Lone Pine Orders

Meritless lawsuits are a common frustration in mass tort litigation. Whenever hundreds or thousands of cases are joined together, there are bound to be a few frivolous ones in the pile. However, this problem has been compounded by misleading lawyer advertising designed to both terrify and entice the public, as well as the advent of litigation-driven, junk science. Fortunately, defendants can try to winnow down these lawsuits through a Lone Pine order. This article discusses the history of Lone Pine orders, including recent cases in which they have been utilized.

“Of all the trees we could’ve hit, we had to get one that hits back.”

J.K. Rowling


Some courts, often in toxic tort cases with massive numbers of plaintiffs (and defendants), have utilized a procedure referred to as a Lone Pine order to require the plaintiffs to provide basic facts in the form of expert reports early in the case—or run the risk of dismissal.[1] This concept originated from a New Jersey case, Lore v. Lone Pine Corp.,[2] which involved property damage and personal injury claims arising out of exposure to polluted waters from the Lone Pine Landfill. Plaintiffs sued more than 400 defendants and, to streamline the case, the court entered a case management order requiring plaintiffs to prove certain facts early in the case, including proof of causation of injury. Plaintiffs were ordered to provide (1) facts establishing their exposure to alleged toxic substances from the site and (2) reports from treating physicians or other experts to support injury and causation.[3]

Lone Pine orders are designed to identify and cull potentially meritless claims and streamline litigation in the mass tort environment.[4] Courts have increasingly recognized that “Lone Pine orders may not be appropriate in every case and, even when appropriate, they may not be suitable at every stage of the litigation.”[5] The propriety of entering a Lone Pine order usually involves the following factors: (1) posture of the action, (2) the “peculiar case management needs presented,” (3) external agency decisions, (4) availability of other procedures provided by federal rules or statutes, and (5) the type of injury alleged by the plaintiffs and its cause.[6]

Application of these factors reveals some trends. For instance, courts have held that Lone Pine orders should not be implemented before the complaint has been found to be legally sufficient.[7] Courts have also determined that Lone Pine orders are not suitable at early stages of the case where no discovery has taken place.[8] In contrast, Lone Pine orders are best suited where the case involves a large number of plaintiffs and/or defendants.[9] Lone Pine orders are also appropriate if a governmental agency has determined that “causation is unlikely and the risk of injury is small.”[10]

Lone Pine case management orders are a means to improve efficiency, especially where there is a critical question about “missing links” in causation. Nevertheless, Lone Pine orders have been criticized because they give the court “the means to ignore existing procedural rules and safeguards.”[11] The main safeguard implicated with Lone Pine orders is the similarity of the order to summary judgment, “albeit without the safeguards that the Civil Rules of Procedure supply.”[12] Some courts have cautioned that Lone Pine orders “should not be used as (or become) the platforms for pseudo-summary judgment motions” and that they “might become the practical equivalent of a heightened, court-imposed quasi-pleading standard, something the Supreme Court has frowned on.”[13] But this view overlooks the unwieldy nature of mass torts and the ability of meritless claims to lurk in the shadows. And the likelihood of such meritless claims impacts the entire litigation, including the possibility of settlement.

Such pitfalls have even caused some plaintiff’s lawyers to recognize the need to fashion some process to establish claims early in the litigation:

In other situations, at the start of massive litigation, if a court views the claims with suspicion or if the defendant has brought concerns to the attention of the court, the court can rightly consider various devices to force plaintiffs to lay more of their cards on the table. This need not be a full-blown Lone Pine order requiring individual expert reports. As tailored to the situation at hand, it might require only that all medical records be turned over, showing proof of exposure and injury; that more comprehensive interrogatories be required; or that the defendant be allowed to undertake selective medical examinations of claimants.[14]

While defendants would usually prefer a Lone Pine order mandating fulsome disclosure of information along with expert reports, even something less than a “full-blown” Lone Pine order can be instrumental in moving the litigation forward as it would require plaintiffs to produce at least some core information that is necessary to evaluate whether they are proper plaintiffs and the viability of their claims.[15]


Courts continue to use Lone Pine orders as a means to weed out meritless cases and to ensure the orderly progression of mass tort dockets. A recent example of this is found in In Re: Zimmer Nexgen Knee Implant Products Liability Litigation.[16] Plaintiffs dismissed fifteen bellwether cases. Then when the court learned in early June that two more bellwether cases set for trial either would not proceed or would not address the plaintiff’s central theory of liability, the court ordered the parties to negotiate the terms of a Lone Pine order – over plaintiff’s “vehement” objection. The resulting Lone Pine order entered in late June noted the need for additional information from plaintiffs if the cases were to be fully resolved by the end of 2017, as the Court intended. In order to ensure that certain cases[17]“have sufficient merit to proceed to trial,” plaintiffs were ordered to provide an Expert Declaration supporting any of the three main defect theories that they intend to pursue at trial. Plaintiffs that fail to meet this requirement will either be prohibited from pursuing certain liability theories at trial or will have their cases dismissed.


Lone Pine orders can be tailored to fit the particular needs of any litigation. In today’s litigation climate, Lone Pine orders are an especially valuable tool in mass tort cases where causation is questionable or where plaintiffs engage in delay tactics. Judges should take a more positive view of these orders in order to control their mass tort dockets and to make settlement a more reasonable possibility.

[1] See, e.g., In re Vioxx Prods. Liab. Litig., 557 F. Supp. 2d 741, 743 (E.D. La. 2008).

[2] Lore v. Lone Pine Corp., 1986 WL 637507 (N.J. Super. Ct. Law Div. Nov. 18, 1986)

[3] See, e.g., In re Digitek Prod. Liab. Litig., 264 F.R.D. 249, 250 n.1 (S.D. W.Va. 2010) (explaining Lone Pine).

[4] In re Vioxx, 557 F. Supp. 2d at 743; Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000).

[5] In re Vioxx, 557 F. Supp. 2d at 744.

[6] In re Digitek, 264 F.R.D. at 256.

[7] Adinolfe v. United Techs. Corp., 768 F.3d 1161, 1168 (11th Cir. 2014).

[8] See In re Vioxx, 557 F. Supp. at 744; Avila v. Willits Environmental Remediation Trust, 633 F.3d 828, 834 (9th Cir. 2011); Adinolfe 768 F.3d at 1168.

[9] See Avila, 633 F.3d at 834; Acuna, 200 F.3d at 340 (approving use of a Lone Pine order in case involving 1600 plaintiffs and more than 100 defendants for injuries occurring over a span of nearly 40 years).

[10] See In re Digitek, 264 F.R.D. at 254.

[11] See In re Digitek, 264 F.R.D. at 257.

[12] Id.

[13] Adinolfe 768 F.3d at 1168.

[14] Paul Rheingold & Laura Pitter, Lone Pine Orders: An Abused Remedy?, Mass Torts, Vol. 8, No. 1, Fall 2009, at 1, 19.

[15] See, e.g., Arias v. DynCorp, 752 F.3d 1011, 1015-16 (D.D.C. 2014) (dismissal was appropriate when plaintiffs failed to comply with the Lone Pine order by filling out questionnaires regarding their claims and damages); Bilal v. Merck & Co. (In re Vioxx Prods. Liab. Litig.), 499 Fed. Appx. 362 (5th Cir. 2012) (dismissal was appropriate where defendant failed to comply with the Lone Pine order by providing information concerning his injuries and their relation to the product).

[16] In Re: Zimmer Nexgen Knee Implant Prods. Liab. Litig., No. 1:11-cv-05468 (N.D. Il., June 24, 2016).

[17] Cases were divided into “Track One” and “Track Two.” The Lone Pine ordered applied to “Track One” cases