The Lone Pine Order: Limiting Claims and Costs in Complex Cases

For decades, courts have seen a dramatic increase in the volume of complex litigation. As technological change continues to outpace the legal landscape, these trends are likely to continue. The exorbitant costs of defending complex cases have left businesses, insurers, and employers scrambling to find more efficient ways of managing the litigation process. One potential case-management tool that has arisen out of mass tort litigation in the federal courts is the Lone Pine order.

Lone Pine orders—which derive their name from the case Lore v. Lone Pine Corp., No. L-33606-85, 1986 WL 637507 (N.J. Super. Ct. Law Div. Nov. 18, 1986)—are “pre-discovery orders designed to handle the complex issues and potential burdens on defendants and the court in mass tort litigation by requiring plaintiffs to produce some evidence to support a credible claim.”  Steering Comm. v. Exxon Mobil Corp., 461 F.3d 598, 604 n.2 (5th Cir. 2006). The purpose of such orders is to “identify and cull potentially meritless claims” and to streamline litigation. Baker v. Chevron USA, Inc., No. 1:05-CV- 227, 2007 U.S. Dist. Lexis 6601, 2007 WL 315346, at *1 (S.D. Ohio Jan. 30, 2007). These orders typically require claimants to submit some measure of evidence—often in the form of expert affidavits—specifying the injury suffered, the cause of the injury, and the basis for such opinion. See Acuna v. Brown & Root, Inc., 200 F.3d 335, 338 (5th Cir. 2000). Lone Pine orders derive their authority under the wide discretion afforded to judges under Federal Rule of Civil Procedure

16. Acuna, 200 F.3d at 340.

Courts have issued Lone Pine orders the most often in cases involving large classes of plaintiffs claiming some form of exposure-related personal injury. For example, the first federal circuit court decision to recognize and affirm the use of Lone Pine orders involved approximately 1,600 claimants alleging injuries and illnesses due to radiation and uranium exposure while working in mining facilities and processing plants. Acuna, 200 F.3d at 337. In the years since Acuna, courts have somewhat expanded the use of Lone Pine orders. For example, in Burns v. Universal Crop Prot. All., a court in the Eastern District of Arkansas issued a modified Lone Pine order in a case involving 82 cotton farmers asserting claims for property damage caused by a defective herbicide. No. 4:07CV00535, 2007 WL 2811533, at *1 (E.D. Ark. Sept. 25, 2007). Moreover, in a well-considered and erudite opinion, a court in the Eastern District of Texas adopted a Lone Pine in the context of an admiralty limitation of liability action pursuant to 46 U.S.C. § 30505(a). In the Matter of Complaint of AET Inc., Civil Action No. 1:10-CV-51, Doc. No. 3475 (E.D. Tex. Dec. 14, 2011). Indeed, district courts have recently countenanced the use of Lone Pine orders in cases in which the number of claimants is relatively small. Baker v. Anschutz Exploration Corp., No. 11-CV-6119-CJS, 2013 WL 3282880, at *1, 4 (W.D.N.Y. June 27, 2013) (entering a Lone Pine order a case where 15 plaintiffs alleged environmental damage to their properties from the defendants’ gas and oil drilling).

Notwithstanding these developments, courts still tend to view a Lone Pine order as an “extraordinary” procedure that may not be appropriate in every case, which, even when appropriate, may not be suitable at every stage of the litigation. See In re Digitek Prod. Liab. Litig., 264 F.R.D. 249, 256 (S.D.W.Va. 2010). Part of the reason for this is the potential for such an order to be used as a “pseudo-summary judgment” device, resulting in a merits determination for some or all plaintiffs without the protections afforded by Federal Rule 56. See Adinolfe v. United Techs. Corp., 768 F.3d 1161, 1168 (11th Cir. 2014). For this reason, courts have yet to adopt Lone Pine orders in commercial, employment, or consumer-related actions that do not involve catastrophic-tort-type allegations.

It bears noting, however, that the burden of production under a Lone Pine order does not require a claimant to prove his or her case, or even to raise a genuine issue of material fact; rather, Lone Pine orders “essentially require” that information that plaintiffs should have had before filing their claims” pursuant to the federal pleading standards. Acuna, 200 F.3d at 340. In other words, if a claim is not frivolous, the requirement to produce pre-discovery prima facie support should not be an onerous demand in contexts other than toxic tort litigation. Indeed, courts have required production of similar information as part of regular discovery in employment cases under the penalty of dismissal. See, e.g., Wilson v. Navika Capital Group, LLC, Civil Action No. H-10-1569, Doc. No. 433, at *1-2 (S.D. Tex. May 21, 2013) (issuing an order compelling limited discovery from a large class of in claimants in an FLSA collective action, noting that “Defendants are entitled to know basic information about the opt-in Plaintiffs, including their positions, location(s) of employment, job duties, salaries, and alleged damages”).

Courts will undoubtedly continue to differ in the frequency and circumstances under which Lone Pine orders are used. Nevertheless, as complex litigation continues to increase, such orders are likely to gain acceptance outside the toxic tort sphere. Defendants in complex commercial or employment matters would be well-advised to consider the Lone Pine order as a recognized, practical, and effective means of eliminating frivolous claims and limiting costs.

For decades, courts have seen a dramatic increase in the volume of complex litigation. As technological change continues to outpace the legal landscape, these trends are likely to continue. The exorbitant costs of defending complex cases have left businesses, insurers, and employers scrambling to find more efficient ways of managing the litigation process. One potential case-management tool that has arisen out of mass tort litigation in the federal courts is the Lone Pine order.

Lone Pine orders—which derive their name from the case Lore v. Lone Pine Corp., No. L-33606-85, 1986 WL 637507 (N.J. Super. Ct. Law Div. Nov. 18, 1986)—are “pre-discovery orders designed to handle the complex issues and potential burdens on defendants and the court in mass tort litigation by requiring plaintiffs to produce some evidence to support a credible claim.”  Steering Comm. v. Exxon Mobil Corp., 461 F.3d 598, 604 n.2 (5th Cir. 2006). The purpose of such orders is to “identify and cull potentially meritless claims” and to streamline litigation. Baker v. Chevron USA, Inc., No. 1:05-CV- 227, 2007 U.S. Dist. Lexis 6601, 2007 WL 315346, at *1 (S.D. Ohio Jan. 30, 2007). These orders typically require claimants to submit some measure of evidence—often in the form of expert affidavits—specifying the injury suffered, the cause of the injury, and the basis for such opinion. See Acuna v. Brown & Root, Inc., 200 F.3d 335, 338 (5th Cir. 2000). Lone Pine orders derive their authority under the wide discretion afforded to judges under Federal Rule of Civil Procedure

16. Acuna, 200 F.3d at 340.

Courts have issued Lone Pine orders the most often in cases involving large classes of plaintiffs claiming some form of exposure-related personal injury. For example, the first federal circuit court decision to recognize and affirm the use of Lone Pine orders involved approximately 1,600 claimants alleging injuries and illnesses due to radiation and uranium exposure while working in mining facilities and processing plants. Acuna, 200 F.3d at 337. In the years since Acuna, courts have somewhat expanded the use of Lone Pine orders. For example, in Burns v. Universal Crop Prot. All., a court in the Eastern District of Arkansas issued a modified Lone Pine order in a case involving 82 cotton farmers asserting claims for property damage caused by a defective herbicide. No. 4:07CV00535, 2007 WL 2811533, at *1 (E.D. Ark. Sept. 25, 2007). Moreover, in a well-considered and erudite opinion, a court in the Eastern District of Texas adopted a Lone Pine in the context of an admiralty limitation of liability action pursuant to 46 U.S.C. § 30505(a). In the Matter of Complaint of AET Inc., Civil Action No. 1:10-CV-51, Doc. No. 3475 (E.D. Tex. Dec. 14, 2011). Indeed, district courts have recently countenanced the use of Lone Pine orders in cases in which the number of claimants is relatively small. Baker v. Anschutz Exploration Corp., No. 11-CV-6119-CJS, 2013 WL 3282880, at *1, 4 (W.D.N.Y. June 27, 2013) (entering a Lone Pine order a case where 15 plaintiffs alleged environmental damage to their properties from the defendants’ gas and oil drilling).

Notwithstanding these developments, courts still tend to view a Lone Pine order as an “extraordinary” procedure that may not be appropriate in every case, which, even when appropriate, may not be suitable at every stage of the litigation. See In re Digitek Prod. Liab. Litig., 264 F.R.D. 249, 256 (S.D.W.Va. 2010). Part of the reason for this is the potential for such an order to be used as a “pseudo-summary judgment” device, resulting in a merits determination for some or all plaintiffs without the protections afforded by Federal Rule 56. See Adinolfe v. United Techs. Corp., 768 F.3d 1161, 1168 (11th Cir. 2014). For this reason, courts have yet to adopt Lone Pine orders in commercial, employment, or consumer-related actions that do not involve catastrophic-tort-type allegations.

It bears noting, however, that the burden of production under a Lone Pine order does not require a claimant to prove his or her case, or even to raise a genuine issue of material fact; rather, Lone Pine orders “essentially require” that information that plaintiffs should have had before filing their claims” pursuant to the federal pleading standards. Acuna, 200 F.3d at 340. In other words, if a claim is not frivolous, the requirement to produce pre-discovery prima facie support should not be an onerous demand in contexts other than toxic tort litigation. Indeed, courts have required production of similar information as part of regular discovery in employment cases under the penalty of dismissal. See, e.g., Wilson v. Navika Capital Group, LLC, Civil Action No. H-10-1569, Doc. No. 433, at *1-2 (S.D. Tex. May 21, 2013) (issuing an order compelling limited discovery from a large class of in claimants in an FLSA collective action, noting that “Defendants are entitled to know basic information about the opt-in Plaintiffs, including their positions, location(s) of employment, job duties, salaries, and alleged damages”).

Courts will undoubtedly continue to differ in the frequency and circumstances under which Lone Pine orders are used. Nevertheless, as complex litigation continues to increase, such orders are likely to gain acceptance outside the toxic tort sphere. Defendants in complex commercial or employment matters would be well-advised to consider the Lone Pine order as a recognized, practical, and effective means of eliminating frivolous claims and limiting costs.