United States District Court, D. Colorado
MARY MARQUEZ, individually and as the personal representative of the Estate of Robert L. Balerio, Plaintiff,
BNSF RAILWAY COMPANY, Defendant.
Michael E. Hegarty, United States Magistrate Judge.
BNSF Railway Company seeks an order requiring Plaintiff Mary
Marquez to “furnish fundamental evidence to
substantiate essential elements of [her] claim, such as
causation of the plaintiff-decedent's injuries . . .
.” Mot. for Lone Pine Order 2, ECF No. 9. The
Court holds that this case does not warrant the extraordinary
procedure of requiring Ms. Marquez to produce substantive
causation evidence pre-discovery. Accordingly, the Court
denies BNSF's Motion for Lone Pine Order.
Marquez initiated this action on May 9, 2017, individually
and on behalf of her deceased husband, Robert L. Balerio.
Compl., ECF No. 1. Ms. Marquez claims that Mr. Balerio's
exposure to at least nine toxic chemicals during his
employment with BNSF's predecessor, Colorado and Southern
Railway, caused him to develop esophageal cancer.
Id. at ¶¶ 4-7. According to Ms. Marquez,
Mr. Balerio was exposed to these chemicals because of the
railway's negligence. Id. at ¶¶ 8-9.
responded to the Complaint by filing a Motion for a More
Definite Statement, which the Court denied on July 27, 2017.
Order Denying Motion for a More Definite Statement, ECF No
28. The Court held that Ms. Marquez's Complaint, which
asserts who was involved in the alleged toxic exposure, what
caused the exposure, the time frame for the exposure, and how
the exposure occurred, contained sufficient information for
BNSF to respond. Id. at 5.
after filing its Motion for a More Definite Statement, BNSF
filed the present Motion for a Lone Pine Order, ECF
No. 9. BNSF contends the Court should require Ms. Marquez to
produce affidavits from physicians specifying the particular
toxic substances that caused Mr. Balerio's cancer and the
scientific basis for the physicians' opinions.
Id. at 2. Additionally, BNSF would like the
affidavits to state Mr. Balerio's “related
diseases” and the manner in which Mr. Balerio was
exposed to each substance. Id. According to BNSF,
this is proper, because without such an order, Ms.
Marquez's boilerplate Complaint would subject BNSF to
overly burdensome and prejudicial discovery. Id. at
Marquez opposes the issuance of a Lone Pine Order.
Resp. to Mot. for Lone Pine Order, ECF No. 22.
According to Ms. Marquez, such orders are inappropriate
where, as here, the issues are relatively straight forward
and the parties have not engaged in discovery. Id.
at 2-7. Thus, Ms. Marquez asserts that the entry of such an
extraordinary order in this case would “serve as an
improper and untimely substitute for summary judgment
motions.” Id. at 10. BNSF filed a reply brief
on July 27, 2017. Reply in Support of Mot. for Lone Pine
Order, ECF No. 29.
Pine orders “are pre-discovery orders designed to
handle the complex issues and potential burdens on defendants
and the court in mass tort litigation by requiring plaintiffs
to produce some evidence to support a credible
claim. Steering Comm. v. Exxon Mobil
Corp., 461 F.3d 598, 604 n.2 (5th Cir. 2006); Acuna
v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir.
2000) (approving the entry of a Lone Pine order
“to manage the complex and potentially very burdensome
discovery that the case would require”). Neither the
Tenth Circuit nor any district court within this Circuit have
addressed the propriety of issuing Lone Pine orders.
Judges in other circuits have recognized that courts have
authority to issue Lone Pine orders pursuant to
Federal Rule of Civil Procedure 16(c)(2)(L), which permits a
court 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.” Arias v. DynCorp,
752 F.3d 1011, 1014 (D.C. Cir. 2014) (“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.” (quoting Acuna, 200
F.3d at 340)); McManaway v. KBR, Inc., 265 F.R.D.
384, 385 (S.D. Ind. 2009) (“Lone Pine orders
are permitted by Rule 16(c)(2)(L) of the Federal Rules of
Civil Procedure . . . .”).
courts have also noted the extraordinary nature of Lone
Pine orders and have generally refused to issue them
except in litigation with complex and unique discovery
issues. See Russell v. Chesapeake Appalachia,
L.L.C., 305 F.R.D. 78, 85 (M.D. Pa. 2015) (“There
is no need for the extraordinary imposition of a Lone
Pine order at this juncture.”); Nolan v. Exxon
Mobil Corp., No. 13-439-JJB-EWD, 2016 WL 1213231, at *11
(M.D. La. Mar. 23, 2016) (“This court agrees with
Plaintiffs that entry of a Lone Pine order is an
‘extraordinary procedure' that should be used
‘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.'” (quoting In re Digitek
Prod. Liab. Litig., 264 F.R.D. 249, 259 (S.D. W.Va.
2010))). When determining whether to issue a Lone
Pine order, courts typically consider the following five
(1) the posture of the action, (2) the peculiar case
management needs presented, (3) external agency decisions
impacting the merits of the case, (4) the availability and
use of other procedures explicitly sanctioned by federal rule
or statute, and (5) the type of injury alleged by plaintiffs
and its cause.
In re Digitek Prod. Liab. Litig., 264 F.R.D. at 256;
Manning v. Arch Wood Prot., 40 F.Supp.3d 861, 863
(E.D. Ky. 2014) (denying a motion for Lone Pine
order based on the preceding five factors).
none of the factors articulated above favor the entry of a
Lone Pine order, the Court declines to issue one in
this case. Regarding the posture of the action, “courts
have been reluctant to grant Lone Pine motions
before any meaningful discovery has been conducted.”
Manning, 40 F.Supp.3d at 864; Adkisson v. Jacobs
Eng'g Grp., Inc., No. 3:13-CV-505-TAV-HBG, 2016 WL
4079531, at *4 (E.D. Tenn. July 29, 2016)
(“[G]enerally, Lone Pine orders are disfavored in the
early stages of the proceedings where no meaningful discovery
has taken place.”). Indeed, one federal court went as
far as to state 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.” Mc ...