Toxic Tort Issues Related to Spray Polyurethane Foam
Lone Pine and Proposed New Rule 26
Robert F. Redmond, Jr. McGuireWoods IADC Annual Meeting
IssueDoes proposed Rule 26(b)(1) engraft a Lone Pine Order to complex tort cases in federal court?
Lone Pine Orders
Lore v. Lone Pine Corp., No. L-33606-85, 1986 WL 637507, 1986 Super. LEXIS 1626 (Law Div. Nov. 18, 1986) Lone PineEnvironmental Exposure case emanating from Lone Pine Landfill. Multiple plaintiffs vs. 464 Defendants Plaintiffs allege property damage and personal injury claims
The Lone Pine OrderJudge Wichmann issued a case management order that required certain prima facie evidence from Plaintiffs before discovery 1. A The facts of each individual plaintiffs exposure to toxic substanceB. Medical reports substantiating causation 2. A The facts of each plaintiffs diminution of property value claim B. Addresses for each affected property C. Reports from Real Estate experts supporting diminution of value claims
Lone Pine OrderJudge Wichmann gave Plaintiffs four months to provide basic information Extended the deadline an additional 2 1/2 months At end of deadline, Plaintiffs produced A Single ( 2 page) report from RE expertNo medical reports No other required information
Lone Pine OrderJudge Wichmann on medical causation:
Plaintiffs' attorney stated that the doctors and treating physicians contacted by him were unwilling to commit to a causal connection. If they are unwilling, who, then, can provide the information?
Lone Pine Order Crux of the opinion: a trial judge assigned to handle a matter dealing with over 400 defendants and 120 attorneys should direct that at least a modicum of information dealing with damages and causal relationship should be established at the outset of the suit.In this Court's opinion, it is time that prior to the institution of such a cause of action, attorneys for plaintiffs must be prepared to substantiate, to a reasonable degree, the allegations of personal injury, property damage and proximate cause.
Lone Pine ProgenyAcuna v. Brown & Root Inc., 200 F.3d 335, 340 (5th Cir. 2008) (Lone Pine orders are designed to handle the complex issues and potential burdens on defendants and the court in mass tort litigation.)Avila v. Willits Envt'l Remediation Trust, 633 F.3d 828 (9th Cir.2011); (We agree with Acuna's explanation that district judges have broad discretion to manage discovery and to control the course of litigation under Federal Rule of Civil Procedure 16)
Lone Pine in the Mid-Atlantic RegionD.C. Circuit: Favorable
Arias v. DynCorp, 752 F.3d 1011, 1014 (D.C. Cir. 2014) (dismissing 163 individual plaintiffs who failed to complete court-ordered questionnaires).
Such an order is sometimes called a Lone Pine order, in reference to Lore v. Lone Pine Corp., No. L-33606-85, 1986 N.J. Super. LEXIS 1626, 1986 WL 637507 (N.J. Superior Ct. Nov. 18, 1986). It generally requires plaintiffs in a toxic torts case to produce affidavits setting forth some basic information regarding their alleged exposure and injury.
Lone Pine in the Mid-Atlantic Region3rd Circuit: Generally favorableIn re Asbestos Prods. Liab. Litig. (No. VI) 718 F.3d. 236, n. 2 (3d Cir. 2013) (Affirming order requiring plaintiffs to provide certain medical and exposure information at the outset of the case.) McMunn v. Babcock & Wilcox Power Generation Group, Inc. 896 F. Supp. 2d 347 (W.D. Pa. 2012) (dismissing claims and counts based on plaintiffs failure to comply with Lone Pine order
Lone Pine in the Mid-Atlantic Region4th Cir. Unfavorable"[g]iven a choice between a 'Lone Pine order' created under the court's inherent case management authority and available procedural devices such as summary judgment, motions to dismiss, motions for sanctions and similar rules, I believe it more prudent to yield to the consistency and safeguards of the mandated rules.. . . In this case, the defendants' "[c]laims of efficiency, elimination of frivolous claims and fairness [may] effectively [be] addressed using the existing and standard means." Id. Hagy v. Equitable Prod. Co., 2012 U.S. Dist. LEXIS 28439, 10 (S.D. W. Va. 2012) quoting In re Digitek 264 F.R.D. 249, 259 (S.D. W. Va. 2010)
Rule 26(b)(1)Scope of Discovery
Current Rule 26(b)(1)
Scope in General. Unless otherwise limited by courtorder, the scope of discovery is as follows: Parties mayobtain discovery regarding any nonprivileged matterthat is relevant to any partys claim or defenseincluding the existence, description, nature, custody,condition, and location of any documents or other tangiblethings and the identity and location of personswho know of any discoverable matter. For good cause,the court may order discovery of any matter relevant tothe subject matter involved in the action. Relevant informationneed not be admissible at the trial if the discoveryappears reasonably calculated to lead to thediscovery of admissible evidence. All discovery is subjectto the limitations imposed by Rule 26(b)(2)(C).
Rule 26(b)(1)Scope of DiscoveryAll discovery is subjectto the limitations imposed by Rule 26(b)(2)(C)
(C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or(iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.
Proposed Rule 26(b)(1)Scope of DiscoveryScope in General. Unless otherwise limited by courtorder, the scope of discovery is as follows: Partiesmay obtain discovery regarding any nonprivilegedmatter that is relevant to any partys claim ordefense and proportional to the needs of the case,considering the amount in controversy, the importanceof the issues at stake in the action, the partiesresources, the importance of the discovery in resolvingthe issues, and whether the burden or expense ofthe proposed discovery outweighs its likely benefit.Information within this scope of discovery need notbe admissible in evidence to be discoverable.
Proposed 26(b)(1) incorporates elements of 26(b)(2)(C)
What does Proposed 26(b)(1) Require? New Rule requires the Rule 26(b)(2)(C) consideration before discovery: Before discovery, the Court must consider and balance the factors previously listed in 26(b)(2)(C) :
1) the needs of the case; 2) the amount in controversy; 3) the importance of the issues at stake in the action; 4) the importance of the discovery in resolving the issues; 5) whether the burden and expense of the proposed discovery outweighs its likely benefit:
How Does Proposed Rule 26(b)(1) Require a Lone Pine Order?Current Law:
In evaluating requests for Lone Pine or modified case management orders, courts have found that a number of factors may be relevant, including (1) the posture of the litigation, (2) the case management needs presented, (3) external agency decisions that may bear on the case, (4) the availability of other procedures that have been specifically provided for by rule or statute, and (5) the type of injury alleged and its cause.
In re Fosamax Prods. Liab. Litig., 2012 U.S. Dist. LEXIS 166734, 5-6 (S.D.N.Y. Nov. 20, 2012) citing Digitek, 264 F.R.D. at 256 (S.D. W.Va. 2010)
How a Lone Pine Order Would Meet the New Requirements of Rule 26(b)(1) A Lone Pine Order would allow the Court to: Identify the importance of the issues at stake in the action The importance of categories of discovery to resolving the issues The parties resources (i.e PSC resources) andDetermine whether the burden or expense of the proposed discovery outweighs its likely benefit.
How a Lone Pine Order Would Meet the New Requirements of Rule 26(b)(1) A Lone Pine Order would require a prima facie showing from plaintiffs at the outset of discovery thereby ensuring that a defendant is not burdened by weak or implausible claims A Lone Pine Order allows the Court to determine, early on, the important issues in resolving the case and the parties resources. A Lone Pine Order allows a court to meet its obligation to assess the proportionality of discovery
How to Convince Courts to Adopt Lone Pine Orders As Part of New Rule 26(b)(1) Highlight the benefits to the Court of Lone Pine orders:
Typically, Lone Pine orders require plaintiffs to provide an affidavit by a specific date that states the following: "(1) the identity and amount of each chemical to which the plaintiff was exposed; (2) the precise disease that or illness from which the plaintiff suffers; and (3) the evidence supporting the theory that exposure to the defendant's chemicals caused the injury in question."
"A court ordering this sort of information to be produced early in the discovery process provides a tremendous advantage to defendants wishing to dispose of frivolous claims quickly." Id. at 367..".
McManaway v. KBR, Inc., 265 F.R.D. 384, 385 (S.D. Ind. 2009)
How to Convince Courts to Adopt Lone Pine Orders As Part of New Rule 26(b)(1) Show the Court that Lone Pine orders satisfies the Courts new obligations under Rule 26(b)(1):
Cite to In re Digitek and In re Fosamax for factors supporting Lone Pine orders
Cases that have adopted Lone Pine orders:
See In re Avandia Mktg., Sales Practices and Prods. Liab. Litig., MDL No. 1871, 2010