Ninth Circuit Supports Lone Pine Orders Without Restrictions

A Lone Pine order is a case management device in which the judge requires the plaintiff to make a prima facie showing of injury, causation, and/or damages. Its purpose is to simplify or eliminate cases to lessen the burdens on the courts and defendants. In a Lone Star order, plaintiffs are required to show an initial level of evidence for the key aspects of the case, often including expert witness(es). Some suggest this is already required by the plaintiff’s duty to conduct a proper pre-suit investigation. However, the practical reality is that a Lone Pine order places an increased burden on plaintiffs and reduces the incidence of plaintiffs using the threat of further litigation costs to extract a settlement value.

Lone Pine rulings get their name from a 1986 New Jersey environmental mass-tort case (Lore v. Lone Pine Corp). In the original Lone Pine case, the Court required plaintiffs to submit evidence shortly after the case was filed regarding both plaintiffs’ exposure to toxic substances, and medical expert evidence showing that the toxins were the cause of their injuries. When the plaintiffs were unable to provide this documentation, the judge dismissed their case.

Although Lone Pine rulings started in toxic tort litigation, judges are using this approach in other types of complex cases in both federal and state courts. But the orders do not have a long appellate record. For this reason, the Ninth Circuit’s decision in re: Donna Avila v. Willits Environmental Remediation Trust, 09-16455 (January 27, 2011) is important.  This case is described and analyzed in this article.

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