Multidistrict litigation (MDL) has been described both as a “just and efficient” method of consolidating lawsuits and a judicial hell-hole akin to “the third level of Dante’s inferno.” While its normative value likely falls somewhere in the middle, it is no secret that multidistrict litigation involves “unorthodox” civil procedure. Judges attempting to wrangle the “Wild West” of multidistrict litigation may employ a wide variety of procedural weapons to tackle complex litigation.

Lone Pine orders, which require plaintiffs in mass-tort litigation to “supply prima facie evidence of injury, exposure, and causation” provide an example of this kind of creative judicial procedure. These orders supposedly expedite and narrow complex litigation by filtering out unmeritorious claims that cannot meet this preliminary evidentiary requirement. But an MDL judge’s procedural armory does not come with unfettered discretion. In In Re: National Prescription Opiate Litigation, the Sixth Circuit rejected the district court’s attempt to create a “negotiation class,” a novel procedural device requiring potential class members to opt out before the defendants gave a final settlement offer. The Sixth Circuit’s decision relied heavily on a strict reading of the text of Rule 23 of the Federal Rules of Civil Procedure. Because Rule 23 “does not mention certification for purposes of ‘negotiation,’” the Sixth Circuit found that the district court exceeded its discretion in fashioning this novel procedural vehicle. By relying strictly on the text of the Federal Rules of Civil Procedure, the Sixth Circuit’s approach threatens the existence of other case management tools. Lone Pine orders now occupy a precarious place in the judicial management arsenal.

I. History of Lone Pine Orders

Lone Pine orders come from a late-1980’s New Jersey case predictably bearing its name. There, a trial court judge issued an order requiring plaintiffs in a toxic tort case to proffer documentation of their injuries and the basis for their causation claims. The plaintiffs could not produce such evidence, and the court completely dismissed their claims. But Lone Pine orders did not remain a relic of the 80s. Instead, they are now a “popular feature of the mass-tort landscape.” Courts have noted that Lone Pine orders are useful in “defining and narrowing issues, streamlining discovery, weeding out unmeritorious claims, and conserving judicial resources.”

Despite their prominence, the widespread use of Lone Pine orders remains controversial. The defense bar heralds Lone Pine orders as a necessary procedural protection against the proliferation of non-meritorious toxic tort cases. Others argue that requiring toxic tort victims to produce this information—which often requires expensive expert reports—at such an early stage of litigation may “impose significant burdens on plaintiffs.” Lone Pine orders are especially prominent in MDLs where judges handle incredibly complex and dynamic lawsuits, sometimes involving thousands of parties. The normative debate regarding the desirability of Lone Pine orders reaches a fever pitch in discussions about multidistrict litigation because some consider MDLs a “breeding ground” for dubious filings. MDLs attract criticism for offering a low entry-cost for plaintiffs and incentivizing sophisticated plaintiffs’ lawyers to recruit the most amount of claimants for higher settlement values.

Ostensibly, the authority to issue Lone Pine orders comes from Rule 16(c)(2)(L), which broadly allows courts to adopt “special procedures for managing potentially difficult or protracted actions that may involve complex issues, [and] multiple parties.” But “no statute, Federal Rule of Civil Procedure, or Federal Rule of Evidence expressly permits – or even contemplates – Lone Pine orders.” However, scholars such as Professor Nora Engstrom have noted that the “legality of these orders isn’t much in doubt.” In fact, “no federal appellate court” has ever ruled that “trial courts lack the authority” to issue Lone Pine orders.

II. The Future of Lone Pine After In Re: National Prescription Opiate Litigation

In Re: National Prescription Opiate Litigation may provide a glimmer of hope for those seeking to challenge judge-made procedural tools like Lone Pine orders. The case concerned the overwhelming amount of litigation stemming from the opioid crisis. Thousands of individuals, cities, and counties sued opioid manufacturers, distributors, and retailers alleging the entities misled medical professionals into prescribing opiates. These actions, according to the plaintiffs, systemically killed thousands from addiction.

The litigation was a civil procedure nightmare (or dream, depending on who you ask), involving hundreds of parties, thousands of claims, and dozens of failed settlement attempts. Judge Polster, the district judge assigned to the case, saw the need to take quick action because individuals suffering from addiction continued “to die as litigation lingered.” To expedite the proceeding, Judge Polster certified a “negotiation class,” a first-of-its-kind class action that required members to opt out before an official settlement offer. The certification procedure minimized the risk that class members “holding large claims would opt out of the class post-settlement” thus encouraging defendants to settle. Judge Polster certified this class over dozens of objectors, who then appealed the certification decision to the Sixth Circuit.

The Sixth Circuit rejected Judge Polster’s novel negotiation class. Judge Clay, writing for the panel, cautioned district courts against inventing procedural management tools out of whole cloth. Citing to Walmart v. Dukes, the opinion notes that “district courts do not have the liberty to invent a procedure with ‘no basis in the Rule’s text,’ even absent language expressly prohibiting it.” Furthermore, the Sixth Circuit nodded approvingly at the language in Amchem Products v. Windsor indicating that “the text of a rule . . . limits judicial inventiveness.” Forgoing the explicit Rule 23 classes in favor of the novel negotiation class, according to the panel, may “abrogate the substantive rights of class members to pursue their claims independently” before knowing the settlement amount. The Sixth Circuit’s holding is clear: “a new form of class action, wholly untethered from Rule 23, may not be employed by a court.”

Much like the “negotiation class” rejected by the Sixth Circuit, Lone Pine orders have no express textual support in the Federal Rules of Civil Procedure. While Rule 16(c)(2)(L) broadly allows judges to fashion “special procedures” to manage complex litigation, there are no specific authorizations for any given tool. Indeed, many judges report that “the typical MDL management goes far beyond the confines of Rule 16.” One judge colorfully described MDL case management as “Rule 16 on steroids.” Some scholars have noted that Lone Pine orders are part of a litany of “invented” procedures that “you will never find in the Federal Rules.” There seemed to be no limit to Rule 16 in MDLs.

But In Re: National Prescription Opiate Litigation stands for the opposite proposition. According to the Sixth Circuit, there are limits to case management, and the boundary lies at the text of the rule itself. Judge Moore’s dissent critiqued the panel’s opinion as running contrary to the inertia of other MDL case management procedures. Because multidistrict litigation is “unorthodox,” Judge Moore urged courts to deploy “liberal constructions” of the Federal Rules of Civil Procedure to account for the dynamic nature of complex litigation.

One could argue that Lone Pine orders are distinguishable from the failed “negotiation class” because Rule 16 provides broader authorization for innovation than Rule 23. After all, Rule 16 allows district courts to adopt “special procedures for managing potentially difficult” litigation. But the Sixth Circuit rejected this precise logic. The plaintiffs in In Re: National Prescription Opiate Litigation contended that Rule 23 contained “open-ended wording.” They pointed to the text of Rule 23(c)(4), which indicates that a court may certify a class for purposes other than trial or settlement. These arguments failed to persuade the panel. The Sixth Circuit was concerned not just with the fact of novelty, but with the way that some newfound procedural devices might “abrogate the substantive rights of class members.”

Lone Pine orders pose an even greater threat to plaintiffs’ substantive rights than the rejected negotiation class. In some cases, the entry of a Lone Pine order may cause dismissal of every claim. Professor Engstrom contends that Lone Pine orders might even conflict with some express textual provisions in the Federal Rules of Civil Procedure, such as Rule 56. For example, Lone Pine orders may function as a pseudo-summary judgment motion with none of the “protections embedded within Rule 56.” Lone Pine orders “relieve defendants” of their traditional burdens as a moving party under Rule 56 while simultaneously allowing dismissal of claims before discovery. This imposes a high hurdle for plaintiffs who may have relied on broad discovery tools to show the very evidence of causation the Lone Pine order demands. Most notably, appellate courts do not review these decisions de novo, but instead under the much more deferential abuse of discretion standard. That means appellate courts “will rarely—if ever—overturn” Lone Pine orders.

Lone Pine orders are “out of step” with other provisions in the Federal Rules of Civil Procedure. For example, Lone Pine orders offer a backdoor to Rule 11 sanctions. Like Rule 11 sanctions, these orders attack seemingly frivolous claims. But Lone Pine orders demand plaintiffs proffer expensive expert reports and prima facie evidence of their injury, whereas Rule 11 “merely requires that lawyers certify” that there is some “evidentiary support” for a claim.

The fate of Lone Pine orders is now uncertain with the Sixth Circuit’s strictly textualist approach to managing complex litigation. This may have profound implications for multidistrict litigation. Those that believe multidistrict litigation breeds meritless claims praise Lone Pine orders, and as judges survey the landscape of creative judicial management tools, Lone Pine orders may become more prominent. However, the lack of express statutory authorization for such orders may make them vulnerable to the Sixth Circuit’s reasoning in In Re: National Prescription Opiate Litigation. The fact that Lone Pine orders are not just “untethered” from express provisions of the Federal Rules, but may actually be “out of step” with them, magnifies the issue. Only time will tell the true fate of the Lone Pine order. Until then, Lone Pine orders will remain a cast member in the “Wild West” of multidistrict litigation.

Andrew Barron: Executive Editor for the California Law Review and member of Berkeley Law Class of 2021.