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Marquez v. BNSF Railway Co.

United States District Court, D. Colorado

August 8, 2017

MARY MARQUEZ, individually and as the personal representative of the Estate of Robert L. Balerio, Plaintiff,


          Michael E. Hegarty, United States Magistrate Judge.

         Defendant 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.


         Ms. 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.

         BNSF 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.

         Shortly 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 5.

         Ms. 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.


         Lone 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.[1] 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 . . . .”).

         However, 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 factors:

(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).


         Because 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 ...

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