Lone Pine Orders: Not Just for Multi-Plaintiff Litigation?
So-called “Lone Pine” orders derive from Lone Pine v. Lore, 1986 WL 637507 (N.J. Sup. Ct. Law Div. Nov. 18, 1986), and have often been used by state and federal courts to promote efficiency in discovery by requiring plaintiffs to provide some medical or scientific proof that their exposure to a product caused their injuries before requiring the parties to engage in the usual full-blown and expensive discovery process. In most instances, Lone Pine orders are employed in cases involving large numbers of plaintiffs as a case management tool to “weed out” those cases for which causation cannot be established.
But what if you have a single-plaintiff or one-off case that involves a novel claim, for which you anticipate that the plaintiff may ultimately be unable to establish that her or his exposure to the product at issue in the case was capable of causing her or his injuries? Can you use Lone Pine to ask the court to require the plaintiff to come forward with some initial proof to justify moving forward with further discovery in the case?
The initial answer, of course, is yes; you can always ask the court for relief. The more important question is, therefore, might you get what you ask for? The answer to that question is also yes.
While we cannot provide details or specifics (because we are still involved in litigating the case), we recently made such an application to the court in a case in which the plaintiff alleged development of a serious medical condition as a result of her claimed exposure to our client’s product. After some initial investigation and preliminary written discovery, we could find no medical literature linking the plaintiff’s claimed illness to the type of product at issue. We did, however, find medical literature linking the condition to other factors in her background, as shown in her medical records.
Based on this, we submitted an application to the court, noting that our initial investigation did not reveal any evidence to support a link between exposure to the product and the plaintiff’s condition. We also provided the court with some medical literature showing a link between other factors identified in the plaintiff’s medical records and the condition. We argued that before we embarked on expensive and time-consuming fact discovery, including the collection of all of the plaintiff’s medical, depositions of what would likely be multiple witnesses, and whatever fact discovery the plaintiff might want to seek, the court should direct plaintiff to come forward with a preliminary medical opinion that there was at least some credible basis on which to assert that exposure to our client’s product could cause the plaintiff’s medical condition. We suggested that, based on the plaintiff’s own medical records, it appeared that at least her physicians were linking her condition to something wholly unrelated to our client’s product.
The plaintiff’s counsel, as expected, opposed our request, and asserted that we were trying to force him to conduct expert discovery without any facts. The judge, however, disagreed, and viewed our request as a reasonable one that could potentially save the parties (and the court) significant time and expense if the plaintiff could not support a causative link between product exposure and medical condition.
So, while Lone Pine orders are not for every case, if you are defending what appears to be a novel, medically unsupported claim, consider whether it might be a useful tool for your case even if it falls outside the traditional mass-claim paradigm of a Lone Pine request.