Recently, the United States District Court for the Eastern District of Kentucky approved a Lone Pine case management order in a class action lawsuit seeking to recover personal injury and property damages allegedly caused by environmental contamination. Modern Holdings, LLC et. al v. Corning Inc., 2015 WL 6482374, (E.D. Ky. Oct. 27, 2015). Lone Pine orders often require toxic tort plaintiffs to substantiate key aspects of their case, such as the details of the alleged physical injury or diminution in property value and their theory of causation that links the defendant’s conduct to the alleged injury.1
In Modern Holdings, the class plaintiffs sought to recover property and personal injury damages alleged from nearly 50 years of environmental contamination at a glass manufacturing plant. After pending for nearly two years with several procedural motions, including amendments to the complaint, this case had yet to complete the discovery stage. Following the issuance of a scheduling order that set dates for the case through trial, the defendants sought, and the magistrate judge granted, a Lone Pine order that limited discovery until the plaintiffs produced evidence that established the validity of their claims.
Specifically, the order required each plaintiff claiming personal injuries to submit an affidavit explaining:
- The specific illness sustained.
- The date of diagnosis and information about the medical provider making the diagnosis.
- The toxic chemical that allegedly caused the illness, with information about the manner, pathway, dates, duration and dose of exposure.
- The scientific literature supporting a link between the plaintiff's illness and the described chemical exposure.
The order also required an affidavit from plaintiffs seeking property damages that explained:
- The property address for the property alleged to have declined in value.
- The property address for the property alleged to have been contaminated, including details about where and when the contaminant was located.
- The degree of alleged diminution in property value.
Modern Holdings, 2015 WL 6482374, at *4.
The plaintiffs asked the district court judge to throw out the magistrate’s order; however, after a thorough review of the plaintiffs’ arguments, the district court affirmed the magistrate’s order.
The district court’s opinion demonstrates why a Lone Pine order is an appropriate case management tool and distinguishes cases like Modern Holdings from other environmental damages lawsuits where magistrate judges have denied the use of Lone Pine orders. See, e.g., Fred Manning, et al v. Arch Wood Protection, Inc. et al., 40 F. Supp. 3rd 861 (E.D. Ky., 2014).
This case now places Kentucky in line with other jurisdictions that utilize Lone Pine orders as an effective case management tool, particularly in multi-party environmental claims lawsuits.
1Lone Pine orders derive their name from the unpublished 1986 decision of the Superior Court of New Jersey in Lore v. Lone Pine Corp., 1986 WL 637507.