We think Lone Pine orders are pretty fair. Lone Pine orders are case management orders that require plaintiffs in multidistrict litigation (MDL) to produce specific evidence without which the plaintiffs cannot make a prima facie case. There is nothing unfair about dismissing a case that is fatally flawed for want of critical evidence that cannot be obtained. Yet Lone Pine orders rarely sit well with plaintiffs who cannot (or do not want to have to) make the showing required of them. Rather than accept their fate, these plaintiffs often attack the Lone Pine order in an effort to delay the inevitable. We discussed one such effort in the In re Zostavax MDL in 2022 and earlier this year. The In re Taxotere (Docetaxel) MDL now provides another example, not only of how plaintiffs attack Lone Pine orders but also of how courts should respond to these unmerited attacks. In re Taxotere (Docetaxel) Prods. Liab. Litig., 2024 WL 4362982 (E.D. La. Oct. 1, 2024).
The plaintiffs in the Taxotere MDL allege that the subject medication causes permanent chemotherapy-induced alopecia (PCIA). According to the plaintiffs’ own expert witness, PCIA differs from other kinds of alopecia (i.e., hair loss) in ways that require a physical examination to diagnose. Thus, in order to ensure that plaintiffs in the MDL had actually experienced PCIA rather than a condition that was not at issue, on February 21, 2024, the court issued a Lone Pine order (CMO 40) requiring that each plaintiff produce an expert affidavit confirming a diagnosis. As to deceased claimants, who for obvious reasons could no longer be physically examined, CMO 40 allowed for affidavits “certifying that the expert physically examined the deceased and that, on any occasion prior to death, the deceased was diagnosed with [PCIA].” The deadline for compliance with CMO 40 was twice extended, once in response to the plaintiffs’ first motion for reconsideration and once at the request of the parties and magistrate judge.
On August 30, 2024, the plaintiffs filed a second motion for reconsideration. The plaintiffs argued that CMO 40 imposes an unfair burden on the families and representatives of deceased plaintiffs by requiring an in-person examination and pre-death diagnosis of PCIA, noting among other things that some representatives who were not yet parties to the case would not have sufficient time to comply and that product liability law did not per se require such an examination. The court rejected both arguments. As to the first, the court noted that CMO 40 had been entered months earlier and that the plaintiffs had not presented any credible evidence that additional time was needed. As to the second, the court noted that Lone Pine orders are designed to handle complex issues and “strike a balance between efficiency and equity.” Their very purpose is “to identify and cull potentially meritless claims and streamline litigation in complex cases.” No party disputed that 80% of the MDL plaintiffs had yet to obtain a diagnosis of PCIA, and one of the cases in the bellwether pool had been dismissed after her alopecia was diagnosed as a condition other than PCIA. Many other plaintiffs had dismissed their claims in lieu of proceeding when called upon to produce proof of causation. In short, CMO 40 was a reasonable means by which to probe the viability of the remaining cases in the MDL.
The plaintiffs argued that compliance with the order would be “nearly impossible” because an in-person examination and diagnosis could not be made after the deceased plaintiffs’ death. But they did not dispute that expert medical testimony would be needed in order to prove a diagnosis of PCIA. The moving plaintiffs claimed instead that an expert could “likely” make a diagnosis from photographs or witness recollections of the deceased plaintiffs’ appearance. That, however, directly contradicted the MDL plaintiffs’ expert’s opinion that a diagnosis of PCIA required a physical examination and could not be made based on photos. Because the plaintiffs had failed to refute that opinion or to identify any other way to diagnose PCIA, the court denied the motion for reconsideration.
Life is not always fair. But a plaintiff who cannot make a prima facie case should not be allowed to proceed to trial, no matter how sympathetic their situation. There is nothing unfair about a Lone Pine order hastening the dismissal of cases that are incapable of meeting their burden at trial.
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