PHILADELPHIA – Reed Smith LLP counsel Rachel B. Weil hopes that
Lone Pine orders like a recent one requiring plaintiffs in a knee implant
multi-district case to submit expert declarations backing up their injury
claims become a routine part of the tort litigation process.
Lone Pine orders take their name from a 1986 case, Lore v. Lone Pine Corporation. In that
case, a New Jersey court ordered plaintiffs who alleged that they were injured
and that their property values suffered as a result of pollution at the Lone
Pine landfill to file expert declarations that these factors were tied to the
pollution. The court ruled that the expert reports were inadequate and
dismissed the claims.
Weil said not enough similar orders have followed the 1986
Lone Pine ruling.
“We who defend manufacturers in mass tort cases believe that
every judge should require plaintiffs to satisfy the terms of a Lone Pine order
at a relatively early point in the litigation,” Weil told the Pennsylvania Record.
“We hope that more
and more judges are realizing the value of Lone Pine orders and that, one day,
they will be a routine step in mass tort litigation.”
Weil said one possible reason that Lone Pine orders are not
common is that many judges may not be aggressive enough to make plaintiffs
prove injury and other tort claims early in the case. In addition, she said
Lone Pine orders are not apt to be as common in jurisdictions that have a
reputation of being “plaintiff-friendly.”
Weil said some Lone Pine orders require plaintiffs to meet
higher proof thresholds to avoid dismissal of their claims, while others have
requirements that are not as stringent. She said the orders, in general, require
that plaintiffs demonstrate that they were exposed to the agent alleged to have
caused injury, such as a drug, a medical device or a contaminated area, and that
they have in fact been injured.
“The best orders go further than this, requiring some proof
that the substance in question caused the plaintiffs’ injuries,” Weil said. “This
proof may be in the form of an expert affidavit or expert report establishing
medical causation. It seems that increasing numbers of orders are requiring
proof of this causal connection.”
Weil said defense lawyers would like to see all mass tort
judges require compliance with Lone Pine orders as part of their routine
pretrial procedures, dismissing the cases of plaintiffs who refuse to comply in
a timely fashion or who cannot produce the required proof.
“It is axiomatic that a product liability/toxic tort
plaintiff should not be able to recover money from a defendant without proving
exposure, injury and causation,” Weil said. “Lone Pine orders do no more than
require plaintiffs to demonstrate that they can prove the elements of their
cases, and they do it before the parties and the court have expended the large
amounts of time and money always wasted on meritless claims filed in mass tort
In the recent order, the judge in a Zimmer Nexgen knee
implant lawsuit said existing plaintiffs must provide expert declarations backing
up their claims by Sept. 1.
Plaintiffs who miss that deadline must submit their
expert reports by Oct. 21 and explain to the court why the deadline was not
met. Plaintiffs who fail to file their reports by Nov. 4 will have their cases
dismissed. New plaintiffs joining the lawsuit will have 180 days after filing
to submit their reports.