Lone Pine Orders–Shutting The Door On Frivilous Toxic Tort Suits

A Lone Pine Order is a case management tool that requires toxic tort plaintiffs to produce credible evidence to support a key legal component of their claim prior to the commencement of pre-trial discovery.  As Niall A. Paul and Timothy D. Houston of Spilman Thomas & Battle write in a recent IADC Newsletter article titled, "Checking Meritless Mass Tort Claims at the Door–Lone Pine Case Management Orders Reinforce the Obligation of Plaintiffs’ Counsel to Have a Case Before Filing Suit," a Lone Pine Order should be designed to weed out frivolous claims "before a defendant is forced to undergo the financial rigors of protracted discovery and invest hundreds of thousands of dollars and irrecoverable time only to face the stark reality that plaintiffs are devoid of credible evidence–to establish exposure, injury or causation."   In light of the the enormous defense costs consumed in document production and pretrial and the increasing emphasis by in-house counsel on cost control in toxic tort litigation, it is surprising that Lone Pine Orders are not sought by defense counsel more frequently than they are.  A Lone Pine Order can require the plaintiffs to produce credible evidence on the issues of (1) exposure; (2) causation; and (3) damages.  However, that may impose a greater burden on plaintiffs’ counsel than some courts, particularly state courts, may be willing to require early in a litigation. However, I have had success in identifying a single issue–my client’s best issue–and seeking a Lone Pine Order on that sole issue rather than on multiple issues.  For example, in the Happyland Social Club Fire Litigation, which case arose from the deaths of some 87 people at an illegal social club in New York City on March 23, 1990 (see photo above), defendants obtained a  Lone Pine Order on the sole issue of product identification.  Plaintiffs’ theory of the case was that the defendants’ products were fire initiators, fire promoters or, alternatively, emitted toxic fumes when burned.  The contents of the social club were stored by Plaintiffs Steering Committee in a huge warehouse in lower Manhattan.  The Catch-22 for plaintiffs was that if a  product was in the warehouse more or less intact, it could not  have burned and contributed to the deaths of the plaintiffs.  On the other hand, if the product was consumed in the fire, there was no way of identifying the product or its manufacturer.  As a result, plaintiffs were not able make a proper product identification in many instances, pursuant to the Lone Pine Order and, consequently, many defendants were dismissed from this Bronx state court case. It is unlikely that a state court judge in the Bronx would have entered a more onerous order.  In every instance were they are employed, Lone Pine Orders foster judicial economy and substantially reduce the litigationn costs for all parties. In In re Vioxx, 557 F.Supp. 2d 741 (E.D.La. 2008), the federal district court in Louisiana observed that Lone Pine Orders also reduced the litigation expenses incurred by plaintiffs’ counsel in prosecuting mass tort actions.