxic tort litigation.

First and foremost, to quote the Fifth Circuit, "Lone Pine orders are designed to handle the complex issues and potential burdens on defendants and courts in mass tort litigation." (6) They allow a court to manage an unwieldy discovery docket by enabling it to enter a single detailed order requiting each plaintiff to produce statements of fact and affidavits from experts to support claims at the beginning of the case.

They also help eliminate frivolous claims quickly. By requiring plaintiffs to produce prima facie evidence supporting their causes of action, both the court and the defendants learn at the beginning of the case whether the plaintiffs' claims have merit. This increases efficiency in the civil justice system. By requiring the plaintiffs to produce basic information, defendants avoid spending millions of dollars in discovery to separate the wheat from the chaff. Defendants can argue that it is inequitable to force them to spend their resources defending against claims in the toxic tort setting before the plaintiffs produce evidence showing that they are injured and the defendant may be culpable.

Some commentators have criticized Lone Pine orders as giving defendants a premature summary judgment by requiring the plaintiffs to produce their evidence before the defendants move for summary judgment or the parties complete discovery. (7) The criticism is that case management orders and their administration lack the uniformity of enforcement provided by the rules of civil procedure for summary judgment motions. In spite of these protestations, to the contrary, Lone Pine orders are not premature...