Lone Pine Meets Daubert

By Wendy Pearson

In addition to the precedent-setting cases governing expert admissibility, Lone Pine ought to be on the list of cases experts know about, particularly experts testifying in mass tort or toxic tort litigation, since failure to meet admissibility requirements at the Lone Pine order stage can disqualify an expert.

A Lone Pine order is a modified case management order requiring plaintiffs to provide prima facie evidence in support of their legal claims before discovery begins or during the discovery phase. If the court determines that plaintiffs have not complied with the order, the entire case can be dismissed.

Let’s back it up and break it down

First, a case management order (CMO) is an order issued by the presiding judge that contains a schedule of specific milestones (e.g. completion of discovery, mediation, pre-trial motions, start date of trial) that both parties must abide by in order to keep the case moving forward. During the litigation process, a new CMO may be issued by the court if a motion by either side to modify the CMO is granted by the judge.

Next, what is prima facie evidence? In a lawsuit, the party with the burden of proof (usually the plaintiff) is required to present sufficient facts to support its theory of causation linking defendant’s action to the legal claims made in the complaint. This evidence in legal terms is referred to as “prima facie.” Plaintiffs will rely on expert opinions to establish the causal link between the illness, injury or decrease in property value and the defendant’s product, conduct or operations.

Ordinarily, at the completion of expert discovery the defendant may file a Daubert motion to exclude expert testimony concurrently with a motion for summary judgment, arguing that the plaintiffs do not have admissible prima facie evidence to bring the case to trial. At this stage, the court will grant or deny the motions. Depending on the rulings, the case will proceed toward trial or will be dismissed. That’s how the litigation process typically progresses, but not when a Lone Pine order enters the process.

Lone Pine orders

Lone Pine orders originate from a 1986 New Jersey state court case, Lore v. Lone Pine Corp., 1986 WL 637507 (N.J. Super. Ct. Nov. 18, 1986). In that matter, plaintiffs sued approximately 500 defendants alleging pollution from the Lone Pine Landfill had caused their personal injuries and diminution in property values. Nine months later, the trial court entered a modified CMO requiring the plaintiffs to present prima facie evidence supporting their causation theories within a six month time frame. When plaintiffs failed to provide the required documentation by the order’s deadline, the court dismissed the case with prejudice (meaning the plaintiffs were barred from filing the same claims again).

Since that ruling, the acceptance of and structure of Lone Pine orders have varied by both federal and state jurisdictions. When orders are entered, their commonality is the prerequisite for plaintiffs to demonstrate evidence in support of their claims before the court will permit discovery to begin or to continue. Therefore, in advance of full discovery, medical and scientific experts retained by the plaintiffs are required to submit affidavits or expert reports outlining their opinions and the basis of those opinions on causation issues.

Lone Pine orders are disconcerting for experts because the trial court will evaluate the strength of an expert’s opinions in determining whether the plaintiffs have presented sufficient proof of their legal claims. Though experts are given limited time to conduct research and formulate opinions, the judge will perform an admissibility test on the expert’s testimony. Depending on the court, it can take the form of a Daubert or Frye analysis, and an expert can be excluded at this stage in the process. Without expert testimony, the court likely will dismiss those claims or the entire case for plaintiff’s failure to comply with the Lone Pine order. Given the increasing use of these modified CMOs, it is worthwhile to briefly summarize some recent federal court decisions in which applying Daubert to experts under a Lone Pine order was discussed.

When Lone Pine enters a mass tort MDL

The applicability of Daubert was raised by the district court when it entered a pre-trial order styled after Lone Pine for a subset of Plaintiffs in Vioxx Prods. Liab. Litig., 557 F. Supp. 2d 741 (E.D. La. 2008), a mass tort multidistrict litigation proceeding. In the early 2000s, thousands of plaintiffs sued defendant, Merck, for alleged injuries resulting from taking the drug Vioxx.  Cases were consolidated, and a Master Settlement Agreement (MSA) was negotiated. Merck then filed a motion for a Lone Pine order for a group of plaintiffs that opted out of the MSA. The district court granted the motion requiring those non-settling plaintiffs to produce an expert report by a medical expert showing each plaintiff’s injury was caused by Vioxx, and that the injury occurred within a specified time period.

When entering the Lone Pine order the district court was quite clear that the prima facie expert reports for each plaintiff were not intended to withstand the scrutiny of Daubert: “the Court is not requiring that Plaintiffs provide expert reports sufficient to survive a Daubert challenge or even provide an expert who will testify at trial. Rather, the Court is requiring Plaintiffs to make a minimal showing consistent with Rule 26 that there is some kind of scientific basis that Vioxx could cause the alleged injury.” Despite the easing of the Daubert standard at the Lone Pine order stage, the court determined plaintiffs failed to comply with the order and dismissed that subset of the non-settling plaintiffs.

When Lone Pine enters an environmental toxic tort

In contrast to the Vioxx case, the full force of Daubert was exercised by the courts in Avila v Willits Envtl. Remediation Trust, 633 F.3d 828 (9th Cir. 2011). In this toxic tort action hundreds of plaintiffs alleged their illnesses were caused by exposure to chemicals from a chrome-plating facility. Five years after the case was filed, the trial court granted defendants’ motion for a Lone Pine order requiring a subset of the plaintiffs to provide prima facie evidence of exposure and causation. Plaintiffs submitted an expert report but the district court excluded plaintiffs’ prima facie expert under Federal Rule of Evidence 702 and Daubert for lacking the requisite expertise, failing to show causation, and not having reliable opinions. Upon excluding their expert, the court dismissed this group of plaintiffs.

On appeal, the 9th Circuit upheld the district court’s use of Daubert and found the court did not abuse its discretion, stating, “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 9th Circuit affirmed both the district court’s exclusion of the expert’s testimony and dismissal of the plaintiffs’ case for failing to comply with the Lone Pine order.

When Lone Pine enters a cost recovery case

Recently, the United States District Court for the Eastern District of Missouri addressed the admissibility of expert evidence under the Daubert standard at the Lone Pine hearing stage in Asarco LLC v. NL Industries, Inc., 2015 WL 2453491.  Interestingly, this case was neither a mass tort nor toxic tort; it was a dispute over contribution and cost recovery. Asarco had sued several defendants to recover monies it paid to the government concerning contamination at a number of sites. The suit was brought under CERCLA, the environmental statute that permits a party to seek contribution from another party if certain criteria are met. The district court entered a modified CMO requiring Asarco to provide prima facie evidence on the issue of defendants’ liability under CERCLA.

Both sides submitted expert reports and filed motions to exclude each other’s experts.  When considering the applicability of Daubert to the admissibility of experts at the Lone Pine order stage, the district court stated, “the purpose of a Daubert motion is to ensure that only reliable and relevant expert testimony is presented to a jury. Because the judge sits as the trier of fact at the Lone Pine hearing stage, the usual concerns of Daubert are not present.”  Relying on prior 8th Circuit decisions, the district court believed that, “some limited Daubert analysis is appropriate at this stage for purposes of determining whether Asarco has established its prima facie case, but will in its discretion apply a more relaxed Daubert standard for admitting the testimony.” The court, finding both experts to be sufficiently qualified to give their respective opinions, denied both Daubert motions.

Lone Pine and state courts

While a small number of states (California, Montana, New York, Illinois, Indiana, Wisconsin, Texas, and of course New Jersey) have embraced Lone Pine orders as case management tools, other states have explicitly rejected their entry (see In Re Avandia Litigation February Term 2008, Case No. 2733 where the Court of Common Pleas for Philadelphia County, PA rejected Lone Pine because there is no Pennsylvania Rule of Civil Procedure authorizing such an order).

Most recently and quite notably, the Colorado Supreme Court upheld an appeals court decision that Lone Pine orders “are not permitted as a matter of Colorado Law.” (Antero Res. Corp. v. Strudley, No. 13SC576, 2015 WL 1813000 (Colo. April 20, 2015). Although this was a state court matter, it has received widespread coverage because the law suit involved alleged personal injuries from exposure to fracking pollutants, plus the issue of entering Lone Pine orders stayed current as arguments were heard and decisions were made all the way to the Colorado Supreme Court.

Lone Pine and Experts

When considering retention in a case under a Lone Pine order or that has the likelihood of a Lone Pine order being entered, it is very important to consider whether you are sufficiently qualified to give the opinions being sought. As shown below, the court’s decision on whether or not to admit a prima facie expert was based in part on whether the expert had the requisite qualifications.

In the Avila case, plaintiffs retained a medical and toxicology expert self-described as a “Physician/Scientist/Attorney” as their prima facie expert. His areas of expertise included cancer immunology and biology, basic and clinical immunology, and medical toxicology, and his role was to opine on “the condition for which recovery was sought, 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 district court found the prima facie expert was not qualified to opine on the chemicals generated by and emitted from the chrome-plating facility, and thus found his opinions on causation to be unreliable.  The 9th Circuit agreed.

In Asarco, the district court also reviewed the prima facie expert’s qualifications, and ultimately determined that his 30 years of professional experience with CERCLA rendered him sufficiently qualified to offer expert opinions responsive to the Lone Pine styled order. Furthermore, finding his expert report to be “carefully researched, detailed and relevant,” the court then denied the motion to exclude him.

Summary

Before accepting retention as a prima facie expert in a case under a Lone Pine order, ask the attorney important questions to gain perspective on whether the case is right for you. Besides considering your qualifications, consider how much effort is required to formulate your opinions, because the time allotted to provide opinions will be relatively short in comparison to the typical schedule for expert discovery. Also, ask about the quality and amount of factual material available on which to rely, since the order was likely entered early in the discovery process. Finally, it is critical to know the jurisdiction and the level of scrutiny you will face under Daubert or a similar state standard at the Lone Pine hearing.

We would love to hear from our readers. What experience do you have with Lone Pine orders?

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Wendy Pearson

Wendy Pearson is the founder of Pearson Research Group. She has over 15 years of experience providing strategic litigation support and expert witness support on over 50 major cases involving contaminants in the environment. Ms. Pearson’s expertise encompasses bridging the gap between science, engineering and the law. She assists clients with developing case strategy and understanding technical issues, and works with expert witnesses to ensure high quality work product. Her advice and knowledge on environmental issues is relied on throughout all phases of the litigation process. She assists clients in locating qualified experts, preparing document production requests, preparing for depositions of both fact witnesses and experts, preparing Daubert motions and responses, providing peer-review of expert reports, and preparing for direct examination and cross examination of experts at trial. Ms. Pearson also fully supports expert witnesses throughout the litigation process including estimating budgets, assisting with expert reports, deposition preparation and trial preparation, and even trial demonstratives. Prior to forming Pearson Research Group, Ms. Pearson developed her expertise at Matson & Associates (M&A), an environmental consulting firm specializing in environmental forensics and litigation support. Working closely with Dr. Jack Matson, she successfully grew the company, involving the firm in more complex and high-profile litigation. Ms. Pearson refined her ability to evaluate operations and practices at industrial sites for compliance with industry and regulatory standards concerning the use, handling, storage, treatment and disposal of chemicals and waste streams. With her academic training, management capabilities, and passion for science, engineering and the law, Ms. Pearson quickly took on a leadership role as Project Manager, acting as the primary point of contact with clients and overseeing research efforts of staff, and ultimately becoming President of the company, directing the vision and mission of the firm.

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