We’ve written about Lone Pine orders many times before. (Here and here, for example.) In brief, a Lone Pine order (so-called because that is the name of the seminal New Jersey case) requires plaintiffs to furnish medical evidence, usually in the form of an expert affidavit, showing that the plaintiff suffered from the alleged injury and/or that such injury was caused by the product in question. Drug and device defendants frequently ask for Lone Pine orders in aggregated litigation, with the goal of getting rid of the junky part of the case inventory. And by “part,” we are usually talking about more than half of the cases. It’s no surprise that plaintiff lawyers hate Lone Pine orders. Compliance puts a hurt on plaintiff lawyer pocketbooks and leverage. Sadly, some benighted judges steer clear of Lone Pine orders, for reasons that are unclear or specious. Many defense hacks will tell you that the best shot at getting a Lone Pine style order is to call it something else. It’s as if the name itself is poison. But things change once a defendant settles a big chunk of cases. At that point, many judges will enter a Lone Pine-ish order as a form of “docket control.” The order cuts off the tail, makes the settlement viable, and rewards the defendant for playing ball. One cannot help but wonder why, if the order makes sense near the end of the litigation, it doesn’t make even more sense much earlier, when it could have done some real good and avoided undue litigation expense.
In today’s case, Warman v. Livanova Deutschland, GMBH, 2023 WL 7383158 (Ohio Ct. App. Nov. 8, 2023), Lone Pine takes root in Ohio. Warman is a one-off case, rather than the usual aggregated mass tort extortion festival, but the court’s use of a Lone Pine order is still a breath of fresh (pine aroma) air. The plaintiff sued a device manufacturer and a hospital, alleging that he had been exposed to harmful bacteria from a heater-cooler device employed during his heart surgery. The plaintiff claimed that he developed a serious infection after exposure to the bacteria. His lawsuit bounced around among various courts and then ended up in the Hamilton County Court of Common Pleas. Then the plaintiff lobbed a bunch of discovery requests at the defendants. They balked. The defendants demanded that, before revving up the discovery sadness machine, the plaintiff should come across with some proof that he had actually developed a post-operative infection and that it had some causal connection to bacteria emitted by the heater-cooler device. The trial court considered this request (the fact that it did not reject it outright was already a small victory), and paid attention to the defendants’ point that the plaintiff side should have whatever medical records needed to establish the existence of a post-operative infection.
The plaintiff lawyer objected to the Lone Pine order, but assured the court that “I’ve got all kinds of medical records that he’s got an infection. Do you want me to have a doctor produce a report that my client got an infection as a result of the surgery? I can do that.” Good, said the court, go ahead and do that. The court gave the plaintiff 60 days to show evidence of an infection. Those 60 days came and went and the plaintiff “had not produced an expert statement or other evidence of any post-operative infection.” Then the trial court issued an order making further discovery contingent on production of the expert report. The court set a status conference approximately 90 days in the future and warned the plaintiff that the plaintiff needed to produce an expert report by the status conference “or the cases will be dismissed.”
Now picture calendar pages flipping by. Now picture the courtroom on the date of the status conference. Now picture an empty chair at the plaintiff counsel table. The plaintiff lawyer did not show up and had not filed an expert report. The plaintiff lawyer had not lived up to his promise. But the court did. It dismissed the case. A couple of hours later, the plaintiff lawyer filed an expert disclosure identifying an expert who would testify that the plaintiff’s exposure to the heater-cooler device during the operation placed him “at risk” for an infection. The expert did not discuss whether the plaintiff had actually developed an infection or even whether he had suffered any unexplained negative symptoms after his surgery. Armed with this rather unimpressive expert disclosure (truly too little too late), the plaintiff appealed dismissal of his case, arguing “that the trial court unfairly truncated discovery.”
The appellate court affirmed the dismissal. The appellate court viewed the Lone Pine order as essentially “a discovery order.” Such discovery orders are largely entrusted to the trial court’s discretion, and it was impossible to say here that the Lone Pine features of the discovery order constituted an abuse of discretion. The court distinguished away a bad Ohio Lone Pine precedent, pointing out that the plaintiff in Warman did not argue that “he was denied access to any specific tests, documents, or other information from defendants that would have enabled his expert to substantiate whether he had an infection.” Rather, compliance with the order was entirely in the plaintiff’s control and did not depend on any of the discovery plaintiff had requested, nor did the plaintiff ever seek to compel the discovery. It was telling that the plaintiff lawyer utterly failed to tell how specific information in the possession of the defendants would have supplemented medical records and shown that an infection occurred: “His inability to do so suggests that the problem with filing a motion to compel was not just that it may have been met with skepticism or hostility; it was that the motion would have lacked specificity and substance.” Further, the tardy plaintiff expert disclosure was vague and inadequate. The expert said that the infections at issue are hard to diagnose and can incubate for five to seven years. Okay. But the disclosure was authored more than seven years after the surgery. How can the existence of an infection still be a jump ball? The plaintiff expert never explained how any additional information “would illuminate a diagnosis that could not be reached from the medical records alone.”
The appellate court decided that the trial court’s stay of discovery was an appropriate exercise of discretion. The stay was “justified by a weightier interest than efficiency.” Rather than “rushing [the plaintiff] out the door, the court’s order guarded against a potentially frivolous claim that, although sufficiently pleaded to survive a motion to dismiss, apparently lacked basic evidentiary support.” The defendants were not hiding any information. The plaintiff simply did not have a case. Because the plaintiff failed to substantiate that he had ever had the claimed infection, dismissal was appropriate.
We offer congratulations and we offer thanks (we can read a calendar) to defense counsel, Joe Winebrenner at Nelson Mullins, for winning the appeal in this important and excellent case.