Lone Pine Order Forces Plaintiffs To Ante Up

Last week, the court in In re: Fosamax Products Liability Litigation granted Defendant Merck & Co.'s motion for a Lone Pine order. No. 06 MD 1789 (S.D.N.Y. Nov. 20, 2012). Lone Pine orders are valuable tools in defending mass tort and product liability litigation, forcing each plaintiff to demonstrate evidence of scientific proof of their claim before their claim is allowed to progress.

Lone Pine orders originate from a 1986 New Jersey state court case, Lore v. Lone Pine Corporation, No. L-33606-85 (N.J. Sup. Ct. Law Div.) . There, the court issued a case management order requiring plaintiffs to provide expert reports supporting a causal link between their claimed injuries and exposure to defendant's landfill. See Lone Pine Corp., No. L-33606-85, 1986 WL 637507 (N.J. Sup. Ct. Law Div. Nov. 18, 1986) (dismissing plaintiffs' cases where they had failed to provide adequate expert evidence for their claims).

Federal courts have returned repeatedly to this type of case management order, citing FRCP 16(c)(2)(L) for the authority to do so. The rule gives courts broad authority 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."

This case management authority has been particularly useful in toxic tort litigation as a way of handling complex issues such as identifying the substance that allegedly caused harm and providing evidence that a causal link exists. See, e.g., Acuna v. Brown & Root Inc., 200 F.3d 335, 340 (5th Cir. 2000).

Lone Pine orders were slower to catch on in pharmaceutical product liability cases, where the identity of the allegedly harmful substance is not generally at issue. However, causation in pharmaceutical litigation is often fraught with uncertainty, and MDL courts have been issuing Lone Pine orders with increasing frequency as a tool to untangle the issues surrounding causation. See, e.g., In re Avandia Mktg., Sales Practices and Prods. Liab. Litig., MDL No. 1871, No. 2007-MD-1871 (E. D. Pa. Nov. 15, 2010) (entering Lone Pine order); In re Bextra and Celebrex Mktg. Sales Practices and Prod. Liab. Litig., MDL No. 1699, No. M:05-CV-01699-CRB (N.D. Cal. Aug. 1, 2008) (entering Lone Pine order); In re Vioxx Prods. Liab. Litig., MDL No. 1657, 557 F. Supp. 2d 741 (E.D. La. 2008) (affirming Lone Pine order entered Nov. 9, 2007); In re Rezulin Prods. Liab. Litig., MDL No. 1348, No. 00 Civ. 2843...