plaintiff's complaint is insufficient where it is devoid of “names, dates, locations, times, or any facts that would put [defendant] on notice as to what conduct supports ... his claims”
How later courts described this case
- plaintiff's complaint is insufficient where it is devoid of “names, dates, locations, times, or any facts that would put [defendant] on notice as to what conduct supports ... his claims”
- discussing use of Lone Pine orders in mass tort litigation
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION
D&J INVESTMENTS OF CENLA, CIVIL DOCKET NO. 1:23-cv-00508
LLC, ET AL
VERSUS JUDGE DAVID C. JOSEPH
DRESSER, LLC, ET AL MAGISTRATE JUDGE JOSEPH H.L.
PEREZ-MONTES
MEMORANDUM RULING GRANTING
MOTION FOR ENTRY OF LONE PINE ORDER
Before the Court is the MOTION FOR ENTRY OF LONE PINE ORDER (the “Motion”)
[Doc. 27] filed by Defendants Dresser, LLC, Dresser RE, LLC, Baker Hughes
Company, Baker Hughes Holdings, LLC, and Baker Hughes Energy Services, LLC
(collectively, “Dresser”).1 In the Motion, Dresser seeks the entry of a Lone Pine order
to expeditiously identify those claims for personal injury damages lacking evidentiary
support. No opposition has been filed; however, Defendants filed a reply brief in every
case in which they filed a Motion. [here, Doc. 36].
This matter was stayed on May 18, 2023, pending ruling on Plaintiffs’ Motion
to Remand [Doc. 17], which was DENIED on January 24, 2024 [Doc. 46]. Considering
the foregoing,
1 Five substantively identical MOTIONS FOR ENTRY OF LONE PINE ORDER were granted
in the following cases: (i) Barnes v. Dresser, LLC, No. 1:21-cv-00024-DCJ-JPM; (ii) Barton v.
Dresser, LLC, No. 1:22-cv-00263-DCJ-JPM; (iii) Cook v. Dresser, LLC, No. 1:21-cv-00696-
DCJ-JPM; (iv) Barrett v. Dresser, LLC, No. 1:20-cv-01346-DCJ-JPM; and (v) Petty v. Dresser,
LLC, No. 1:21-cv-02586-DCJ-JPM (hereinafter referred to collectively as the “Related
Cases”).
IT IS HEREBY ORDERED that the stay in this matter is lifted, and this
matter is hereby CONSOLIDATED with the Related Cases. A Consolidation Order
will be filed separately.
BACKGROUND
These Related Cases arise from the operations of a now-closed pipe valve
manufacturing facility located in Rapides Parish, Louisiana (the “Dresser Facility”).
Plaintiffs in the Related Cases claim that the Dresser Facility improperly disposed of
solvents, cutting oils, acids, and caustics, thereby contaminating the groundwater
and soil in the surrounding area. [Barnes Doc. 47]; [Barton Doc. 101]; [Barrett Doc.
1]; [Cook Doc. 1]; [Petty Doc. 13]. Hundreds of plaintiffs filed lawsuits alleging
personal injury and property damage claims against Dresser and other defendants in
state and federal courts, alleging that this contamination migrated onto their nearby
properties, causing both property damage and either present or potential future
personal injury resulting from their exposure to toxins. Id.
On October 1, 2021, the Magistrate Judge issued a Coordinated Discovery
Order [Barnes Doc. 41]; [Barrett Doc. 66]; [Cook Doc. 36] in some of the Related Cases,
pursuant to which the Plaintiffs were ordered to produce “Plaintiff Information
Sheets,” identifying the specific properties at issue and the personal injuries allegedly
caused by the Defendants. In the instant Motions, Defendants claim – despite the
Court’s order – that: (i) they have not received a Plaintiff Information Sheet for each
Plaintiff in the Related Cases, and (ii) for the ones they did receive, nearly every
residential property owner asserts a personal injury claim without regard to: (a) their
proximity to the affected groundwater; (b) the concentrations of TCE and/or PCE
detected or not detected in their homes; (c) their length of time in the allegedly
impacted residence; or (d) the nature of their alleged ailment. Defendants further
argue that most, if not all, of the Plaintiffs are unable to show sufficient exposure and
causation to support a personal injury claim.
On September 15, 2023, the Court consolidated the Related Cases pursuant to
Rule 42 for the limited purpose of determining common issues of fact. [Barrett Doc.
88]; [Barnes Doc. 117]; [Cook Doc. 61]; [Petty Doc. 45]; [Barton Doc. 113]. A
consolidated Phase I trial of these common issues is set for May 13, 2024. Among
the common issues that will be tried during Phase I is the cause of the toxic plume
and the allocation of responsibility among the defendants. A deadline of February
13, 2024, has been set for the completion of all discovery.
A "Lone Pine” order, which derives its name from Lore v. Lone Pine Corp., No.
L–33606–85, 1986 WL 637507 (N.J. Super. Ct. Law Div. Nov. 18, 1986), is a discovery
tool designed to address the complex issues and potential burdens on defendants and
courts in mass tort litigation by requiring plaintiffs to meet an evidentiary threshold
before being permitted to further pursue their claims. See Acuna v. Brown & Root
Inc., 200 F.3d 335, 340 (5th Cir. 2000) (discussing use of Lone Pine orders in mass
tort litigation). Rule 16(c)(2) affords district courts wide discretion to manage
discovery in civil actions, and Lone Pine orders are typically issued under Rule
16(c)(2)(L), which permits district courts to adopt “special procedures for managing
potentially difficult or protracted actions that may involve complex issues, multiple
parties, difficult legal questions, or unusual proof problems . . .” Id. “The basic
purpose of a Lone Pine order is to identify and cull potentially meritless claims and
streamline litigation in complex cases.” In re Vioxx Prod. Liab. Litig., 557 F. Supp.
2d 741, 743 (E.D. La. 2008), aff'd, 388 F. App'x 391 (5th Cir. 2010), citing Baker v.
Chevron USA, Inc., 2007 WL 315346, *1 (S.D. Ohio Jan.30, 2007).
District courts in the Fifth Circuit routinely enter Lone Pine orders in mass
tort cases to facilitate case management and provide structure to the discovery
process. See, e.g., In re Xarelto (Rivaroxaban) Prods. Liab. Litig., MDL No. 2592,
2021 WL 493069, at *1 (E.D. La. Feb. 10, 2021) (requiring plaintiffs to provide a fact
sheet and related documents followed by “a case-specific [expert] report from a
licensed physician” along with medical records and an affidavit of compliance signed
by the plaintiff); In re 1994 Exxon Chem. Plant Fire Litig., Master Docket No. 94-MS-
3-C-1, 2005 WL 6252291, at *1 (M.D. La. April 29, 2005) (requiring “that each
plaintiff produce an affidavit from a qualified treating or other physician, and an
affidavit from a qualified real estate appraiser or other real estate expert.”); see also
In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on Apr. 20,
2010, MDL No. 2179, 2016 WL 614690, at *5 (E.D. La. Feb. 16, 2016) (requiring each
plaintiff to provide descriptions of their alleged ailments, the date, time, and locations
of exposure, and other information relevant to confirm the plaintiff’s exposure and
general causation); Case Management Order No. 1 (Dkt. #36), Abner v. Hercules, Inc.,
No. 2:14-cv-00063 (S.D. Miss. Nov. 10, 2014) (requiring each plaintiff in a property
contamination case to provide affidavits showing that constituents were present on
their property and that there was a likely migration pathway to their property from
the defendant’s facility); Order (Dkt. #3387), In re Complaint of AET Inc. Ltd., No.
1:10-cv-00051 (E.D. Tex. March 22, 2011) (requiring each plaintiff in a personal injury
and property damage case to produce affidavits showing dates of treatment, names
of medical providers, causation, specific properties, a detailed description of the
damage, the identity of the constituents that caused the damage, and the amount in
damages suffered by the plaintiff).
In Steering Comm. v. Exxon Mobil Corp., a case involving smoke exposure from
a chemical plant fire, the Fifth Circuit approved the district court’s order requiring
that each plaintiff produce, pursuant to a Lone Pine order, either an affidavit from a
qualified treating or other physician, or an affidavit from a qualified real estate
appraiser or other real estate expert, depending on the type of injury alleged. 461
F.3d 598, 604 & n.2 (5th Cir. 2006). As is the case here, the district court in Exxon
Mobil had previously denied the plaintiffs’ motion to certify a class action, noting that
the Lone Pine order served as a useful tool in cases where class certification is
inappropriate, but discovery is nevertheless complex. Exxon Mobil Corp., 461 F.3d
at 605.
Here, the parties in the Related Cases have disagreed about both the utility
and the timing of the entry of a Lone Pine order at this stage in the litigation. While
acknowledging that Lone Pine orders can assist the Court and parties in certain mass
toxic tort cases, Plaintiffs oppose the instant motions on grounds that a Lone Pine
order is an extraordinary remedy that is not appropriate at this juncture. Plaintiffs
argue that they should not be required to submit prima facie evidence of their
personal injury claims prior to the completion of discovery and the resolution of
common issues at the Phase I jury trial on May 13, 2024. They also contend that
entry of a Lone Pine order would be tantamount to an improper substitute for
summary judgment.
Defendants, on the other hand, contend that some of the Related Cases have
been pending for more than three years, and that the discovery sought in the Lone
Pine order regarding medical causation is information the Plaintiffs should have had
at the time they filed their lawsuits. To counter the Plaintiffs’ argument that
causation simply cannot be determined at this time, Defendants cite to the sworn
Declaration of Dr. Christopher Teaf, a toxicologist, who testified that sufficient
information exists to perform a causation analysis, specifically:
Extensive sampling efforts of defendant’s property, as well as the
surrounding areas, have been ongoing since at least 2012. Those
samples have been taken from surface water, groundwater, soil vapor,
soil, indoor air and ambient air. In this case, those samples – or samples
like them that could be obtained by Plaintiffs – are sufficient to perform
a toxicological health risk assessment and determine the likelihood of
disease causation to a reasonable degree of scientific certainty.2
Furthermore, Defendants argue that Dresser has investigated the impacts of
chlorinated solvent to groundwater, which has resulted in thousands of air, soil, and
water samples over a vast geographic area, at considerable expense, and that this
data can be used – and should have already been used – to assess causation with
respect to each Plaintiff. In short, Defendants argue that Plaintiffs have delayed the
2 See Declaration of Christopher Teaf, Ph.D., attached as Exhibit 5 to Defendants’ Reply
brief. [Barnes Doc. 120-5, ¶ 13].
process of conducting a causation analysis for each individual Plaintiff because of the
costs associated with such an undertaking. They further argue that the filing of so
many lawsuits without a threshold level of evidence is sanctionable.
Lone Pine orders have been found to be particularly useful, as Plaintiffs
themselves point out, where there is some articulable suspicion or skepticism
concerning the evidentiary support for certain of plaintiffs’ claims. In fact, a central
element supporting the original discovery order issued in the Lone Pine case was an
EPA report casting serious doubt on the pollution alleged against those defendants.
Russell v. Chesapeake Appalachia, L.L.C., 305 F.R.D. 78, 84 (M.D. Pa. 2015), citing
Lone Pine, 1986 WL 637507 at *1. Subsequent courts considering Lone Pine orders
have considered the defendant’s ability to produce evidence demonstrating the
plaintiff’s claims as dubious. See, e.g., McManaway, 265 F.R.D. at 389 (“A Lone Pine
order should issue only ... after the defendant has made a showing of significant
evidence calling into question the plaintiffs’ ability to bring forward necessary
medical causation and other scientific information.”). While the Court makes no
finding at this time with respect to the viability of any of the Plaintiffs’ personal
injury claims in the Related Cases, the Court notes that Defendants’ expert Dr.
Christopher Teaf has concluded that there is no general causal link between TCE
and/or PCE exposure and the vast majority of the Plaintiffs’ alleged conditions.3
3 See Declaration of Christopher Teaf, Ph.D., attached as Exhibit 5 to Defendants’ Reply
brief. [Barnes Doc. 120-5, ¶ 17].
The Court also takes into consideration the evidence and expert testimony
admitted during its Rule 65 hearing in the related matter of Hyatt v. Dresser, LLC,
No. 1:20-cv-01460-DCJ-JPM. There, on February 23-24, 2022, this Court conducted
an evidentiary hearing on the Plaintiffs’ Motion for Preliminary Injunction [Doc. 1].
After two days of testimony,4 the Court denied the Plaintiffs’ Motion for Preliminary
Injunction, specifically finding that the Plaintiffs failed to meet their burden of
demonstrating a measurable risk to their health given the low levels of PCE and TCE
that were found in the air in their home.5 The Court further found that, despite those
plaintiffs credibly testifying that they were concerned about exposure to chemicals
from the Dresser facility, they had not been diagnosed with any medical condition
linked to TCE and/or PCE exposure. Further, the Hyatt plaintiffs had taken no
actions – such as consulting their physicians, requesting an air filter from Dresser,
or attempting to sell their home or otherwise physically relocate – that were
consistent with their claims that they had developed genuine and serious mental
distress resulting from their alleged exposure to these chemicals.6 Thus, this Court
has already determined that at least two plaintiffs allegedly exposed to PCE and TCE
were unable to show a causal connection between their alleged physical and mental
4 In addition to the plaintiffs, the Court heard evidence from Carey Dicharry, a geologist
supervisor with the Louisiana Department of Environmental Quality; Margo Moss, an
environmental scientist; Dr. Stephen King, a toxicologist trained in the fields of epidemiology
and environmental science; and John Ellis, an environmental investigator.
5 See Hyatt, et al v. Dresser, LLC, No. 1:20-cv-01460, Minutes of Court [Docs. 78 & 79]
and the Official Transcripts of Hearing [Docs. 85 & 86].
6 Id.
symptoms and the presence of PCE and TCE allegedly caused by the contaminant
dispersion at issue.
Considering the foregoing, and after careful consideration of the arguments of
the parties, the applicable law, and the current posture of the litigation in the Related
Cases, the Court finds that entry of a Lone Pine order is appropriate in the Related
Cases pertaining to the Plaintiffs’ claims for personal injury. The instant case
involves 86 plaintiffs—in addition to the 259 plaintiffs in the Related Cases and the
two plaintiffs in the Arnold case--bringing complex toxic tort cases against multiple
defendants. The pleadings offer little, if any, specific causation theories or claims
describing the impact of the contaminants at issue on each individual Plaintiff. The
Court finds that Plaintiffs are now in possession of sufficient discovery and
information regarding the nature, geographical extent, and chemical constituents of
the toxic plume to comply with a Lone Pine order. Each plaintiff should have at least
some information regarding the nature of his or her alleged injuries, the
circumstances under which he or she could have been exposed to harmful substances,
and the basis for believing that the named defendants were responsible for those
alleged injuries. See Acuna, 200 F.3d at 340, citing Beanal v. Freeport–McMoran,
Inc., 197 F.3d 161, 165 (5th Cir. 1999) (plaintiff's complaint is insufficient where it is
devoid of “names, dates, locations, times, or any facts that would put [defendant] on
notice as to what conduct supports ... his claims”). The Court further finds that entry
of a Lone Pine Order will simplify the Related Cases, streamline costs to both the
Plaintiffs and the Defendants, conserve judicial resources, and aid the Court in
preparing for both the Phase I trial as well as further proceedings in each of the
Related Cases.
For the foregoing reasons, and in an effort to expedite discovery, conserve
judicial resources, and facilitate the administration of these Related Cases,
IT IS HEREBY ORDERED that the MOTION FOR ENTRY OF LONE PINE ORDER
[DOC. 27] is GRANTED.
IT IS FURTHER ORDERED that, on or before February 28, 2024,7 any
Plaintiff in this matter who has not done so shall produce to Defendants a completed
Plaintiff Information Sheet.
IT IS FURTHER ORDERED that, on or before May 24, 2024, each Plaintiff
claiming a personal injury sustained as a result of exposure to trichloroethylene
(TCE) or tetrachloroethylene (PCE), either to himself or herself, or on behalf of a
minor or decedent, must serve on the Defendants a sworn affidavit from a licensed
physician or other qualified expert, or both, as may be necessary, which sets
forth the following for each claimant:
(a) A list of all specific injuries, illnesses, or conditions that the
claimant suffered as a result of the alleged exposure to
trichloroethylene (TCE) or tetrachloroethylene (PCE);
(b) The date(s) on which each such injury, illness, or condition was first
suffered by the claimant and the date(s) on which a physician or
other health care professional examined or treated the claimant for
the injury, illness, or condition allegedly caused by exposure to
trichloroethylene (TCE) or tetrachloroethylene (PCE);
7 Due to the recent consolidation, the Court will consider granting Plaintiffs a
modification of these deadlines, which will be discussed at the February 20, 2024, status
conference.
(c) An explanation of the manner of exposure (i.e., ingestion,
inhalation, dermal contact, etc.), the dates of exposure, and the
duration of exposure;
(d) The name and address of each physician or other medical care
provider who treated the claimant, a summary of the treatment
provided, and any diagnosis;
(e) An opinion, based on a reasonable degree of medical or scientific
probability, that the claimed injury, illness, or medical condition
was caused by the exposure to trichloroethylene (TCE) or
tetrachloroethylene (PCE); and
(f) A descriptive narrative and list of source materials, if any,
providing the scientific and medical basis for any expert’s opinion
that the claimed injury, illness, or medical condition may be caused
by exposure to trichloroethylene (TCE) or tetrachloroethylene
(PCE).
IT IS FURTHER ORDERED that the STAY previously entered in this matter
in this matter is LIFTED.
THUS, DONE AND SIGNED in Chambers on this 25‘ day of January 2024.
Chord C
DAVID C. JOSEPH
UNITED STATES DISTRICT JUDGE
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