The last time I blogged about “Lone Pine” orders was in 2012 on the heels of the entry of such an order in the fracking litigation. See here. At the time, I referenced the then-upcoming release of the movie remake of The Lone Ranger, starring Johnny Depp. I did not see that picture, like probably every person who reads this blog, and apparently nearly everyone else in the world. From what I understand, that movie was a frustrating mess. So too is the state of play in In re: Zimmer Nexgen Knee Implant Products Liability Litigation, at least in the minds of the presiding Judge. And the good news is that a “Lone Pine” order has borne out of her frustration.
As a brief reminder, a “Lone Pine” order typically requires that plaintiffs submit expert affidavits — often before discovery — establishing that the defendant’s product injured the plaintiff. The name is derived from the 1986 NJ decision which required that plaintiffs submit affidavits from experts “supporting each individual plaintiff’s claim of injury and causation by substances from the Lone Pine landfill . . . and supporting each individual plaintiff’s claim of diminution of property value, including the timing and degree of such diminution and its causes.” Lore v. Lone Pine Corp., No. L-33606-85, 1986 WL 637507 (N.J. Super. Ct. Law Div. Jan. 1, 1986).
The Zimmer Nexgen Knee Implant Judge’s Order was short but provided a brief explanation as to why she entered the Order:
The court is prepared to try two more “bellwether” cases in this MDL, and has set aside time in October and November for that purpose. At a recent status conference, however, the court learned that the trials set for this fall—Goldin v. Zimmer, Inc., No. 12 C 2048 and Lewis v. Zimmer, Inc., No. 12 C 4739—will not in fact proceed, or will not address the flex loosening issue that has emerged as central to the Plaintiffs’ theory of liability. The Plaintiffs’ Steering Committee has repeatedly voiced its vehement objection to a “Lone Pine” order, but the court concludes the circumstances warrant entry of such an order. The parties are directed promptly to negotiate the specific terms of such an order. The court declines at this time to strike any pending trial date.
This Order will likely result in plaintiffs having to spend time, money, and effort in securing expert reports for each case in the docket to convince the court they have scientific support for each case, and that each case can be made trial-ready. Predictably, many more cases will be voluntarily dismissed. “Lone Pine” orders can help winnow a mass tort docket and pressure plaintiffs into dropping the truly frivolous claims that do nothing more than artificially inflate the potential exposure the defendant manufacturer is facing by litigating.
This order continues a positive trend. For example, last year, an Eastern District of Kentucky Court similarly entered a “Lone Pine” order in an environmental dispute. Modern Holdings, LLC et al. v. Corning Inc., et al., 2015 WL 6482374 (E.D. Ky. Oct. 27, 2015). The district court denied plaintiffs’ objection to the magistrate judge’s entry of a “Lone Pine” order which required plaintiffs to submit affidavits explaining, among other things, the toxic chemical allegedly causing extensive illness, including manner, pathway, dates, duration, and dose, and the scientific literature supporting causation.” The district court held that the order was justifiable and noted that “[l]ike the Fifth Circuit Court of Appeals expressed in the well-cited case Acuna v. Brown & Root Inc., ‘[e]ach plaintiff should have had at least some information regarding the nature of his injuries, the circumstances under which he could have been exposed to harmful substances, and the basis for believing that the named defendants were responsible for his injuries’ in order to join in the suit in the first place. 200 F.3d 335, 340 (5th Cir. 2000). This Court does not believe the Magistrate Judge’s Case Management Order unduly deprives Plaintiffs of needed discovery. As the Magistrate Judge’s Order expresses multiple times, the Lone Pine order in this case will not circumvent discovery opportunities altogether, but will rather focus the issues for all parties before full discovery proceeds.”