In some environmental cases, our clients are faced with motions for Lone Pine orders.
Lone Pine orders are special case management tools sought by defendants in class action lawsuits. Lone Pine orders typically require plaintiffs to supply evidence of injury, exposure, and causation prior to discovery. Discovery is the process by which a party to a lawsuit and his/her/its attorneys obtain information/documents from the opposing party or third parties about their claims before a trial. The theory behind the expansive view of discovery rights is that all parties should arrive to trial with as much knowledge as possible and neither party should be surprised by secrets.
The Rise of Lone Pine
Lone Pine orders preempt the standard discovery process in theory to identify and cull potentially meritless claims and streamline the lawsuit. Lone Pine orders derive from an unpublished 1986 decision of the New Jersey Superior Court in Lore v. Lone Pine Corp. wherein plaintiffs who owned property near a landfill brought a lawsuit against the landfill operator (the Lone Pine Corporation) and 463 waste generators, alleging personal injuries and diminished property values resulting from operation of the landfill. After the filing of the suit, the U.S. EPA released a report calling into doubt Plaintiffs’ claims in the Lone Pine case. This report caused the court to enter a case management order requiring plaintiffs to provide documentation containing what the court deemed “basic facts” in support of their claims before the defendants had to do anything of substance.
How do Lone Pine Orders Affect Claims?
When multiple people sue for injuries caused by exposure to a company’s contamination, defendants may seek to kneecap the lawsuit early with a Lone Pine order. Defendants will demand that for personal injury claims, each plaintiff must provide facts to support exposure to defendants’ contamination sufficient to cause the alleged injury including reports from treating physicians or other experts. Defendants will also demand an expert report from a real estate appraiser and environmental engineer identifying the timing of contamination, degree of diminution in value, and causation for claims of diminution in value of property. These expert reports are costly and typically exchanged much further along in the lawsuit after Plaintiffs have had an opportunity to review defendants’ records.
Lone Pine Orders are not and should not be Common
The Lone Pine case was unique in that it involved a few plaintiffs bringing a lawsuit against 464 defendants, including 11 municipalities, collectively represented by more than 120 attorneys. The state court judge took an unprecedented measure (making the plaintiffs provide evidence of their claims at the beginning of the lawsuit before the discovery process) due to the complexity of the claims and the number of attorneys. Since 1986, defendants across the country have pushed to expand the application of Lone Pine orders to any multi-plaintiff cases involving toxic exposure.
However, the entry of a Lone Pine order is still an “extraordinary procedure” and should be treated as a last resort option by courts. While a Lone Pine order would streamline any lawsuit involving multiple plaintiffs, shifting the burden to Plaintiffs to prove their lawsuit before discovery must be reserved only for when the defendants can show that the standard methods of discovery would be too burdensome for them.
It is Important to Fight Against the Expansion of Lone Pine Orders
A Lone Pine order should be rare since it “gives courts the means to ignore existing procedural rules and safeguards.” It is important for attorneys in multi-party exposure cases to fight defendants’ notion that Lone Pine orders are commonplace. They are uncommon and should remain extraordinary tools infrequently utilized for the most highly complex of cases.
