Featured Expert Column − Complex Serial and Mass Tort Litigation
by Richard O. Faulk, Hollingsworth LLP*
To listen to the plaintiffs’ bar, you’d think that “Lone Pine” orders were a novelty recently conjured out of “thin air” by creative defense lawyers—or a device unsupported by any significant precedents. But although those orders may seem new to the uninitiated, they have deep roots in the history of active case management.
Many lawyers know—or have learned the hard way—why these case management tools are called “Lone Pine” orders, and what they are intended to accomplish. In Lore v. Lone Pine Corporation, No. L-03306-85, 1986 WL 637507 (N.J. Sup.Ct. Nov. 18, 1986), the plaintiffs claimed injuries resulting from contamination allegedly coming from a landfill. When the defendants presented a government investigation that found no offsite contamination, the court required the plaintiffs to make a preliminary showing of exposure, injury, and causation before allowing full discovery to proceed. This ruling led to other cases which recognized the propriety of “Lone Pine” orders when doubt existed “over what medical condition or disease, if any, can be causally related to the toxic agent exposure alleged by each plaintiff.”2 Lawrence G. Cetrulo, Toxic Torts Litigation Guide § 13:49 (2013). Since then, “Lone Pine” order have proliferated, not only in toxic tort litigation, but also in other types of cases.See generally, David B. Weinstein and Christopher Torres, Managing the Complex: A Brief Survey of Lone Pine Orders, 34 Westlaw Envt’l J. 1 (Aug. 21, 2013) (providing extensive list of categorized cases).
Lawyers who oppose these orders seek to “roll back the clock” to a time when the pace and progress of litigation was largely deferred to counsel, rather than courts—when judicial intervention was eschewed, instead of actively utilized to promote fair, prompt and cost-effective resolutions. Fortunately, in most courts throughout the nation, “the way we were” is no longer the “the way we are.” Instead of passively entrusting parties with broad power to manage their own disputes, new rules and principles have expanded and enlarged the scope of trial court discretion. As a result, judges are empowered and encouraged to manage cases creatively in the interests of justice. By these rules, the delay and costs formerly associated with the administration of justice are reduced, access to justice is enhanced, and the resources of the parties and the public are conserved.
“Lone Pine” orders are rooted deeply in the history of “active case management,” a concept that revolutionized the manner in which disputes were administered in state and federal courts over the past decades. By the 1970s, serious concerns regarding costs and delays focused attention on how cases actually progressed from filing to disposition—and how the overall process might be improved to hasten fair administration of justice. Critical studies of federal and state courts ultimately agreed that the most effective way to improve the judicial process was for judges to control the progress of litigation. See, e.g., Maureen Solomon, Caseflow Management in the Trial Court (American Bar Association, 1973), at 29-30; Steven Flanders, Case Management and Court Management in United States District Courts (Federal Judicial Center, 1977); Thomas Church et al., Justice Delayed: The Pace of Litigation in Urban Trial Courts 54 (National Center for State Courts, 1978). Based on these studies, Federal Rules 16 and 23 were ultimately amended to facilitate, promote, and require greater judicial involvement—not only to reduce costs and delay, but to ensure that the expectations of the parties in efficient case administration were addressed.
The triumph of managerial judging was marked by its recognition by the Manual for Complex Litigation which, by the 1985 edition, provided:
[T]he propriety, if not the necessity of judicial control to promote the efficient conduct of the litigation . . . stems from an awareness that the tensions between an attorney’s responsibilities as an advocate and as an officer of the court frequently are aggravated in complex litigation and that the tactics of counsel may waste time and expense if the judge passively waits until problems have arisen.
See Manual for Complex Litigation, Second, Sec. 20.1 (1985). By 1989, the process was fully underway in the nation’s courts, and the Supreme Court of the United States announced that “[o]ne of the most significant insights that skilled trial judges have gained in recent years is the wisdom and necessity for early judicial intervention in the management of litigation.” Hoffmann-La Roche v. Sperling, 493 U.S. 165, 172 (1989) (Per Kennedy, J.).
The evolution of most states’ programs, and the rules amendments that authorized and empowered them, closely resemble the experience of the federal judiciary, a system whose appellate courts have approved “Lone Pine” motions in every instance where they have been challenged. The Federal Rules and most state rules share a common purpose, namely, the “just, speedy and inexpensive” resolution of disputes. Compare, e.g., Fed. R. Civ. P. 1 with C.R.C.P. 1(a). The Rules are also similar because many state courts accomplish this purpose through provisions similar to Federal Rules 16 and 26. See e.g., Richard P. Holme, Colorado’s New Rules of Civil Procedure, Part I: Case Management and Disclosure, The Colorado Lawyer, Vol. 23, No. 11 (Nov. 1994); Richard P. Holme, Colorado’s New Rules of Civil Procedure, Part II: Rediscovering Discovery, The Colorado Lawyer, Vol. 23, No. 11 (Dec. 1994). Both state and federal rules also “reflect an evolving effort to require active judicial management of pretrial matters to curb discovery abuses, reduce delay, and decrease litigation costs.” See, e.g., DCP Midstream, LP v. Anadarko Petroleum Corp., 303 P.2d 1187, 1190 (Colo. 2013). With these commonalities, it is not surprising that federal appellate decisions have consistently accepted “Lone Pine” orders as appropriate case management tools.
In the most recent example, the U.S. Court of Appeals for the District of Columbia Circuit affirmed the dismissal of claims filed by a group of Ecuadorian provinces and individual farmers. Arias v. DynCorp, ___ F.3d ___, 2014 WL 2219109 (D.C. Cir. May 30, 2014). In Arias, the plaintiffs filed a putative class action on behalf of all Ecuadorians who lived within ten miles of the Colombian border. They alleged that they were injured by an anti-drug herbicide spraying operation in Colombia that was conducted by an American company.
Ultimately, the class action allegations were dropped and, to move the case forward, the district court ordered the remaining individual plaintiffs to submit answers to questionnaires regarding their injuries, which, according to the D.C. Circuit, is a “common trial management technique in toxic tort cases with multiple plaintiffs.” 2014 WL 2219109 at *4. The court explained that “[s]uch an order is sometimes called a Lone Pine order . . . It generally requires plaintiffs in a toxic tort case to produce affidavits setting forth some basic information regarding their alleged exposure and injury.” Id. According to the court, “such orders are issued under the wide discretion afforded district judges over the management of discovery under Fed. R. Civ. P. 16.” Id.
Even after the response deadlines were extended in Arias, many plaintiffs still submitted incomplete responses. After the judge warned that failure to fully complete the forms would lead to dismissal with prejudice, he extended the deadline yet again. After plaintiffs’ repeated failures to adequately complete the responses—and three deadline extensions—the district court “ultimately exercised its Rule 37(b) prerogative to sanction the plaintiffs by dismissing the case.” Id. at *5.
On appeal, the dismissed plaintiffs argued that dismissal was “too harsh of a sanction” and that the trial court should have considered “less dire alternatives.” Id. But the court of appeals disagreed:
The court gave the plaintiffs every opportunity to complete their responses. Indeed, the court appears to have been, if anything, too patient, applying no sanctions at all for the plaintiffs’ earlier failures. Only when further extensions were obviously futile did the court dismiss these cases.
2014 WL 2219109 at *6. Based on this record of non-compliance, the appellate court ruled that it was “impossible to conclude that the judge abused his discretion” by dismissing the claims with prejudice. Id. This ruling was consistent with other federal appellate decisions that previously addressed “Lone Pine” situations. See Avilla v. Willets Environmental Remediation Trust, 633 F.3d 828, 833-834 (9th Cir. 2011), cert. denied, 132 S. Ct. 120 (2011); Acuna v. Brown & Root Inc., 200 F.3d 335, 340 (5th Cir. 2000). Under the circumstances, these courts’ decision to dismiss plaintiffs’ claims was consistent with not only the Rules of Civil Procedure, but also the tradition of active case management upon which they were founded.
Viewed in this light, “Lone Pine” orders are hardly a novelty. They are a natural product of the principles of active case management. They rely upon the critical importance of early and carefully considered judicial intervention to achieve the most salutary goal of any judicial system—a just and prompt resolution at the lowest cost necessary to reach that end. They are not dispositive in themselves, but when issued, they offer an opportunity to identify, isolate, and develop particular issues which may lead to that end. “Lone Pine” orders are entirely consistent with the history of active case management, the procedural underpinnings of federal and state procedural law, and a host of decisions from jurisdictions that have embraced similar goals.
*Partner, Hollingsworth LLP, Washington, DC. Senior Director, Initiative for Energy and the Environment, Law & Economics Center, George Mason University School of Law, Arlington, Virginia. Mr. Faulk is counsel for a number of amici curiae in Antero Resources Corp., et al, v. Strudley, No. 2013SC576 (Supreme Court of Colorado), which involves the propriety of Lone Pine orders under Colorado law.