Opinion
Case No. 1:17-cv-00377-C CR Case No. 1:18-cv-00560-C CR Case No. 1:18-cv-01486-CCR
2022-08-11
Elizabeth ANDRES, et al., Plaintiffs, v. TOWN OF WHEATFIELD, et al., Defendants. Alicia Bellafaire, et al., Plaintiffs, v. Town of Wheatfield, et al., Defendants. Theodore Wirth, III, et al., Plaintiffs, v. Town of Wheatfield, et al., Defendants.
ENTRY ORDER DENYING IN PART AND GRANTING IN PART DEFENDANTS' MOTION FOR A LONE PINE ORDER Christina Reiss, District Judge
Plaintiffs are current or previous owners or renters of residential properties in North Tonawanda, New York, and the surrounding area, who have lived in that area for at least one year (collectively, "Plaintiffs"). They seek to bring a class action suit against the Town of Wheatfield (the "Town"); Occidental Chemical Corporation; Bell Helicopter Textron, Inc.; Crown Beverage Packaging, LLC; Greif, Inc.; Republic Services, Inc.; Honeywell International Inc.; Industrial Holdings Corporation; Saint-Gobain Advanced Ceramics, LLC; and Carborundum Corporation (collectively, "Defendants") arising out of Plaintiffs' alleged exposure to toxic substances emanating from the Town's Nash Road landfill (the "Site").
Pending before the court is Defendants' joint motion for a Lone Pine order (Doc. 275), Defendants' joint motion to strike and/or dismiss Plaintiffs' class allegations (Doc. 276), and Defendants' motion for partial summary judgment and dismissal of Plaintiffs' Comprehensive Environmental Response, Compensation, and Liability Act Claims (Doc. 304), which the court took under advisement following oral argument on June 28, 2022.
Pursuant to Fed. R. Civ. P. 16(c)(2)(L), Defendants request that this court "adopt[ ] a phased and expedited disclosure order, wh[ich] is commonly known as a 'Lone Pine' Order," arguing it will "significantly streamline this matter[.]" (Doc. 275-6 at 5.) While formal discovery has not commenced, in light of their claims against the Town, Plaintiffs were required to file notices of claim and the Town was permitted to conduct preliminary oral examinations under oath of Plaintiffs. See NY Gen. Mun. Law §§ 50-e & 50-h. Defendants contend that:
Plaintiffs lack prima facie evidence to support their allegations that they or their properties have been injured by the alleged existence and migration of hazardous substances at and from the [Site] located in the Town[.] Indeed, a review of the hundreds of transcripts of Plaintiffs' sworn testimony to date establishes that no Plaintiff has received (or, in nearly all cases, even sought) a medical opinion linking any alleged injury to any chemical alleged to be located at the [Site], and Plaintiffs' claims that they have suffered property damages are similarly unsubstantiated and, critically, contradicted by available evidence.(Doc. 275-6 at 6.)
Defendants assert this matter presents "exceptional circumstances" necessitating a Lone Pine order that will allow them to identify meritless claims and seek their dismissal. They ask the court to order that "prior to the commencement of general discovery, each Plaintiff provide prima facie evidence, including expert and medical reports, demonstrating causal support for their personal injury and property damage claims." Id. at 7. Plaintiffs respond that a Lone Pine order is not warranted because the parties have not yet participated in reciprocal discovery and Defendants have failed to show that standard discovery practices are insufficient. They contend Defendants are already "on notice of the nature of the[ir] injuries, the circumstances under which exposure to harmful substances occurred, and the basis for believing Defendants were responsible" based on the allegations contained within their 224-page Third Amended Complaint (the "TAC"), which includes "significant details" about each Plaintiff's claims. (Doc. 301 at 5.)
Federal Rule of Civil Procedure 16(c)(2)(L) permits a court to "consider and take appropriate action . . . [including] adopting special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems[.]" Orders issued in some complex toxic tort litigation lawsuits have specified the production of "prima facie" evidence. "The basic purpose of a Lone Pine order is to identify and cull potentially meritless claims and streamline litigation in complex cases."Baker v. Anschutz Expl. Corp., 2013 WL 3282880, at *2 (W.D.N.Y. June 27, 2013) (internal citations omitted) (first alteration in original); see also Acuna v. Brown & Root Inc., 200 F.3d 335, 340 (5th Cir. 2000) ("Lone Pine orders are designed to handle the complex issues and potential burdens on defendants and the court in mass tort litigation. In the federal courts, such orders are issued under the wide discretion afforded district judges over the management of discovery under Fed. R. Civ. P. 16.").
Typically, Lone Pine orders require plaintiffs to provide an affidavit by a specific date that states the following: (1) the identity and amount of each chemical to which the plaintiff was exposed; (2) the precise disease that or illness from which the plaintiff suffers; and (3) the evidence supporting the theory that exposure to the defendant's chemicals caused the injury in question.Alvey v. Gen. Elec. Co., 2021 WL 2012940, at *1 (S.D. Ind. Mar. 29, 2021) (internal quotation marks and citation omitted). "Lone Pine orders may not be appropriate in every case, and even when appropriate, they may not be suitable at every stage of the litigation." McManaway v. KBR, Inc., 265 F.R.D. 384, 385 (S.D. Ind. 2009) (internal quotation marks and citation omitted) (italics supplied).
"A significant criticism of the Lone Pine order is that it gives courts the means to ignore existing procedural rules and safeguards" such as by "severely limit[ing] the litigant's right to discovery[.]" Id. at 386 (internal quotation marks and citation omitted). "If a Lone Pine order is to be entered, it should be structured in a manner that assists the parties in focusing and narrowing areas where further discovery is needed. Failure to produce—at an early stage of the lawsuit—sufficient evidence of exposure or causation cannot result in automatic dismissal of claims without the protections a proper response to a motion for summary judgment under Federal Rule of Civil Procedure 56 provides." Id. at 388. At least one court has held that a "Lone Pine order should issue only in an exceptional case and after the defendant has made a clear showing of significant evidence calling into question the plaintiffs' ability to bring forward necessary medical causation and other scientific information." Id.
In evaluating requests for Lone Pine or modified case management orders, courts have found that a number of factors may be relevant, including (1) the posture of the litigation, (2) the case management needs presented, (3) external agency decisions that may bear on the case, (4) the availability of other procedures that have been specifically provided for by rule or statute, and (5) the type of injury alleged and its cause.In re Fosamax Prod. Liab. Litig., 2012 WL 5877418, at *2 (S.D.N.Y. Nov. 20, 2012) (citing In re Digitek Prod. Liab. Litig., 264 F.R.D. 249, 256 (S.D.W. Va. 2010)).
With regard to the first factor, the posture of the litigation, "Lone Pine orders are disfavored in the early stages of the proceedings where no meaningful discovery has taken place." Hostetler v. Johnson Controls, Inc., 2017 WL 359852, at *5 (N.D. Ind. Jan. 25, 2017) (internal quotation marks and citation omitted); see also Russell v. Chesapeake Appalachian L.L.C., 305 F.R.D. 78, 84 (M.D. Pa. 2015) ("[T]he posture of the litigation is early and discovery has yet to commence. Lone Pine orders are often invoked after discovery has occurred for many months and the plaintiffs still fail to produce substantial evidence.") (internal citations omitted) (emphasis in original). Defendants argue the proceedings cannot be fairly characterized as in their "early stages" because Defendants have conducted numerous 50-h examinations and because the operative Complaints have undergone numerous iterations. Although these cases were filed in 2017 and 2018, discovery to date has been limited. See Adinolfe v. United Techs. Corp., 768 F.3d 1161, 1168 (11th Cir. 2014) ("Lone Pine orders . . . should not be used as (or become) the platforms for pseudo-summary judgment motions at a time when the case is not at issue and the parties have not engaged in reciprocal discovery."). On balance, these cases cannot be considered in their nascent phases.
The second factor, the case management needs presented, weighs heavily in favor of a Lone Pine order. The TAC does not provide substantive details regarding causation and does not present a "signature injury" but instead provides a wide array of claims with varied theories of causation. As Defendants point out, the over three hundred Plaintiffs allege over three hundred distinct injuries "with no discernible pattern[.]" (Doc. 275-6 at 18.) See Manning v. Arch Wood Prot., Inc., 40 F. Supp. 3d 861, 866 (E.D. Ky. 2014) ("In most of the cases where courts grant Lone Pine motions, there are hundreds of plaintiffs and/or hundreds of defendants, and the order is entered as a method of managing complex and very burdensome discovery in mass tort litigation.") (citations omitted); Alvey, 2021 WL 2012940, at *3 (utilizing Lone Pine order in a case with only sixty four individual plaintiffs); but see Morgan v. Ford Motor Co., 2007 WL 1456154, at *8 (D.N.J. May 17, 2007) (refusing to enter a Lone Pine order in case with over 700 plaintiffs and twenty defendants). A mechanism for categorizing claims and eliminating potentially frivolous claims is therefore warranted.
"The third factor involves looking to external agency decisions to see if there are any that impact the merits of the case. In some toxic tort cases, independent agencies have released information that can act as proof of general causation or, conversely, as evidence against it." Manning, 40 F. Supp. 3d at 867 (citing McManaway, 265 F.R.D. at 385). In this case, the alleged sources of causation have been investigated by governmental agencies. Defendants cite a 2019 Remedial Investigation ("RI") completed by the New York State Department of Environmental Conservation ("NYSDEC") that was described in a press release as follows: "[NYS]DEC's expanded sampling of surface soil, subsurface soil, sediment, surface water, and groundwater at the site . . . confirms that landfill contaminants do not present an off-site exposure concern to neighboring properties." (Doc. 275-6 at 22) (internal quotation marks, emphasis, and citations omitted). Plaintiffs counter that this quote was cherry-picked from the press release rather than the NYSDEC's actual report, which they assert "does not contradict Plaintiffs' claims which allege injuries from decades of exposure to and [from] migration of contamination" from the Site. (Doc. 301 at 23.) For example, they contend the 2019 investigation "confirms Plaintiffs' claims that residents who visited the . . . [S]ite recreationally prior to the installation of a fence in 2017 would have been exposed to [l]andfill contaminants via dermal contact or ingestion or inhalation of contaminated soil or surface water." Id.
At this juncture, no definitive determination regarding causation or non-causation has taken place and causation remains vigorously contested. See Hostetler, 2017 WL 359852, at *6 ("Decisions of external regulatory agencies that sound the 'all clear,' or otherwise show no exposure or possibility of injury from any exposure, could support entrance of a Lone Pine order. Here no such 'all clear' has sounded.") (internal citation omitted) (emphasis supplied); Manning, 40 F. Supp. 3d at 867 ("Defendants have not made a clear showing of significant evidence that calls into question Plaintiffs' ability to bring forward necessary medical causation evidence. Thus, this factor . . . weighs in favor of denying the [m]otion."). Because causation is the sine qua non of Plaintiffs' claims, resolution of this issue, even in part, is likely to substantially streamline the proceedings and will preserve judicial and party resources.
The fourth factor, availability of other procedures, weighs slightly in favor of Plaintiffs. " '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 this litigation.' " Hostetler, 2017 WL 359852, at *7 (quoting In re Digitek, 264 F.R.D. at 259). Here, "Defendants have not [yet] demonstrated that existing procedural devices provided by the federal rules have either been exhausted or shown to be ineffective in accommodating the needs of this case." Manning, 40 F. Supp. 3d at 868. However, because of the sheer number of Plaintiffs and their numerous alleged injuries, traditional methods of discovery are likely to prove cumbersome and inefficient.
Finally, the fifth factor, the type of injury alleged and its cause, weighs both in favor of and against a Lone Pine order. It is likely that causation will continue to be an issue in this case through trial and will necessitate discovery, expert witness testimony, and Daubert hearings. See id. (observing that "it is likely that causation issues will be highly contentious and involve much expert testimony. Daubert hearings and motion in limine practice [rather than a Lone Pine order] are available to challenge such evidence."). On the other hand, in light of the vast number of injuries alleged by over three hundred Plaintiffs, coupled with multiple theories of causation, some mechanism for identifying which claims are likely to proceed is appropriate.
Because the relevant factors weigh only partially in favor of entering a Lone Pine order, Defendants' motion for a Lone Pine order as proposed is DENIED. However, given the number of Plaintiffs, the varied nature of their alleged injuries, and the alternative theories of causation, a mechanism to streamline discovery is required. See, e.g., Acuna, 200 F.3d at 338, 340 (noting where "[p]laintiffs alleged a range of injuries as well as durations and intensities of exposure" that it was "within the court's discretion to take steps to manage the complex and potentially very burdensome discovery that the cases would require") (footnote and citation omitted). In the absence of such a mechanism, these cases involve a vast array of claims that may not be effectively addressed through standard discovery and trial practices.
Relatedly, previous third-party Defendant the United States of America (the "USA") requested that the court adopt a Lone Pine order regarding Defendants' third-party claims against it. (Doc. 298.) The USA requested this relief in an opposition to the pending motion instead of filing its own motion. Since the USA filed its opposition, Defendants have dismissed their third-party Complaint in the Andres action (Docs. 318, 320) and withdrawn their motion for leave to file third-party Complaints in Bellafaire and Wirth. (Docs. 289-5, 319.) As a result, any request for relief from the USA, which is no longer a third-party Defendant, is DENIED AS MOOT.
Based on the foregoing, the court hereby enters a modified Lone Pine Order. Each Plaintiff shall be required to provide an affidavit that certifies his or her claims under the penalties of perjury (the "Case Management Affidavit"). The parties shall have ten (10) business days from the date of this Entry Order to propose additions and/or deletions to the proposed Case Management Affidavit included herein. After the court has approved a finalized version of the Case Management Affidavit by separate Entry Order or Text Order, Plaintiffs shall have ninety (90) days to provide the required certifications.
CONCLUSION
For the foregoing reasons, Defendants' motion for a Lone Pine order (Doc. 275) is DENIED IN PART AND GRANTED IN PART. The parties shall provide the court with proposals to the Case Management Affidavit included herein within ten (10) business days of the date of this Entry Order. When a finalized Case Management Affidavit is entered by the court, the Plaintiffs shall have ninety (90) days to provide the required certifications. Failure to do so shall be grounds for Defendants to seek dismissal of uncertified claims. SO ORDERED.
Attachment
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK ELIZABETH ANDRES, et al., Plaintiffs,
v. TOWN OF WHEATFIELD, et al., Defendants. Case No. 1:17-cv-00377-CCR ALICIA BELLAFAIRE, et al., Plaintiffs,
v. TOWN OF WHEATFIELD, et al., Defendants. Case No. 1:18-cv-00560-CCR THEODORE WIRTH, III, et al., Plaintiffs,
v. TOWN OF WHEATFIELD, et al., Defendants. Case No. 1:18-cv-01486-CCR
CASE MANAGEMENT AFFIDAVIT
I __________ of __________ hereby certify under the penalties of perjury that:
1. I have developed the following medical condition(s) which I allege were caused by at least one of the Defendants:
a. Alleged Condition One:
__________.
b. Symptoms:
__________.
c. Approximate Dates I have Experienced these Symptoms:
__________.
d. Defendant or Defendants that I Contend are Responsible:
__________.
e. Alleged Condition Two:
__________.
f. Symptoms:
__________.
g. Approximate Dates I have Experienced these Symptoms:
__________.
h. Defendant or Defendants that I Contend are Responsible:
__________.
i. Alleged Condition Three:
__________.
j. Symptoms:
__________.
k. Approximate Dates I have Experienced these Symptoms:
__________.
l. Defendant or Defendants that I Contend are Responsible:
__________.
2. Please check the answer that applies:
a. I have received a medical diagnosis or treatment for my alleged condition(s). [ ]
b. I have not consulted a medical professional regarding my alleged condition(s). [ ]
c. The condition(s) for which I received a medical diagnosis and/or treatment are as follows:
__________.
d. The date(s) which I received a medical diagnosis and/or treatment are as follows:
__________.
e. The following medical professional(s) are the source of my medical diagnosis and/or treatment:
__________.
f. Contact information of medical professional(s) [name, address, telephone number]:
__________.
3. Please check the answer that applies:
a. I have received an opinion from at least one medical professional regarding the cause of my alleged condition(s). [ ]
b. I have not received an opinion from a medical professional regarding the cause of my alleged condition(s). [ ]
4. If applicable, please describe the nature of the medical opinion that you have received regarding the cause of your alleged condition(s) and identify the contact information of the medical professional(s) who provided that opinion.
a. I have received a written medical opinion. [ ]
b. I have received a verbal medical opinion. [ ]
c. Other (please explain below). [ ]
__________.
d. Contact information of medical professional(s) [name, address, telephone number]:
__________.
5. For purposes of this lawsuit, I agree to release my medical records regarding my alleged condition(s) and have signed a release furnished by my legal counsel which I include with this Case Management Affidavit.
I hereby certify under oath that the foregoing information is true, accurate, and complete to the best of my knowledge.
__________
Signature of Plaintiff
__________
Date
__________
Printed Name of Plaintiff
Case in which Plaintiff is a claimant [please check only one]:
• Andres v. Town of Wheatfield [ ]
• Bellafaire v. Town of Wheatfield [ ]
• Wirth v. Town of Wheatfield [ ]