Mob Bosses in Black Robes V

Multidistrict Litigation Mopping-Up

By Brian J. Donovan

This article provides a short overview of how a “resourceful” MDL judge employs Lone Pine orders, or variations thereof, to eliminate those few remaining non-cooperating, pesky plaintiffs who have the audacity to demand justice. Since the BP oil well blowout MDL (“MDL 2179”) is considered to be the gold standard for MDL, it will be used as a case study.

The Lone Pine Order: A Post-Settlement Mop-Up Procedure?

Transferee judges tend to issue Lone Pine orders after most plaintiffs’ cases are resolved through a comprehensive settlement. Lone Pine orders are usually issued with little advanced notice. Although plaintiffs may be relying on common evidence produced by the Plaintiffs’ Steering Committee (“PSC”), when they refuse to settle, Lone Pine orders might require a plaintiff to retain an individual expert and produce her opinion within a couple of weeks. In re Fosamax Prods. Liab. Litig., No. 06-md-1789 (S.D.N.Y. July 30, 2014). In short, Lone Pine orders require non-settling plaintiffs to provide some evidentiary support for their claims to avoid dismissal. Lore v. Lone Pine Corp., No. L-33606-85., 1986 WL 637507 (N.J. Super. Ct. Nov. 18, 1986); Acuna v. Brown & Root Inc., 200 F.3d 335 (5th Cir. 2000).

An MDL Court’s authority to enter a Lone Pine order stems from Federal Rule of Civil Procedure 16(c)(12). A federal district court is afforded broad discretion in crafting and enforcing such case management orders.


In the Vioxx MDL, a Lone Pine order imposed certain discovery requirements on plaintiffs, including production of pharmacy and medical records, expert reports, and answers to Defendant Merck’s interrogatories. In re Vioxx Prods. Liab. Litig., 509 Fed. Appx. 383, 384-85 (5th Cir. 2013). Incredibly, the MDL Court permitted Defendant Merck to subject the plaintiffs in the Vioxx case to no less than three Lone Pine orders as a prelude to requesting dismissal.


Defendants routinely claim that a Lone Pine “case management” scheme is supported by Lore v. Lone Pine Corp., 1986 WL 637507 (N.J. Super Ct. Nov. 18, 1986), an unreported New Jersey trial court decision.


In Lone Pine, plaintiffs claimed that a landfill polluted their properties and caused various physical ailments. There were 464 named defendants and it was unclear what the causes of the plaintiffs’ injuries were or which defendants caused them. The court found that, after sixteen months of litigation, the plaintiffs had “failed to provide anything that resembled a prima facie cause of action,” whether for property damage or personal injuries. In addition, during the course of the litigation, the Environmental Protection Agency (“EPA”) issued a decision summarizing sixteen studies that had been done on the landfill. The EPA decision was completely contrary to the claims of the plaintiffs, suggesting that there was no groundwater contamination, no transport of pollution, and no contamination beyond the landfill and its immediate vicinity.


In an effort to determine whether any of the claims were valid, the New Jersey trial court resorted to extreme measures and ordered plaintiffs to produce: “reports of treating physicians and medical or other experts, supporting each individual plaintiff’s claim of injury and causation.” Failure to do so led to dismissal of the claim with prejudice.


Clearly, the Lone Pine court issued the order because: (1) a governmental agency had issued a report in direct contravention of the plaintiffs’ claims; (2) the plaintiffs had put forth no independent evidence in support of their claims; and (3) the plaintiffs were unable to identify which of hundreds of defendants allegedly caused an injury and how that injury was caused.


There is no need to resort to a Lone Pine order in cases where the system that the MDL Court has fashioned is working. A Lone Pine order greatly and unnecessarily increases the costs for the plaintiff. Removing the safeguards of the rules of civil procedure and requiring the expenditure of vast sums of money is simply unfair to those MDL plaintiffs who have not had the benefit of rulings and trials to guide their decisions.


An MDL Court should not allow a defendant to change the rules, or, more precisely, to create rules and procedures that simply do not exist, even if they seem like a “good idea” from the defendant’s perspective.


Resorting to crafting and applying a Lone Pine order should only occur where existing procedural devices explicitly at the disposal of the parties by statute and federal rule have been exhausted or where they cannot accommodate the unique issues of the litigation. Digitek, 264 F.R.D. at 259. The reason for this: Lone Pine orders increase the risk that the procedural rules and safeguards set forth in the rules of civil procedure will be ignored. See McManaway, 265 F.R.D. at 386 (citing Simeone v. Girard City Bd. of Educ., 872 N.E. 2d 344, 350 (Ohio Ct. App. 2007)); see also Digitek, 264 F.R.D. at 257.


There are orderly processes provided by the civil rules, which are designed both to bring the meritorious case to a conclusion and to derail the meritless case. Simeone, 872 N.E.2d at 644. Where effective procedural mechanisms are already being (or can be) successfully employed, courts have declined to enter Lone Pine orders. See, e.g., Abrams v. Ciba Specialty Chems. Corp., No. 08-00068-WSB, at *4-5 (S.D. Ala. Oct. 23, 2008). Courts have held that entry of a Lone Pine Order was unwarranted where the plaintiffs produced basic factual evidence about their claims, that much of the evidence and arguments on causation would be substantially the same for all plaintiffs, that the case should instead proceed with a test group, and that the use of a Lone Pine order would not advance the goal of focusing the parties’ attention and efforts on the efficient resolution of the test case. Morgan v. Ford Motor Co., No. 06-1080 (JAP), 2007 WL 1456154, at *9-10 (D. N.J. May 17, 2007). One MDL Court found that a Lone Pine order requiring more than 700 plaintiffs to produce affidavits from qualified environmental experts and licensed physicians would be inappropriate, and that a phased discovery process, employing an initial round of bellwether trials, would be followed instead. In re 2004 DuPont Litig., 2006 WL 5097316, at *2 (E.D. Ky. Mar. 8, 2006). Another MDL Court held that adoption of a Lone Pine order would be premature where the information that the defendants sought could be obtained through the ordinary process of written discovery.


Eleventh Circuit Judge Adalberto Jordan’s discussion of a district court’s use of a Lone Pine order, before adjudicating the sufficiency of the plaintiffs’ complaint, is instructive. Judge Jordan states, “As a general matter, we do not think that it is legally appropriate (or for that matter wise) for a district court to issue a Lone Pine order requiring factual support for the plaintiffs’ claims before it has determined that those claims survive a motion to dismiss under Twombly….It is one thing to demand that plaintiffs come forward with some evidence supporting certain basic elements of their claims as a way of organizing (and maybe bifurcating) the discovery process once a case is at issue, and dealing with discrete issues or claims by way of partial summary judgment motions. It is quite another to begin compiling, analyzing and addressing evidence (pro and con) concerning the plaintiffs’ allegations without reciprocal discovery before those allegations have been determined to be legally sufficient under Rule 12(b)(6).”


Judge Jordan’s reference to the Twombly case is also instructive. Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” As the U.S. Supreme Court held in Twombly, the pleading standard Rule 8 announces does not require “detailed factual allegations,” but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Nor does a complaint suffice if it tenders “naked assertions” devoid of “further factual enhancement.” Bell Atlantic Corp. v. Twombly 550 U. S. 544 (2007).


To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’”


Two working principles underlie the U.S. Supreme Court’s decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we “are not bound to accept as true a legal conclusion couched as a factual allegation” Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief will be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged – but it has not “shown” – “that the pleader is entitled to relief.” Fed. Rule Civ. Proc. 8(a)(2).


In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. https://www.supremecourt.gov/opinions/08pdf/07-1015.pdf


MDL PSC members routinely argue that a Lone Pine order is appropriate as “a post-settlement mop-up procedure utilized to address those cases which either were not eligible for compensation through the MDL settlement program or which had opted-out of participation in the MDL settlement program.” In reality, the purpose of a Lone Pine order is to eliminate those few remaining non-cooperating, pesky plaintiffs who have the audacity to demand justice. This is another reason why the “Plaintiffs’ Steering Committee” is a misnomer. It is more appropriate to refer to it as the “Transferee Judge’s Steering Committee.”

Mopping-Up in MDL 2179

Create means “to produce through imaginative skill.” Judge Barbier, in lieu of issuing a Lone Pine order, created Pretrial Order No. 60 (“PTO 60”) and Pretrial Order No. 64 (“PTO 64”) to eliminate those few remaining non-cooperating, pesky plaintiffs who have the audacity to demand justice.


PTO 60

The MDL 2179 Court previously employed the “B1” Master Complaint as a procedural device for administrative purposes to facilitate the filing of short form joinders (“SFJs”) by plaintiffs. Plaintiffs were permitted to join in the “B1” Master Complaint by filing short form joinders. Individual and business plaintiffs who filed individual lawsuits that raised non-governmental economic loss and property damages claims and were consolidated with these proceedings were deemed “B1” Plaintiffs, even if they did not also file a short form joinder.


On March 29, 2016, approximately six years after the BP oil well blowout incident, the MDL 2179 Court issued PTO 60 wherein the court dismissed the amended “B1” Master Complaint as having “no further administrative or procedural benefit.”


In PTO 60, the court required plaintiffs in pleading bundle “B1” who had filed a timely claim, and not previously released their claim, to file and serve on BP a sworn statement disclosing information regarding their claims. PTO 60, in pertinent part, states:


“A. As to Plaintiffs who filed Individual Lawsuits.

(i) Any plaintiff who previously filed an individual lawsuit must complete the sworn statement in the form reflected in Exhibit A. The completed sworn statement shall be attached to a cover sheet reflecting the caption of the individual lawsuit in the form of Exhibit B. Both the cover sheet and the attached sworn statement must be filed into the record of the plaintiff’s individual lawsuit (as opposed to the master docket for MDL 2179) no later than May 2, 2016. Plaintiff also shall serve the sworn statement on the Plaintiffs’ Steering Committee (“PSC”) and counsel for BP no later than May 2, 2016.”


In addition, the court required those “B1” plaintiffs who had not previously filed an individual complaint (defined as a complaint not joined in by any other plaintiffs) against BP to file a new individual complaint. PTO 60, in pertinent part, states:


“B. Plaintiffs who DID NOT file Individual Lawsuits, (i.e., only filed a SFJ and/or were part of a “Mass Joinder” Lawsuit).

(i) Where Plaintiffs did not file an individual lawsuit, but instead filed a SFJ and/or were part of a complaint with more than one plaintiff, each such plaintiff must, by May 2, 2016, file an individual lawsuit (Complaint) (one per plaintiff), using the caption reflected in Exhibit C. The Complaint should include as an attachment the completed sworn statement in Exhibit A. Each plaintiff also must, by May 2, 2016, serve the PSC and Counsel for BP with a copy of the completed sworn statement.

(ii) Plaintiffs that did not file individual lawsuits, but instead filed a SFJ and/or were part of a complaint with more than one plaintiff, who fail to comply with the above requirements by May 2, 2016, will have their claims deemed dismissed with prejudice without further notice.”


In short, plaintiffs who failed to comply with the sworn statement requirement or the new individual complaint requirement by the compliance deadline (May 2, 2016) were to have their claims deemed dismissed with prejudice without further notice.


PTO 60 further addresses the issue of “Presentment” under the OPA. PTO 60 asks any plaintiff who previously filed an individual lawsuit, “Did you, the plaintiff seeking relief, present this claim at least 90 days prior to filing a lawsuit or joining the “B1” Complaint?”


A logical question is: Why didn’t the MDL 2179 PSC immediately ask each plaintiff if he or she presented his or her claim to BP (the “Responsible Party”) at least 90 days prior to filing a lawsuit or joining the “B1” Complaint, as required under the OPA, when the plaintiff’s case was transferred to MDL 2179 or when the plaintiff filed a short form joinder?


Following a show cause process, the MDL 2179 Court recognized approximately 1,000 remaining “B1” plaintiffs to be compliant with PTO 60 and subject to further proceedings in MDL 2179. The claims of any other remaining “B1” plaintiffs were dismissed. Certain plaintiffs who were found noncompliant with PTO 60 and had their claims dismissed by the court’s December 16, 2016 Reconciliation Order have filed motions for reconsideration and/or notices of appeal.


On July 14, 2016, the MDL 2179 Court issued an Order (Re: Compliance with PTO 60 Regarding All Remaining Claims in Pleading Bundle “B1”) wherein the court held “As to all Plaintiffs in the “B1” bundle, only those Plaintiffs who have not previously released their claims, have made timely presentment as required by OPA, have previously filed an individual lawsuit, and have otherwise complied with the requirements of PTO 60 have preserved their individual claims. All other B1 bundle claims are time-barred.”


BP believes that a very large number of these approximately 1,000 remaining claims are subject to dismissal “based upon the MDL 2179 Court’s prior orders, lack of OPA presentment, or release (including membership in the settlement classes and their attendant releases).” Certain of these claims may require further proceedings, including but not limited to dispositive motion practice.


Interestingly, and ironically, BP states that “it also reserves all of its rights concerning its arguments that OPA displaces all forms of maritime claims.”


Judge Barbier states that “the purpose of PTO 60 is to assist the Court in streamlining the remaining claims and to facilitate the administration of this MDL and the prosecution of the actions herein…” Judge Barbier should say “the purpose of PTO 60 is to assist the Court in streamlining the dismissal of the remaining claims….herein. If necessary, to further facilitate the administration of this MDL, the Court shall issue Lone Pine orders.”


PTO 64

On February 22, 2017, the Court issued Pretrial Order No. 64/Case Management Order No. 6 (“PTO 64,” Rec. Doc. 22297), one of the goals of which was to identify those “Remaining B1 Plaintiffs” who could plausibly allege a claim under general maritime law.


As used in PTO 64, “Remaining B1 Plaintiffs” meant those plaintiffs who had been deemed compliant with PTO 60 and who had not voluntarily dismissed their claims.


The MDL 2179 Court has previously ruled that “B1” plaintiffs may bring a claim under general maritime law tort, in addition to or in alternative of a claim under the Oil Pollution Act of 1990, 33 U.S.C. § 2701, et seq. However, only commercial fishermen or those who suffered damage to a proprietary interest have a cause of action under general maritime law. See In re: Oil Spill by the Oil Rig Deepwater Horizon, 902 F. Supp. 2d 808 (E.D. La. 2012); In re: Oil Spill by the Oil Rig Deepwater Horizon, 808 F. Supp. 2d 943, 962 (E.D. La. 2011).


PTO 64 required that each Remaining B1 Plaintiff who wished to pursue a general maritime law claim must complete and serve upon BP’s counsel and the Plaintiffs’ Steering Committee (“PSC”) by April 5, 2017 a “Sworn Statement Regarding General Maritime Law Claims.”


If a Remaining B1 Plaintiff failed to comply with PTO 64, then that plaintiff’s general maritime law claim(s) would be deemed waived and “any such general maritime law claims shall be dismissed without further notice and with prejudice.” (PTO 64 at 3).


The Medical Settlement

Starting on February 22, 2017, the Court issued a trio of Lone Pine orders (PTO 63, PTO 66, and PTO 68) which applied to all remaining claims in the B3 bundle.


PTO 63 required all plaintiffs who had timely filed a claim in the B3 pleading bundle and had not released their claims (through the Medical Settlement or otherwise) to submit certain documents. Specifically, B3 plaintiffs who previously filed an individual lawsuit (i.e., a single-plaintiff complaint without class allegations) were required to complete, file, and serve a sworn statement regarding the status of their claim. B3 plaintiffs who had not filed an individual lawsuit, but instead had filed a Short Form Joinder and/or were part of a complaint with more than one plaintiff, were required to complete, file, and serve an individual lawsuit in this Court and a sworn statement. B3 plaintiffs initially had until April 12, 2017 to comply with PTO 63. PTO 63 warned that plaintiffs who failed to comply would “face dismissal of their claims with prejudice without further notice.” (PTO 63 at 7, Rec. Doc. 22295).


PTO 66

On April 9, 2018, the Court issued Pretrial Order No. 66 (“PTO 66,” Rec. Doc. 24282), which required remaining B3 plaintiffs to complete, sign, and serve a Particularized Statement of Claim (“PSOC,” Exhibit A to PTO 66) on counsel for BP. The PSOC is a 12-page questionnaire that was designed “to help the parties and the Court better understand the nature and scope of the injuries, damages, and causation alleged by the remaining B3 plaintiffs.” The PSOC solicited general background information about each B3 plaintiff as well as information specific to the plaintiff’s claim. Part “E” of the PSOC, entitled “Non-Exposure Personal Injury Claims,” and Part “F,” entitled “Information About Your Injury or Illness,” required the plaintiff to provide the following information:


27. For your non-exposure personal injury, please state: A. The nature of your injury: B. The date(s) of your injury: C. The location(s) of your injury: D. The work that you were performing when you sustained your injury: E. Identify any individual(s) who witnessed your injury:


28. Describe in as much detail as possible the circumstance(s) of your injury:


29. Describe in as much detail as possible the bodily injury (or medical condition) that you claim resulted from the spill or your cleanup work in response to the oil spill:


30. Please explain how your injury (or medical condition) resulted from the spill or your cleanup work in response to the oil spill:


31 On what date did you first report or seek treatment for your injury or illness:


32. On what date was your injury first diagnosed:


33. Identify the doctor(s) (or other healthcare providers) who first diagnosed your injury (or condition):


34. Identify doctor(s) (or other healthcare providers) who have treated your injury (or condition):


35. Have you ever suffered this type of injury or condition before (i.e., before the date given in your answer to Question No. 32)? [yes or no] If “Yes,” A. When? B. Who diagnosed the injury (or condition) at that time? . . .


37. Please list your family and/or primary care physician(s) for the past ten (10) years:


38. Do you have in your possession, custody, or control, any medical records, bills, and any other documents, from physicians, healthcare providers, hospitals, pharmacies, insurance companies, or others who have provided treatment to you relating to the diagnosis or treatment of any injuries or illnesses arising from the Deepwater Horizon oil spill or response efforts, or that you otherwise identified in this Form?


39. Describe specifically the compensatory damages that you claim in your lawsuit, including the nature of the damage, the date(s) of the damage, the amount of the damage, and the calculations used to arrive at that amount:


40. Have you received workers compensation or other compensation or reimbursement for the injury alleged or associated expenses? [yes or no] If “Yes”: A. From whom did you receive this compensation or reimbursement? B. When did you receive this compensation or reimbursement? C. What was the amount of the compensation or reimbursement? (Rec. Doc. 24282-1).


PTO 68

On October 21, 2019, the Court issued Pretrial Order No. 68 (“PTO 68”), which required, among other things, that B3 plaintiffs complete a Supplemental Medical Disclosure Form, which provided additional information about the conditions that they claimed were caused by their exposure to oil or other chemicals, provide an executed authorization for release of medical records, and produce medical records in their possession to BP within 90 days. (Rec. Doc. 26070).


There is no justification for allowing a judicial system, which is intended to protect victims of mass torts, to resort to issuing Lone Pine orders in cases where the system that the MDL Court has fashioned is working. A Lone Pine order greatly and unnecessarily increases the costs for the plaintiff. Moreover, removing the safeguards of the rules of civil procedure and requiring the expenditure of vast sums of money is simply unfair to those MDL plaintiffs who have not had the benefit of rulings and trials to guide their decisions.


It’s time for MDL judges to focus on justice for the plaintiffs rather than merely judicial efficiency. “MDL Judges” should not be perceived as “Mob Bosses.”

For further reading

COLLUSION: Judicial Discretion vs. Judicial Deception – The Impending Meltdown of the United States Federal Judicial System by Brian J. Donovan

ISBN-13:                     9781634928441

Publication date:       04/20/2018

Pages:                         494

Available at:   https://www.barnesandnoble.com/w/collusion-brian-j-donovan/1127702938