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February 28 2013
Causation is frequently a dispositive issue in product liability and mass tort cases. Plaintiffs often lack a clear theory and evidence of causation, and so seek to postpone consideration of causation until trial or the eve of trial. Forcing plaintiffs to clarify their causation theory and evidence early in the proceedings can be a substantial strategic advantage to defendants and may lead to early dismissal on motion or to other disposition on favourable terms.
'Lone Pine' orders – named after an early New Jersey case – are a potentially important tool. Such orders require plaintiffs to set forth their causation theory and support it with expert and other evidence early in the case. Although there appears to be an increasing willingness by courts to require early case definition, Lone Pine motions are underutilised and often not well understood.
This update describes the strategic use of Lone Pine motions, reviews the recent case law granting or denying them and provides practical guidance on when Lone Pine motions are likely to be beneficial and what arguments are most likely to be persuasive to a court in imposing structure early in a potentially massive proceeding.
Although there are numerous variations, Lone Pine orders typically require plaintiffs, prior to the initiation of discovery, to provide some minimal level of evidentiary support for their causation claims by coming forward with "basic facts" that they should have had before filing their claims.(1) The underlying rationale is to:
Lone Pine orders have been employed in a wide variety of personal injury, medical monitoring and property damage cases (eg, cases involving pharmaceuticals, chemicals, nuclear radiation, lead paint, asbestos, silica, uranium mining and oil and gas drilling, among others). Courts have relied on Rule 16 of the Federal Rules of Civil Procedure and state law equivalents, as well as their inherent power to manage their dockets, as the authority for entering such case management orders. Courts have also exercised their authority to dismiss or limit claims where plaintiffs failed to comply with such an order, usually despite having been given ample time and several opportunities to do so.
Courts have considered a number of factors in assessing whether a Lone Pine order should be entered, including:
These obviously are general factors that can be weighed differently by different judges. The results in reported cases appear to turn on the particular procedural and factual circumstances of individual cases and the proclivities of individual judges.
Although there is no general formula, a few common threads can be discerned. For example, Lone Pine orders are particularly useful where there is a substantial basis for doubting plaintiffs' general causation theory. Doubt may arise when the plaintiffs' claim is novel with little track record in the courts and minimal, if any, support in the scientific literature; or when there is some scientific support for the causation theory in the abstract, but it is weak or its applicability is contingent on a number of variables.
Courts granting Lone Pine orders in these circumstances have placed considerable reliance on reports by government agencies that have investigated and found little or no causal relationship. In Strudley v Antero Resources Corp,(2) a much-discussed fracking case, the court granted the defendants' Lone Pine motion, relying on the fact that the Colorado Oil and Gas Commission had investigated the plaintiffs' well water and found that it had not been affected by oil and gas operations in the vicinity.
Lone Pine orders have also been granted in cases where there is substantial reason to doubt that many plaintiffs can meet their burden of proving specific causation. Some plaintiffs may be unable to prove that they were exposed to the substance at all, or that their exposure was too short in duration or too small a dose to make out a prima facie case. For example, the Ninth Circuit affirmed orders requiring plaintiffs who had never lived near a chrome-plating operation or lived near the operation only after it closed to make a prima facie showing of exposure and causation and dismissing non-compliant claims.(3) Other plaintiffs may be unable to prove exposure to a particular defendant's product, setting the stage for dismissal of claims against that defendant for lack of product identification.
A typical Lone Pine order requires the plaintiffs to provide admissible evidence, in the form of expert affidavits, establishing the prima facie elements of his or her claims. For example, in the Lone Pine case itself, the court required the plaintiffs to provide, with respect to personal injury claims:
The court also required the plaintiffs to provide, with respect to property damage claims:
The precise information and content of the expert affidavits required can be adjusted to the particular circumstances of the case; they may include, for example, details of the time, manner, place of exposure, exposure pathways, dosage, product identification evidence and any supporting epidemiology.
Although it has been said that Lone Pine orders are "routinely" used in mass tort cases,(5) some courts have recently declined to adopt them because of concerns that they may cut off a plaintiff's right to discovery and may operate as summary judgment motions without the attendant procedural protections.(6) Indeed, one court has said that a Lone Pine order should be entered only in an "exceptional" case "after the defendant has made a clear showing of significant evidence calling into question the plaintiffs' ability to bring forward necessary medical causation and other scientific information".(7)
Lone Pine orders are not appropriate for every case, but they can often provide strategic advantages to defendants and benefit the judicial system. Defence counsel should be prepared to demonstrate that:
A government report or other independent scientific evidence casting doubt on plaintiffs' causation theory can be particularly persuasive. Before moving for a Lone Pine order, counsel should consider whether there are alternative case management tools for achieving the goals of weeding out meritless claims, focusing discovery and setting up dispositive motions.
Even if a Lone Pine motion is inappropriate or is unsuccessful at the outset of the case, counsel should consider filing one later as the scientific and expert evidence develops. For example, in the Vioxx litigation, the court was persuaded at a later stage of the litigation – when knowledge about the effect of the product on the human body had developed – that a Lone Pine order should be entered, and it subsequently granted summary judgment for failure to provide adequate case-specific expert reports of injury and causation.(8)
For further information on this topic please contact William H Voth or Gillian L Thompson at Arnold Porter LLP by telephone (+1 212 715 1000), fax (+1 212 715 1399) or email (email@example.com or firstname.lastname@example.org).
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William H Voth