March 2011

A Lone Pine order is a case management device in which the judge requires the plaintiff to make a prima facie showing of injury, causation, and/or damages. Its purpose is to simplify or eliminate cases to lessen the burdens on the courts and defendants. In a Lone Star order, plaintiffs are required to show an initial level of evidence for the key aspects of the case, often including expert witness(es). Some suggest this is already required by the plaintiff’s duty to conduct a proper pre-suit investigation. However, the practical reality is that a Lone Pine order places an increased burden on plaintiffs and reduces the incidence of plaintiffs using the threat of further litigation costs to extract a settlement value.

Lone Pine rulings get their name from a 1986 New Jersey environmental mass-tort case (Lore v. Lone Pine Corp). In the original Lone Pine case, the Court required plaintiffs to submit evidence shortly after the case was filed regarding both plaintiffs’ exposure to toxic substances, and medical expert evidence showing that the toxins were the cause of their injuries. When the plaintiffs were unable to provide this documentation, the judge dismissed their case.

Although Lone Pine rulings started in toxic tort litigation, judges are using this approach in other types of complex cases in both federal and state courts. But the orders do not have a long appellate record. For this reason, the Ninth Circuit’s decision in re: Donna Avila v. Willits Environmental Remediation Trust, 09-16455 (January 27, 2011) is important. Prior to this Ninth Circuit ruling, only one other federal circuit court directly ruled on the propriety of Lone Pine orders.

The Ninth Circuit summarized the issue and their finding as follows:

“…plaintiffs ask us to disapprove the process because, in their view, this type of order bypasses established rules of procedure for discovery and summary judgment. A prima facie order of the sort entered here is sometimes called a “Lone Pine” order after Lore v. Lone Pine Corp., in which such an order was issued. We have not directly addressed a Lone Pine order before, although we have affirmed dismissals in cases where orders requiring a similar type of prima facie showing were entered. However, the Fifth Circuit Court of Appeals has considered and approved a Lone Pine order in a similar case that also raised issues of exposure and injury from toxic emissions. We agree with

[the Fifth Circuit’s] explanation that district judges have broad discretion to manage discovery and to control the course of litigation under Federal Rule of Civil Procedure 16. In particular, Rule 16(c)(2)(L) authorizes a court to adopt “special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems.” No basis appears for us to cordon off one type of order-a prima facie order on exposure and causation in toxic tort litigation-from the universe of case management orders that a district court has discretion to impose. We decline to do so. [Citations omitted].

At the trial court, plaintiffs were required to provide unilateral expert testimony in response to early discovery if plaintiffs intended to rely on expert opinions. The trial Court’s order required that each plaintiff was to file a written statement setting forth “all facts” in support of their claimed exposure. The trial Court warned that if any plaintiff failed to provide a response, “a negative inference and/or issue preclusion will result”. The Ninth Circuit described this as:

“… plaintiffs also suggest that the order impermissibly made discovery unilateral by directing them to make disclosures before Whitman had to do so. However, Federal Rule of Civil Procedure 26(a)(2)(C) gives a district court authority to determine when-and in what sequence-expert testimony must be disclosed. “

The appeal also involved Daubert issues, and statute of limitation issues. These issues were case-specific, and less subject to a general statement of civil procedure applicable to other cases. Accordingly, we do not summarize these other matters here.

Because of the costs involved, plaintiffs are often slow to authorize meaningful work by experts. If defendants press the conclusions of the Ninth Circuit’s ruling to greater numbers of cases, the typical delay in employing experts will be significantly shortened.

Fulcrum Inquiry prepares damages analyses on behalf of both plaintiffs and defendants.