Philadelphia attorney hopes claim justification orders become routine in mass tort cases

By Carrie Salls | Jul 12, 2016

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 cases.”

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.

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