The Lessons of Lone Pine.

• Author: Engstrom, Nora Freeman

ARTICLE CONTENTS INTRODUCTION 5 1. ORIGINS, THUMBNAIL SKETCH, AND CURRENT USE 12 A. Lore v. Lone Pine 13 B. Prevalence and Legality 15 1. Prevalence 16 2. Legality 18 C. Further Denning Lone Pine Orders and Distinguishing Them from Plaintiff Fact Sheets 19 II. MASS TORTS AND THE PERSISTENT PROBLEM OF NONMERITORIOUS CLAIMS 22 A. Mass Torts and Nonmeritorious Claiming 23 B. Five Conditions Conducive to Groundless Claiming 27 C. Consequences 33 III. LONE PINE ORDERS: A NORMATIVE PERSPECTIVE 54 A. On the Plus Side of the Ledger 34 B. A More Critical Look: Problems with the Lone Pine Mechanism 36 1. Inconsistency and Unpredictability 37 a. Whether to Issue a Lone Pine Order 37 b. Timing: Pre- or Post-Discovery? 40 c. Content: What Should a Lone Pine Order Say? 41 2. Out of Step with the Formal Procedural Scheme 42 a. At Odds with Rule 56 43 b. At Odds with Other Rules, Too 45 3. Specific Causation Is Not Susceptible to Easy Resolution 46 IV. A POSSIBLE PATH FORWARD 52 A. Lone Pine Orders Ought to Be Cautiously Utilized 53 B. Plaintiff Fact Sheets Can Fulfill Many of the Aims of Lone Pine Orders but at Lower Cost and with Fewer Drawbacks 57 V. THE LARGER LESSONS OF LONE PINE 60 A. Managerial Judging (Still) 60 B. Of Stop Signs, Friction Points, and the Ever-Accelerated Adjudication of Claims 65 C. The (Formal) Customization of Civil Procedure 70 D. The (Informal) Customization of Civil Procedure: Assessing Ad Hocery 71 CONCLUSION 75 INTRODUCTION

Since their invention in 1986, Lone Pine orders have become a popular feature of the mass-tort landscape. Though they vary on the specifics, these case-management orders generally require each plaintiff swept into a mass-tort proceeding to supply prima facie evidence of injury, exposure, and causation--all by a set date, under penalty of dismissal. Authorized by Federal Rule of Civil Procedure 16--and specifically Rule 16(c)(2)(L), which permits courts to "adopt[] special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties... or unusual proof problems" (1)--the orders act as a "procedural sieve." (2) By putting plaintiffs' claims to an early test and purging those who don't make the grade (or extinguishing the entire case, if all plaintiffs' submissions fall short), Lone Pine orders, it is said, help courts zero in on (and, ideally, address) gaps in the plaintiffs' evidence. This early scrutiny can, in turn, save defendants time, money, and aggravation; conserve scarce judicial resources; expedite the resolution of claims; deter the filing of groundless suits; and safeguard the integrity of trial processes. Indeed, to their many enthusiastic supporters, Lone Pine orders are an elegant means to achieve the aim of the Federal Rule of Civil Procedure 1: the "just, speedy, and inexpensive determination" of unwieldy and wickedly complex disputes. (3)

That, at least, is part of the story. Even standing alone, this story is worthy of inquiry. A bill that would codify and even mandate the use of Lone Pine orders in multidistrict litigation (MDL) recently passed in the House of Representatives, (4) and the Civil Rules Committee also appears to have Lone Pine in its sights. (5) Furthermore, even prior to receiving official approbation, Lone Pine orders have already been issued over ninety-five times. (6) And they have played a role in many of the nation's most prominent mass-tort cases--cases that have, collectively, resolved the claims of hundreds of thousands of people.

But, in fact, the full story of Lone Pine is further reaching--and also more interesting--than the above would suggest. Indeed, even if one views Lone Pine orders in isolation, the picture is richer and more nuanced than reflected in the current commentary: whereas the present literature views Lone Pine orders as mostly uncontroversial and generally beneficial, they come with large and weighty drawbacks, which, as we shall see, must be tallied and assessed. (7) Further, to the extent one broadens the aperture and views Lone Pine orders not in isolation but through a wider lens, the picture grows still more revealing. A wider perspective reveals that this obscure mechanism is born of--and intertwined with--broad currents that are collectively coursing through and quietly remaking contemporary civil litigation. These trends include such seemingly disparate developments as the unrelenting rise of managerial judging, the counterrevolution against federal litigation, the accelerated disposition of claims, and both the formal and informal customization of procedural mechanisms. By offering a deeper account of "Lone Pine orders," then, I not only seek to inform our views on, and courts' use of, this particular case management device. I also aim to enrich our understanding of these influential and subtly related phenomena.

A study of Lone Pine orders pays other dividends, too. The payoff comes because these orders are often (though not exclusively) part and parcel of mass-tort MDLs. Thus, a study of the Lone Pine mechanism compels us to consider the particular procedural context in which these orders are often issued.

Once second fiddle to Rule 23 class actions, MDLs--invented in 1968 and authorized by 28 U.S.C. [section] 1407--are enjoying their star turn. (8) As recently as 1991, MDLs accounted for only about 1 percent of pending civil cases. (9) Now, that figure has swelled to 37 percent, and mass-tort MDLs, the site of Lone Pine activity, comprise a staggering 95 percent of that total and encompass some 124,000 individual lawsuits. (10)

Transferee judges are tasked with managing these unruly actions, and, by all accounts, the assignment is immensely--almost absurdly--challenging. The numbers alone are daunting: as of May 2019, transferee judges were overseeing twenty-two "large" MDLs, each comprised of over one thousand separate actions. (11) Some MDLs are enormous: the asbestos liability litigation, for example, consolidated over 192,000 individual lawsuits. (12) Transferee judges' basic job description is internally inconsistent: judges are supposed to move cases along en masse and, at the same time, respect each plaintiffs personalized interest in a claim that is, and was, large enough to make it into federal court in the first instance. (13) And the judges--who are worldng alongside small and mostly inexperienced staffs, under intense time pressure, and often in the glare of intense public scrutiny--are supposed to do all that in a context where targeted procedural rules are vague or nonexistent; state ethics rules are generally either unhelpful or utterly beside the point; the underlying substantive law tends to vary, giving rise to vexing choice-of-law problems; and the claims themselves are, almost without exception, fiercely contested and technically complex. (14) Thrown into this maelstrom, transferee judges have understandably improvised. (15) They have, as a Center for Judicial Studies report recently concluded, "largely on their own... developed disparate approaches" and, using these homemade mechanisms, disposed of tens of thousands of cases "without the benefit of rules or a set of best practices." (16) Exhibiting this freewheeling, improvisational spirit, transferee judges have in recent years worked outside of accepted channels to slash attorneys' fees, (17) reached across jurisdictional boundaries to coordinate with state-court counterparts, (18) appointed advisory panels of scientific experts, (19) and engineered settlement agreements that are "unorthodox," to put it mildly. (20)

In the academic community, this improvisation is, by turns, criticized and celebrated. Critics insist that the ad hoc nature of these judge-made mechanisms--which pop up not just in MDLs, but in a wide variety of cases and contexts--are themselves problematic, as they are inconsistent with traditional conceptions of judging, likely to erode litigants' sense of procedural justice, unlikely to take third parties' interests into account, arguably undemocratic, insensitive to separation-of-powers concerns, susceptible to arbitrary or abusive action, and, at bottom, "incompatible with the rule of law." (21) Critics also lament that when judges improvise, their decisions almost invariably suffer from a lack of consistency, predictability, and horizontal equity (a problem we see vividly here). (22)

On the other hand, one person's willy-nilly "ad hocery" is another's commendable customization. (23) In other contexts (including with regard to alternative dispute resolution (ADR), where we famously want the "forum to fit the fuss"), we believe that bespoke procedures are a good thing, attuned to the interests of parties and conducive to settlement. (24) There is something of a "'rulemakers' intent" argument in favor of tailoring: the Advisory Committee is on record espousing the view that, particularly in complex cases, "flexibility" is desirable, (25) while the Federal Judicial Center's Manual for Complex Litigation goes further, to "encourage[]" judges "to be innovative and creative to meet the needs of their cases." (26) And, of course, defenders of ad hoc procedures have one final and powerful retort: what, really, is the alternative, and who is to say that it would not be appreciably worse? (27)

In the midst of this back-and-forth, however, there are two apparent--and crucial--points of consensus. The first is that, given the billions of dollars at stake, the scores of litigants affected, and the gaps and challenges described above, scholars ought to be doing more. We ought to be getting under the hood of MDLs to critically examine how these mechanisms--responsible for the adjudication and resolution of more than a third of federal civil claims in this country (28)--actually work. (29) Second, there is a growing sense that, rather than casting aspersions from on high, we ought to be rolling up our sleeves to offer grounded and practical guidance. (30)...