A Live 90-Minute Teleconference/Webinar with Interactive Q&A

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1 presents Lone Pine Orders in Class Action, Mass Tort and Products Liability Litigation Bringing and Defending Pre-Trial Motions Regarding Exposure, Causation and Damages A Live 90-Minute Teleconference/Webinar with Interactive Q&A Today's panel features: Eric Anielak, Partner, Shook Hardy & Bacon, Kansas City, Mo. Jay M. Jalenak, Partner, Kean Miller, Baton Rouge, La. John Randall Whaley, Partner, Neblett Beard & Arsenault, Alexandria, La. Thursday, February 18, 2010 The conference begins at: 1 pm Eastern 12 pm Central 11 am Mountain 10 am Pacific You can access the audio portion of the conference on the telephone or by using your computer's speakers. Please refer to the dial in/ log in instructions ed to registrations. CLICK ON EACH FILE IN THE LEFT HAND COLUMN TO SEE INDIVIDUAL PRESENTATIONS. If no column is present: click Bookmarks or Pages on the left side of the window. If no icons are present: Click View, select Navigational Panels, and chose either Bookmarks or Pages. If you need assistance or to register for the audio portion, please call Strafford customer service at ext. 10

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3 Lone Pine Orders in Class Action, Mass Tort and Products Liability Litigation An Overview of Lone Pine Orders Eric Anielak Shook, Hardy &B Bacon, LLP L.L.P. February 18, 2010

4 Outline of Presentation What Are Lone Pine Orders? Purpose of Lone Pine Orders Courts Authority Elements of the Typical Lone Pine Order Factors That Prompt Their Use Use of Lone Pine Orders by the Courts Cases Suited for Lone Pine Orders 2

5 What Are Lone Pine Orders? Lore v. Lone Pine Corp.,1986 WL , No. L (N.J. Super. Ct. Law Div. Nov. 18, 1986) Multiple plaintiffs sued 464 defendants, alleging water from Lone Pine Landfill caused personal injuries and declining property values. Case management order required plaintiffs to present basic facts supporting their claims, including: for personal injury claims, expert reports supporting each plaintiff s claim of injury and causation, and for property damage claims, expert reports supporting claims, including timing and degree of damage as well as causation When plaintiffs failed to comply with the court s order, the court dismissed with prejudice. 3

6 What Are Lone Pine Orders? Case management tool Requires plaintiffs to define their claims and to demonstrate expert evidence supporting those claims early in the litigation. 4

7 Purpose of Lone Pine Orders Designed to help courts define the issues, narrow the scope of discovery, and gain control over complex litigation at an early stage. Separating the wheat from the chaff 5

8 Elements of the Typical Lone Pine Order Lone Pine orders require plaintiffs to provide expert evidence to the court or defendants supporting essential elements of their claims: specific causation product identification product exposure date of exposure method of exposure injury, disease, or damage The orders include a deadline by which plaintiff must submit the required expert evidence. Finally, the orders usually include a penalty for non- compliance, such as dismissal of the action. 6

9 Elements of the Typical Lone Pine Order (cont.) Causation can be the most onerous burden in a toxic tort case. Lone Pine orders often require plaintiffs to submit affidavits from medical or other experts on the issue of causation. Some courts require e these experts testimony to meet Daubert or Frye standards of admissibility. Other courts require only a minimal showing of some kind of scientific basis for their claims. See In re Vioxx Prods. Liab. Litig., 557 F. Supp. 2d 741, 744 (E.D. La. 2008) (plaintiff need only make minimal showing consistent with Rule 26). Fed. R. Civ. P. 26 reports Other affidavits or reports 7

10 Authority for Lone Pine Od Orders: Statutes and Rules of Procedure 8 Trial courts cite procedural rules and statutes giving them broad discretion to manage caseloads and discovery as authority for entering Lone Pine orders. Fed. R. Civ. P. 16(c) ()(court may adopt special procedures to eliminate frivolous claims and manage complex cases) Fed. R. Civ. P. 26 (authority to manage and limit discovery) Fed. R. Civ. P. 11 (attorneys must have evidentiary support for allegations) Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000)

11 Authority for Lone Pine Od Orders: State Statutes and Rules Many states have procedural rules or statutes t t analogous to the Federal Rules, including 11, 16, and 26. State t rules statutes t t provide trial courts broad authority to manage complex cases: California: Cal. Standards Jud. Admin. 19(h) New York: N.Y. C.P.L.R. 602,

12 Authority for Lone Pine Od Orders: Courts Inherent Authority Both federal and state court decisions have cited trial courts inherent power to manage their dockets as authority for issuing Lone Pine orders. 10

13 Factors That Prompt Use of Lone Pine Orders In crafting a Lone Pine order, a court should strive to strike a balance between efficiency and equity. Lone Pine orders may not be appropriate p in every case, and even when appropriate, they may not be suitable at every stage of the litigation. In re Vioxx Prods. Liab. Litig.,, 557 F. Supp. 2d 741, 744 (E.D. La. 2008). Courts consider a number of factors in determining whether to issue Lone Pine orders. 11

14 Factors That Prompt Use of Lone Pine Orders 12 Courts consider: The number of parties involved Number of claims / causes of action involved The stage of the litigation See In re Vioxx, 557 F. Supp. 2d at 744. Insufficient pleading See, e.g., Atwood v. Warner Elec. Brake & Clutch Co., 605 N.E.2d 1032, 1037 (Ill. Ct. App. 1992) Circumstances indicating plaintiffs claims lack merit Availability of other procedures See, e.g., In re Digitek Prod. Liab. Litig., MDL No. 1968, 2010 WL (S.D. W.Va. Jan. 8, 2010). Particular needs of the case

15 Use of Lone Pine Orders California, Illinois, Montana, New Jersey, New York, Texas, and Wisconsin have approved Lone Pine orders in reported decisions. i In Texas, appellate courts have granted writs of mandamus when trial courts refused defendants requests for Lone Pine orders. See In re Mohawk Rubber Co., 982 S.W.2d 494, 499 (Tex. Ct. App. 1998); In re Zenith Elecs. Corp of Texas, No CV WL (Tex. Ct. App. Oct. 21, 2004). Countless courts in other jurisdictions have undoubtedly issued Lone Pine orders in unreported cases. The orders have frequently been used by federal district courts. Many cite to Acuna v. Brown & Root, Inc., 200 F.3d 335 (5th Cir. 2000), wherein the Fifth Circuit endorsed the use of Lone Pine orders. 13

16 Examples In re Vioxx Prods. Liab. Litig., 557 F. Supp. 2d 741 (E.D. La. 2008) In re Digitek Prod. Liab. Litig., MDL No. 1968, 2010 WL (S.D. W.Va. Jan. 8, 2010) Ramirez v. E.I. du Pont de Nemours & Co., No. 8:09-CV- 321-R-33TBM, 2010 WL (M.D. Fla. Jan. 8, 2010) 14

17 Cases Suited for Lone Pine Orders Lone Pine orders may be useful for any litigation that: involve multiple plaintiffs involves multiple theories of recovery; involves novel theories of injury or causation; or requires expert scientific/medical testimony. These orders are often appropriate for: Mass Torts Environmental and Toxic Torts Chemical Exposure Cases Complex Products Liability Cases 15

18 Jay M. Jalenak, Jr. KeanMiller One American Place 301 Main Street, Suite 1800 Baton Rouge, LA Tel.: Cell: Direct Fax: web site:

19 Defense perspective p Lone Pine orders require plaintiffs early in the litigation to: (1) Specifically define their alleged injuries and/or damages; and (2) Demonstrate at the early stages a prima facia level of evidentiary support for key components of their claims, usually causation of damages. 2

20 Defense perspective p Lone Pine orders are designed to assist in the management of complex issues and potential burdens on defendants and the court in mass tort litigation, essentially requiring plaintiffs to produce a measure of evidence to support their claims at the outset. Steering Committee v. Exxon Mobil Corp., 461 F.3d 598, 604 n. 2 (5th Cir.2006); Acuna v. Brown & Root Inc., 200 F.3d 335, 340 (5th Cir.2000) 3

21 Defense perspective p Traditional Rationale: Lone Pine orders ensure that unsupported claims will not consume the resources of the parties or the judiciary. More Broadly Speaking: Lone Pine orders are an effective case management tool to assist the courts in defining issues, narrowing the scope of discovery, and otherwise getting control of complex litigation at the earliest possible stage of the litigation. 4

22 Whatever perceived burdens Lone Pine orders place on the plaintiffs must be weighed against the burdens protracted litigation will impose on the court system and the defendant. Lone Pine orders do not, as plaintiffs often argue, unfairly require the plaintiffs to prove their case before proceeding with the lawsuit. They merely require plaintiffs to define their claims clearly and to demonstrate that there is some competent evidentiary support to justify proceeding with time consuming, burdensome, and complex litigation. 5

23 Lone Pine orders enforce the plaintiff s burden in civil litigation. Plaintiff's burden of proof: 1. Fault 2. Causation 3. Damages 6

24 Lone Pine orders simply require production of that which plaintiffs ought to have obtained before filing suit points to a problem that is all too common in complex litigation a vague petition followed by onerous discovery requests and time consuming litigation as the plaintiffs attempt to use discovery to do that which should have been done before suit was filed. The reasonable inquiry requirement of Rule 11 is not simply window dressing it is a real obligation, and the Lone Pine order can be used to enforce it. The [order] essentially required that information which plaintiffs should have had before filing their claims pursuant to Fed. R.Civ.P. 11(b)(3). -Acuna et al. v. Brown & Root, et al., 200 F.3d 335 (5th Cir., 2000). 7

25 In re Vioxx Products Liability Litigation, 557 F.Supp.2d 741,744 (E.D. La. 2008), the Court stated that it was not requiring that Plaintiffs provide expert reports sufficient to survive a Daubert challenge or even provide and expert who will testify tif at trial. Rather the Court is requiring i 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. The court ultimately dismissed the claims for failure to comply with the Lone Pine order. In re Vioxx Products Liability Litigation, 2009 WL (E.D. La., April 28, 2009). 8

26 Lone Pine orders are perfectly consistent with the principles espoused in the Federal Judicial Center s Manual for Complex Litigation. The Manual recognizes and encourages courts to use... the numerous grants of authority that supplement the court s inherent power to manage litigation. (Manual for Complex Litigation, Fourth, 10.1.) One of these specific grants of authority is Federal Rule Civ. Proc. 16(c)(12), which encourages courts to adopt special procedures to manage appropriate cases. It provides: (c) Subjects for Consideration at Pretrial Conferences. At any conference under this rule consideration may be given, and the court may take appropriate action, with respect to * * * (12) the need for adopting special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems... 9

27 Lone Pine orders are perfectly consistent with the principles espoused in the Federal Judicial Center s Manual for Complex Litigation. The Manual recognizes that effective judicial management is active and substantive. (Id., at ) The management should be active in the sense that the judge will anticipate crucial issues before they arise... rather than await passively for counsel to present them. (Id.) It should be substantive by allowing the court to become familiar with the key substantive issues at an early stage so that the court can make informed rulings on issue definition and narrowing. (Id.) To accomplish this, the court should seek specific information and require the attorneys, at the earliest possible stage, to... describe the material facts they intend to prove and how they intend to prove them. (Id., at ) 10

28 Lone Pine orders are perfectly consistent with the principles espoused in the Federal Judicial Center s Manual for Complex Litigation. The Manual recognizes that the best time to adopt special procedures to manage potentially difficult or protracted litigation is during the very early stages. Judicial supervision is most needed and productive early in the litigation. (Id., at 10.1.) One of the key components of effective litigation management is a plan that requires the early identification of the key material facts and legal issues that will dictate the direction of the litigation. As recognized by the Manual, [t]he sine qua non of managing complex litigation is defining the issues in the litigation. The materiality of facts and the scope of discovery (and the trial) cannot be determined without identification and definition of the controverted issues... (Id., at ) 11

29 Lone Pine orders can facilitate resolution. An effective response to a Lone Pine order communicates to the defendant and to the court that the plaintiffs have done their homework and are prepared to present an effective case. This can foster early and meaningful alternative resolution methods that might not otherwise be undertaken until long after the parties have spent considerable time and money. 12

30 Abbatiello v. Monsanto Co., 569 F. Supp. 351 (S.D. NY, 2008) Multiple defendants were sued for damages caused by their manufacturer of PCB s. A modified Lone Pine order was put in place, which required defendants to submit to limited written discovery before plaintiffs would be required to submit expert affidavits establishing a prima facie case of causation of damages. Plaintiffs, after seeking several extensions for their affidavits, moved to modify the CMO to initiate discovery as to only one of several affirmative defenses of defendants. The Court rejected the proposed modification. Until plaintiffs established the prima facie case of causation, there was no reason to initiate this costly discovery and no reason to limit discovery to one issue which would not be dispositive. 13

31 McManaway v. KBR, Inc., F.R.D., 2009 WL (S.D. Ind, Nov. 20, 2009) National guardsmen and private citizens alleged to have been exposed to sodium dichromate while working to restore a water plant in Iraq. Defendants sought a Lone Pine order to require expert proof of injuries and general and specific causation. The Court was skeptical of such orders and their use in place of the procedural safeguards of summary judgment. Nevertheless, the Court was swayed by a report submitted by a U.S. Army Center for Health Promotion and Preventive Medicine report which evaluated 137 of the 161 potentially exposed guardsmen and found no significant levels of toxin in their blood. 14

32 McManaway v. KBR, Inc., F.R.D., 2009 WL (S.D. Ind, Nov. 20, 2009) The court issued a Lone Pine order requiring expert disclosures on 1) evidence/medical findings of each plaintiff on detectable amounts of sodium dichromate being found in blood or tissue; or in the absence, shall address how a judge or jury can conclude that any medical conditions sustained by a plaintiff can be said to have been caused by the exposure. The court did not order that the failure to provide such evidence would result in immediate dismissal. i Instead, the court ordered d that t such a failure, combined with a successful motion for summary judgment, would be considered as to whether plaintiffs should bear the costs and fees incurred by defendants in seeking a summary judgment. 15

33 Burns v. Universal Crop Protection Alliance, 2007 WL (E.D. Ark., Sept. 25, 2007) 82 cotton farmers filed suit against 5 herbicide manufacturers under theories of strict liability, negligence, breach of implied warranty, and violation of the Arkansas Deceptive Trade Practices Act, for alleged cotton crop suffered damage from exposure to Defendants' herbicides. Defendants sought a Lone Pine order requiring i each plaintiff to identify the amount of each defendants product claimed to be transported to their crops, the individual harm claimed, and the facts relied upon by experts. The proposed modified order permitted a period of discovery of plaintiff s affiants as well an opportunity for motions challenging the sufficiency of plaintiff s proof of product identification and exposure. 16

34 Burns v. Universal Crop Protection Alliance, 2007 WL (E.D. Ark., Sept. 25, 2007) The Court agreed and issued the order: Arkansas law requires a plaintiff asserting any theory of product liability to show a causal link between the alleged product defect and alleged injuries. Additionally, where several defendants' products may have produced injury, a plaintiff must introduce sufficient evidence that exposure to a particular defendant's product was a substantial factor in producing the injury. Arkansas, like many other jurisdictions, has not adopted a market share approach to causation. 17

35 Alternative to Lone Pine orders. Limited discovery before entry of the Lone Pine order. Initial discovery limited to causation, followed by an option for summary judgment. 18

36 Jay Jalenak is a partner in the Baton Rouge office of Kean Miller. He joined the firm in 1990 and practices in the litigation group. Jay represents clients in toxic tort litigation, commercial and business litigation and personal injury defense. Jay has particular experience in the defense of area industrial facilities, class action, warranty, asbestos, welding rod, toxic tort, premises, products liability and hearing loss claims, and regularly represents major businesses. Jay is a Past President of the Baton Rouge Bar Association. 19

37 Lone Pine Orders in Class Action, Mass Tort and Products Liability Litigation Thursday, February 18, 2010 JR J.R. Whaley

38 Lone Pine Orders: The Plaintiffs Perspective 2 J.R. Whaley jrwhaley@nbalawfirm.com

39 Plaintiff s Perspective A Lone Pine order is a tool for the defense. Expect to see them in mass tort cases, environmental class actions. Expect to see them in cases with unique liability and causation claims. li How should plaintiff counsel deal with a request for a Lone Pine order? 3 J.R. Whaley jrwhaley@nbalawfirm.com

40 How To Defeat Lone Pine Request Show how your defendant doesn t want to follow the rules. Show history of Lone Pine orders. Show how Lone Pine orders have been used in only limited situations. Distinguish those situations from yours. Don t expose yourself to a Lone Pine request in the first place. 4 J.R. Whaley jrwhaley@nbalawfirm.com

41 Federal Rules No guidance in the Federal Rules for a Lone Pine order. What the Federal Rules do establish are mechanisms for gathering and testing evidence at appropriate stages through motions to dismiss, discovery, motions for summary judgment or Daubert. How about we just follow the rules? 5 J.R. Whaley jrwhaley@nbalawfirm.com

42 Established Procedures Provide All The Protection Defendants Require To Defend Against Alleged Frivolous Claims. Rule 11 Rule 12(b)(6) Rule 26(c) Protective Order Od Rule 56 Motion for Summary Judgment 6 J.R. Whaley jrwhaley@nbalawfirm.com

43 Established Procedures Provide All The Protection Defendants Require To Defend Against Alleged Frivolous Claims. Rule 12(b)(6): A complaint that merely states a legal theory and vaguely states the elements of a claim does not sufficiently state a plausible claim for relief. (Twombly) [T]he tenet tthat t a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. (Iqbal) To survive a motion to dismiss, the complaint must present a story plausible enough to convince a judge that the plaintiff actually stands a reasonable chance of proving the claims asserted in the complaint. (Iqbal) Rule 8 does not unlock the doors to discovery for a plaintiff armed with nothing more than conclusions. (Iqbal) 7 J.R. Whaley jrwhaley@nbalawfirm.com

44 Established Procedures Provide All The Protection Defendants Require To Defend Against Alleged Frivolous Claims. Rule ue56: Summary judgment is useful device for unmasking frivolous claims and putting swift end to meritless litigation. Quinn v. Syracuse Model lnihb Neighborhood h Corp., 613 F.2d 438 (2 nd Cir. 1980). The purpose p of a motion for summary judgment is not to preserve legal arguments for appeal, but to eliminate useless trials on undisputed issues. Flynn v. Sandahl, 58 F.3d F3d283 (7 th Cir. 1995). 8 J.R. Whaley jrwhaley@nbalawfirm.com

45 Established Procedures Provide All The Protection Defendants Require To Defend Against Alleged Frivolous Claims Rule 56: In particular, the [s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive determination of every action. " "Cl Celotex v. Catrett, 477 U.S. US 317, 328, quoting Fed. Rule Civ. Proc J.R. Whaley jrwhaley@nbalawfirm.com

46 How Lone Pine Orders Started Lore v. Lone Pine Corp. is a New Jersey state district court case. It involved numerous plaintiffs who were suing 464 defendants for personal injury and property damage associated with a landfill. It was unclear from the pleadings which defendants the plaintiffs were claiming were responsible for which injuries. Additionally, some of the plaintiffs were claiming damage to their properties despite being up to 20 miles away even thoughthe the Environmental ProtectionAgency had issued reports finding that any contamination from the landfill was confined to the landfill itself and its immediate vicinity. The court found dit necessary to issue the special ilcase management order. See Lore v. Lone Pine Corp N.J. Super. LEXIS 1626, *1 2. (N.J. Super. Ct. 1986). 10 J.R. Whaley jrwhaley@nbalawfirm.com

47 Lone Pine Orders In Other Contexts 11 J.R. Whaley

48 Lone Pine Orders In Other Contexts Morgan v. Ford Motor Co., 2007 U.S. US Dist. LEXIS (D. N.J., May 17, 2007). In Morgan, theplaintiffs alleged personal injury and property damage resulting from defendants dumping of hazardous materials at a landfill. 12 J.R. Whaley jrwhaley@nbalawfirm.com

49 Lone Pine Orders In Other Contexts The defendants sought an order requiring each plaintiff to specify his or her alleged injuries and produce basic facts substantiating the causes of such injuries through various affidavits before any other discovery had occurred. 13 J.R. Whaley

50 Lone Pine Orders In Other Contexts In ruling against the issuing of a Lone Pine order in Morgan, the Court held that the parties must be given an opportunity to conduct discovery and contest the reasonableness of their adversary ss experts. 14 J.R. Whaley jrwhaley@nbalawfirm.com

51 Lone Pine Orders In Other Contexts Defendants are not entitled to file what amounts to a summary judgment motion without first allowing the party opposing the motion a chance to conduct discovery. Morgan, at *37 citing Hines v. Consol. Rail Corp., 926 F.2d 262 (3d Cir. 1991). 15 J.R. Whaley jrwhaley@nbalawfirm.com

52 Lone Pine Orders In Other Contexts The use of a Lone Pine order is the exception and not the rule. See In re Vioxx Prods. Liab. Litig., 557 F. Supp. 2d 741, 744 (E.D. La. May 30, 2008). 16 J.R. Whaley jrwhaley@nbalawfirm.com

53 Lone Pine Orders In Other Contexts When deciding whether to issue a Lone Pine order, it is important that the court strike a balance between efficiency and equity equity. In re Vioxx Prods. Liab. Litig., at 744. Lone Pine orders may not be appropriate in every case and, even when appropriate, they may not be suitable at every stage of the litigation. Id. 17 J.R. Whaley jrwhaley@nbalawfirm.com

54 Lone Pine Orders In Other Contexts In Vioxx, the court found that a Lone Pine order was proper but it also noted the unusual circumstances warranting thecourt s decision. The case had already been in the state courts for over seven years and the MDL for over three. 18 J.R. Whaley jrwhaley@nbalawfirm.com

55 Lone Pine Orders In Other Contexts An enormous ousamount tof discovery dsco eyhad taken place. The defendants had produced over 22 million pages of documents and hundreds of depositions had been conducted. Six bellwether trials and 14 others had taken place, and thousands of pre trial motions had been decided. The case was no longer in its embryonic stage. 19 J.R. Whaley

56 Lone Pine Orders In Other Contexts [A]t ]tthis sadvanced a stage of the litigation, tgato it is not too much to ask a Plaintiff to provide some kind of evidence to support their claim... [I]n the present case, a Lone Pine order may not have been appropriate at an earlier stage before any discovery hdtk had taken place since little was known about the structure, nature and effect of Vioxx by anyone other than perhaps the manufacturer of the drug. 20 J.R. Whaley jrwhaley@nbalawfirm.com

57 Lone Pine Orders In Other Contexts Lone Pine orders are generally used in mass tort or class action litigations, not those involving twoparties and one injury. Lone Pine orders are designed to handle the complex issues and potential burdens on defendants and courts in mass tort litigation. Acuna v. Brown and RootInc., 200 F.3d 335, 340 (5 th Cir. 2000). 21 J.R. Whaley

58 Lone Pine Orders In Other Contexts Acuna was a mass, toxic tort case. Approximately 1,600 plaintiffs were suing over 100 defendants for a range of injuries, as well as durations, intensities and types of exposure to toxic substances occurring over a span of up to forty years. Neither the defendants nor the court were on notice from the plaintiffs pleadings as to which diseases were being claimed as injuries or which facilities were alleged to have caused those injuries. As a result, the court issued a Lone Pine order requiring the plaintiffs to produce expert affidavits with basic evidence such as the injuries suffered by the plaintiff, the material or substances causing the injury, the facility thought to be its source and the dates or circumstances and means of exposure. 22 J.R. Whaley jrwhaley@nbalawfirm.com

59 What Is The Big Picture? 23 J.R. Whaley

60 Is It Right For Your Case? The issue is not whether a court can require [the plaintiffs] to make a prima facie showing; the issue is whether a court should. McConnell, at *4 (emphasis in the original). While Federal courts may be vested with authority to use additional tools, in extraordinary circumstances, to assist it in handling inordinately complex issues that impose special burdens on the parties, the question is whether the facts even remotely present such circumstances. 24 J.R. Whaley jrwhaley@nbalawfirm.com

61 The basic purpose of a Lone Pine order is to identify and cull potentially ti meritless claims li and streamline litigation in complex cases involving numerous claimants [and defendants] Baker v. Chevron USA, Inc., 2007 WL , *1 (S.D. Ohio Jan. 30, 2007) and In re Vioxx Prods. Liab. Litig.,, 557 F. Supp. 2d at 744. In order to justify such a departure from the ordinary course of procedure, the defendant must establish that the case presents special circumstances such as multiple defendants or plaintiffs litiff presenting potentially ti burdensome discovery issues; multiple injuries and possible causes; well grounded suspicion of meritless claims; or unusual proof problems. 25 J.R. Whaley jrwhaley@nbalawfirm.com

62 In the relatively few cases where Lone Pine orders have been used, these special circumstances were always present. See Claar v. Burlington Northern R.R. Co., 29 F.3d 499, 500 (9 th Cir. 1994) where the court noted that a Lone Pine order was issued out of concern that plaintiffs might not be able to demonstrate a causal connection between their workplace chemical exposure and their injuries. In re: Silica Prods. Liab. Litig., 398 F.Supp. 2d 563 (S.D. Tex. June 30, 2005) where the court used a Lone Pine order to sift through and dismiss unscreened claims where 10,000 plaintiffs filed over 100 state and federal suits. McConnell v. Pacificorp Inc., 2008 U.S. Dist. LEXIS 53949, *11 (N.D. Ca., June 12, 2008) where the court refused to issue a Lone Pine order after surveying prior case law where Lone Pine orders had been issued in the past and noting that none of those unusual proof problems were present in the current matter. 26 J.R. Whaley jrwhaley@nbalawfirm.com

63 Before Suit Is Filed, Consider Whether You Are Exposed To A Lone Pine Request Multiple defendants? Multiple plaintiffs? Unclear pleadings? Unique damages claimed? Unique causation claimed? 27 J.R. Whaley jrwhaley@nbalawfirm.com

64 What Can You Do Before Suit Is Filed To Prepare For A Lone Pine Od Order? Bad facts (and bad pleadings) make bad law. law Be prepared. Experts Is less more? Alternate Discovery Methods. Plaintiff Fact Sheets Bellwether Trial 28 J.R. Whaley jrwhaley@nbalawfirm.com

65 Questions? 29 J.R. Whaley