By Alan Hoffman on April 10, 2017

courtLone Pine orders take their name from Lore v. Lone Pine Corp., No. L-33606-85, 1986 WL 637507 (N.J. Super. Ct. Law Div. Nov. 18, 1986). They are most often entered in toxic tort litigation, requiring plaintiffs to provide some prima facie evidence to support causation or other claims based on expert opinion. Steering Comm. v. Exxon Mobil Corp., 461 F.3d 598, 604 (5th Cir. 2006). Typically, such orders call for expert affidavits or other evidence supporting a claimed connection between the plaintiff’s condition and defendants’ products.

Counsel for plaintiffs often resist Lone Pine orders and case management provisions, contending that they are premature before discovery has been obtained from defendants. While Federal Courts generally are accustomed to Lone Pine provisions in connection with Rule 16 and Rule 26 pretrial proceedings, State courts sometimes view them as inappropriate, particularly in forums where pretrial case management procedures are uncommon. This attitude arises from a belief that such orders are unduly burdensome and can be used to force a merits determination without the protections afforded by Rule 56.

Such preconceptions are unjustified. Lone Pine orders do not require plaintiffs to prove their case, or even to show a genuine issue of material fact. Rather, they essentially require the same information that a plaintiff should have collected before filing suit. Acuna v. Brown & Root, Inc., 200 F. 3d 335, 340 (5th Cir., 2000).  If a claim is not frivolous, requiring pre-discovery prima facie support for a claim is neither onerous nor unjustified. Prudent plaintiffs’ counsel conduct this due diligence before filing suit, as is required by Federal Rule 11 and State analogues.   Occasionally plaintiffs may be required to file suit without having completed the necessary due diligence because of an impending statute of limitations or other obstacles, but this can be accommodated by providing adequate time to engage experts and have them analyze the evidence.

Wise counsel on all sides recognize the benefits of early identification of defendants against whom viable claims cannot be maintained to focus on those from whom recovery is possible. Doing so reduces the scope, duration and cost of pretrial discovery conserving the resources of the parties and the court.

The Lone Pine trail starts with discussions early in the litigation proceedings. The parties should then work collaboratively to address the interests of all concerned. One lawyer or group of lawyers can be tasked with drafting a proposed scheduling and case management order and circulating it to all other counsel for comment and input. The result should be an agreed order submitted to the Court in the normal course of pretrial compliance in Federal actions, or independently in State courts which do not have such procedures. Such a plan can also address electronic discovery and other pretrial issues, which is required by the Federal Rules, and is good practice in all litigation.  Few judges do not favor a process which contributes to a preparing cases for trial in an orderly fashion.

After plaintiffs have complied with Lone Pine requirements, some defendants may file summary judgment motions, or seek voluntary dismissals, on the ground that that no viable claim will lie against them. Early disposition of these issues simplifies and streamlines discovery on the merits between the remaining defendants and plaintiffs, expediting the process of preparing the case for mediation or other resolution and for trial.

Lone Pine orders in toxic tort cases are properly limited to general causation issues—i.e., whether a particular product is capable of causing the injuries complained of.  Once general causation has been established as to any defendant’s product, the parties can pursue discovery efficiently on specific causation and on the merits of plaintiffs’ claims and the defenses to them.

While typically used in toxic tort cases, Lone Pine orders can also play a valuable case management role in other types of litigation as well; e.g., in Wilson v. Navika Capital Group, LLC, Civil Action No. H-10-1569, Doc. No. 433, at *1–2 (S.D. Tex. May 21, 2013), the Court issued an order compelling limited discovery from a large class of in claimants in an FLSA collective action.

Lone Pine orders are not a weapon for defendants to abuse plaintiffs. Constructively approached and cooperatively implemented, they can be beneficial to all parties, to the Court, and to the interest of justice. Everyone can follow the Lone Pine trail.