Lone Pine Orders in Class Action, Mass Tort and Products Liability - PowerPoint PPT Presentation

Lone Pine Orders in Class Action, Mass Tort and Products Liability Litigation Bringing and Defending Pre Trial Motions Regarding Bringing and Defending Pre-Trial Motions Regarding presents presents 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 p 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 emailed 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 800-926-7926 ext. 10

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

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

What Are Lone Pine Orders?  Lore v. Lone Pine Corp. , 1986 WL 637507, No. L-33606-85 (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  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 dismissed with prejudice. 3

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 those claims early in the litigation. 4

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 t l l liti ti t l stage.  Separating the “wheat” from the “chaff” 5

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

El Elements of the Typical Lone Pine t f th T i l L Pi 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 these experts’ testimony to meet So e cou ts equ e t ese e pe ts test o y to eet 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

A Authority for Lone Pine Orders: h i f L Pi O d Statutes and Rules of Procedure  Trial courts cite procedural rules and statutes giving them broad discretion to manage caseloads and 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 ( ) ( y p p procedures to eliminate frivolous claims and manage complex cases) – Fed. R. Civ. P. 26 (authority to manage and limit Fed R Civ P 26 (authority to manage and limit discovery) – Fed. R. Civ. P. 11 (attorneys must have ( y evidentiary support for allegations) Acuna v. Brown & Root, Inc. , 200 F.3d 335, 340 (5th Cir. 2000) 8

Authority for Lone Pine Orders: A th it f L Pi O d State Statutes and Rules  Many states have procedural rules or statutes analogous to the Federal Rules, t t t l t th F d l R l including 11, 16, and 26.  State rules statutes provide trial courts broad St t l t t t id t i l t b d authority to manage complex cases: – California: Cal. Standards Jud. Admin. § 19(h) California: Cal Standards Jud Admin § 19(h) – New York: N.Y. C.P.L.R. §§ 602, 3103. 9

Authority for Lone Pine Orders: A th it f L Pi O d 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 Pine orders. 10

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 in every y pp p y 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. g , pp , ( La. 2008).  Courts consider a number of factors in determining whether to issue Lone Pine orders whether to issue Lone Pine orders. 11

Factors That Prompt Use of Lone Pine F t Th t P t U f L Pi Orders  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 86170 (S.D. W.Va. Jan 8 2010) Jan. 8, 2010). – Particular needs of the case 12

Use of Lone Pine Orders  California, Illinois, Montana, New Jersey, New York, Texas, and Wisconsin have approved Lone Pine orders in reported d decisions. i 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 13 04 00420 CV 1998); In re Zenith Elecs. Corp of Texas , No. 13-04-00420-CV 2004 WL 2367236 (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

Examples  In re Vioxx Prods. Liab. Litig. , 557 F. Supp. 2d 741 (E.D. La 2008) La. 2008)  In re Digitek Prod. Liab. Litig. , MDL No. 1968, 2010 WL 86170 (S.D. W.Va. Jan. 8, 2010)  Ramirez v E I du Pont de Nemours & Co  Ramirez v. E.I. du Pont de Nemours & Co. , No. 8:09-CV- No 8:09-CV- 321-R-33TBM, 2010 WL 144866 (M.D. Fla. Jan. 8, 2010) 14

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

Jay M. Jalenak, Jr. KeanMiller One American Place 301 Main Street, Suite 1800 Baton Rouge, LA 70801 Tel.: 225.382.3438 Cell: 225 907 3263 Cell: 225.907.3263 Direct Fax: 225.215.4038 web site: www.keanmiller.com

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