Courts Use Experts as Early Warning System

By Robert Ambrogi Esq
“Lone Pine” sounds like a name more suited to a back-country campground than to a judicially imposed case-management device. Even so, courts are increasingly using so-called Lone Pine orders at the early stages of complex litigation to weed out unfounded claims and narrow the range of issues.

As courts require plaintiffs to provide stronger proof of a claim’s viability early in a case, they are also requiring them to substantiate their claims with expert evidence. As a result, well before a case reaches the discovery phase, the strength or weakness of an expert’s opinion can seal a plaintiff’s fate. That makes having the right expert, from the outset of a case, all the more important.

Not surprisingly, defense lawyers welcome Lone Pine orders as a sort of early warning system for frivolous cases. But some commentators question whether these orders are fair to plaintiffs. Are they, as one commentator wrote, “no more than a court initiated, premature summary judgment motion”?

The latest example of this emerging trend is a Jan. 27, 2011, opinion from the 9th U.S. Circuit Court of Appeals, Avila v. Willits Environmental Remediation Trust. For the first time, the 9th Circuit panel directly addressed the appropriateness of a Lone Pine order. Even more, the court specifically addressed whether such an order could require expert evidence without violating established rules of procedure for discovery and summary judgment.

In this case, the 9th Circuit upheld the Lone Pine order and the requirement of expert evidence, concluding that the trial judge’s orders were consistent with the Federal Rules of Civil Procedure and with the Supreme Court’s seminal opinion on expert evidence, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

What is a Lone Pine Order?

With mass tort and other forms of complex litigation weighing heavily on the judicial system, judges are becoming more aggressive in actively managing the cases on their dockets. One tool they are using is the Lone Pine order. Although it had its origins in toxic tort litigation, judges are invoking it in an increasing array of complex cases.

A Lone Pine order is a case management device in which the judge requires plaintiffs to make a prima facie showing of their injuries and damages and requires them to provide some level of evidentiary support for the key aspects of their claims. The purpose is to weed out unsupported claims in order to lessen the burdens on both the courts and defendants.

The orders derive their name from a 1986 New Jersey toxic tort case, Lore v. Lone Pine Corp., in which the judge required plaintiffs, shortly after they filed their lawsuit, to submit documentation of their exposure to toxic substances along with medical or other expert evidence showing that the toxins were the cause of their injuries. When the plaintiffs were unable to provide this documentation, the judge dismissed their case.

In the 25 years since that case, Lone Pine orders have become increasingly common among trial judges in both state and federal courts. Even so, only one other federal circuit court has directly ruled on their propriety. In a 2000 opinion, Acuna v. Brown & Root Inc., the 5th Circuit upheld the use of a Lone Pine order as consistent with “the wide discretion afforded district judges over the management of discovery under Fed.R.Civ.P. 16.”        

Court Strikes Expert’s Report, Dismisses Plaintiffs

In the 9th Circuit Avila case, the trial judge issued a Lone Pine order directing certain plaintiffs to make a prima facie showing of exposure and causation. The judge ordered each of the plaintiffs to provide a written statement setting forth “all facts” supporting his or her claim of exposure, together with a written statement from an expert describing the condition for which the plaintiff sought recovery, identifying the chemical to which the plaintiff was exposed, explaining the route of exposure, opining on causation, and setting forth the scientific and medical basis upon which the opinion was based.

The plaintiffs complied with the judge’s order, but the defendants quickly responded by asking the judge to strike the expert’s report as insufficient under Daubert and the Federal Rules of Evidence. The trial judge agreed and struck the expert’s report. That left the plaintiffs without the proof they needed under the Lone Pine order, so the judge dismissed them from the case.

On appeal, the plaintiffs asked the 9th Circuit to invalidate the Lone Pine order. They contended that the judge’s order bypassed established rules of procedure for discovery and summary judgment.

For the 9th Circuit, it was its first occasion to rule directly on the propriety of a Lone Pine order. Even so, it wasted little discussion before siding with the 5th Circuit and concluding that such orders fall with the broad discretion of trial judges to manage discovery and control the course of litigation.

“Rule 16(c)(2)(L) authorizes a court 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,’” the court noted. “No basis appears for us to cordon off one type of order — a prima facie order on exposure and causation in toxic tort litigation — from the universe of case management orders that a district court has discretion to impose.”

Squaring Lone Pine with Daubert

Having decided that there is nothing wrong with a Lone Pine order from a case-management perspective, the 9th Circuit next considered whether the order skirted established procedure governing the admissibility and use of expert testimony. The trial judge’s use of the order, the circuit concluded, was fully consistent with Daubert.

“Daubert obliges a district judge to determine at the outset … whether an expert’s testimony will assist the trier of fact by assessing whether the methodology underlying the testimony is valid and reliable,” the circuit court noted. The judge has broad latitude not only to determine whether an expert’s testimony is reliable, but also in deciding how to determine reliability, it added.

The judge’s use of the Lone Pine order in this case was in accord with his responsibility under Daubert, the court concluded. “A case management order that focuses on key issues for expert opinion is in aid of the Daubert responsibilities the district judge must discharge.”

Another argument raised by the plaintiffs on appeal was that the trial judge’s Lone Pine order impermissibly made discovery unilateral because it forced them to make disclosures before any disclosures were required of the defendant. Here again, the 9th Circuit upheld the judge’s order.

“Federal Rule of Civil Procedure 26(a)(2)(C) gives a district court authority to determine when — and in what sequence — expert testimony must be disclosed,” the court said.        

Are Lone Pine Orders Fair?

Given the burdens of proof these orders place on plaintiffs at so early a point in a lawsuit, are they fair?

In a sense, a Lone Pine order places an even higher burden of proof on a plaintiff than would a summary judgment motion. And it does this at a stage of the litigation when the plaintiff has had no opportunity to seek discovery from the defendant.

Writing in the Journal of Land Use & Environmental Law in 1996, commentator John T. Burnett described Lone Pine orders as “a wolf in sheep’s clothing.”

“Complex litigation does not afford a court free reign to disregard mandated procedural rules under the guise of inherent case management authority,” Burnett wrote. “When courts depart from mandated rules and use devices such as Lone Pine orders, they diminish the legitimacy of the legal process by adding uncertainty and inconsistency to an otherwise regimented system.”

But defense lawyers counter that Lone Pine orders require nothing more of plaintiffs than what they should already have going in to a lawsuit. That was the argument made by Ben J. Scott, a defense lawyer in Memphis, Tenn., in a 2009 article published in the American Bar Association’s Mass Tort newsletter.

“The Lone Pine order places the horse before the cart,” Scott wrote. “Prior to full-scale discovery, the order requires plaintiffs to demonstrate proof of the basic facts supporting each plaintiff’s claims, proof that they ingested the drug, proof that they suffered an injury, and an expert opinion that the ingested drug caused the injury at issue.”

Or as James Beck and Mark Herrmann wrote at the blog Drug and Device Law about Lone Pine orders: “Unless a court does something to separate the wheat from the chaff, meritless claims – involving plaintiffs who never ingested the defendant's drug, or who ingested it but the drug cured what ailed 'em – can remain pending for months or years.”

Of course, it is always good practice to have your expert in place even before you file a lawsuit. This latest ruling from the 9th Circuit serves to underscore that point.

Robert Ambrogi Esq

We are proud to partner with an author of Bob’s caliber to provide exclusive articles for our legal clients and leading industry experts. Robert J. Ambrogi is a news media veteran and the only person ever to hold the top editorial positions at the two leading national U.S. legal newspapers, the National Law Journal and Lawyers Weekly USA. He is currently a Massachusetts lawyer who represents clients at the intersection of law, media and technology. He is also internationally known for his writing and blogging about the Internet and technology. Media and Technology Law Bob represents a range of businesses and individuals, concentrating in print and electronic media companies and the editorial, sales, marketing and technology professionals who work in them. He also counsels businesses and individuals in employment matters. Arbitration and Mediation An established professional in alternative dispute resolution, Bob has been an arbitrator since 1994, focusing on labor and employment and securities disputes. A mediator in a range of civil disputes, Bob completed the training required by Massachusetts law to protect confidentiality.

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