United States: Knee Implant MDL Judge Enters Aggressive Lone Pine Order

Last Updated: June 26 2016
Article by Rachel B. Weil

We love Lone Pine orders. First of all, we love the name. Makes us think of a cowboy eating beans under a scraggly tree. On the prairie. Listening to Dolly Parton. We also love Dolly Parton, whom we saw in concert last week here in Philadelphia. Too long a story for this blog, but suffice it to say that a 1977 Dolly Parton concert, just as we decided to take time off from college, convinced us that we wanted to move to Nashville, where we knew no one and had neither job nor place to live. Ask us about that adventure some time – we love to tell the story.

Somewhat less romantically, as most of you know, Lone Pine orders get their name from the landfill that was the subject of Lore v. Lone Pine Corporation, 1986 WL 637507 (N.J. Super. 1986). The case involved plaintiffs who alleged they had suffered personal injury and diminution of the value of their property because of polluted waters from the nearby Lone Pine Landfill. The court entered an order requiring plaintiffs to provide reports of medical experts supporting their personal injury claims and reports of real estate experts supporting their claims that their property values had diminished and that the diminution was caused by pollution from the landfill. When plaintiffs produced their experts' reports, the court found that the reports were inadequate to establish a prima facie case and dismissed all of the plaintiffs' claims with prejudice. Lone Pine includes one of our favorite quotes: "This Court is not willing to continue the instant action with the hope that the defendants eventually will capitulate and give a sum of money to satisfy plaintiffs and their attorneys without having been put to the test of proving their cause of action." Lone Pine, 1986 WL 637507 at *4.

To us, as lawyers who practice in the mass tort space, this principle and the Lone Pine orders it has spawned represent salvation from the huddled masses of meritless plaintiffs' claims lying in wait for eventual settlement checks. As such, we are always delighted when another judge enters a Lone Pine order requiring plaintiffs to demonstrate that their claims have merit or suffer dismissal. (Because they're a valuable defense tool, we keep a cheat sheet of successfully-obtained Lone Pine orders here.) Recently, the judge in the Zimmer Nexgen Knee Implant MDL entered such an order. You can see the order here . The order requires existing plaintiffs pursuing claims for particular types of injuries to provide expert declarations substantiating their claims by September 1, 2016. Plaintiffs who miss this deadline will be required to provide their declarations by October 21, 2016, accompanied by briefs showing cause for their failure to provide the declarations on time. Plaintiffs who still have not complied by November 4, 2016 will see their cases dismissed with prejudice. New plaintiffs must submit expert declarations within 180 days of filing suit.

It is an aggressive order. We applaud the Knee Implant MDL judge, and we'd like to see every mass tort judge follow her lead. We dare to imagine a world in which plaintiffs are forced to prove injury and causation before they collect money. But we are dreamers, no less now than in 1977.

This article is presented for informational purposes only and is not intended to constitute legal advice.

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