Marquez v. BNSF Railway Company

Filing 30

ORDER denying 9 Motion for Lone Pine Order by Magistrate Judge Michael E. Hegarty on 08/08/2017. (mdave, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-01153-CMA-MEH
MARY MARQUEZ, individually and as the personal representative of the Estate of Robert L.
Balerio,
Plaintiff,
v.
BNSF RAILWAY COMPANY,
Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
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.
BACKGROUND
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.
LEGAL STANDARD
Lone Pine orders “are pre-discovery orders designed to handle the complex issues and

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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

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Lone Pine orders derive their name from a New Jersey case: Lore v. Lone Pine Corp., No.
L-33606-85, 1986 WL 637507 (N.J. Super. Ct. Nov. 18, 1986).
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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).
ANALYSIS
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.”
McManaway, 265 F.R.D. at 388. Here, the parties have not engaged in discovery, and they agreed
to stay all future discovery pending a ruling on the present motion. ECF Nos. 24, 27. Therefore,
the first factor does not favor a Lone Pine order.
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Although BNSF cites cases where courts have issued pre-discovery Lone Pine orders, as
BNSF recognizes, each of these cases were likely to involve complex discovery with multiple
parties. See Reply in Support of Mot. for Lone Pine Order 4, ECF No. 29 (“Discovery orders are
meant to streamline the often-times complex discovery in such cases.”). For example, in Acuna, a
case involving over one thousand plaintiffs, the court approved the use of a Lone Pine order to
“handle the complex issues and potential burdens on defendants . . . .” 200 F.3d at 340–41.
Similarly, in Ashford v. Hercules, Inc., a case where forty-nine plaintiffs alleged the defendant
contaminated their properties, the court issued a Lone Pine order, because “the issues presented in
this case are expansive, complex, and will require considerable expense and effort to litigate.”
2:15cv27-KS-MTP, 2015 WL 6118387, at *3–4 (S.D. Miss. Oct. 16, 2015). In contrast, this case,
which contains only one plaintiff and one defendant, primarily involves one issue—whether Mr.
Balerio’s exposure to various substances during his employment with the railway caused his
esophageal cancer. Thus, the cases cited by BNSF are not persuasive.
BNSF also contends that entry of a Lone Pine order at this stage is proper, because it would
require only that Ms. Marquez’s counsel produce information that Rule 11 demanded she have prior
to filing this case. Mot. for Lone Pine Order 9. The Court disagrees. BNSF seeks an order
requiring Ms. Marquez to provide, inter alia, an expert affidavit opining that each of the toxic
substances listed in the Complaint caused Mr. Balerio’s cancer. Id. at 2. As aptly stated by the court
in Manning, “Rule 11 does not require conclusive proof of causation prior to filing suit.” 40 F.
Supp. 3d at 865.
Regarding the second factor, the Court finds that the case management needs in this litigation
do not favor entry of a Lone Pine order. Courts have generally issued such orders because of the

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complex discovery and case management needs that exist in cases with multiple plaintiffs and
defendants. Abner v. Hercules, Inc., No. 2:14cv63-KS-MTP, 2014 WL 5817542, at *3 (S.D. Miss.
Nov. 10, 2014) (finding that the case management needs favored entry of a Lone Pine order, because
the proceeding involved “more than 400 Plaintiffs who claim that constituents from [the defendant’s
work site] contaminated more than 500 parcels of real estate.”); Avila v. Willits Envtl. Remediation
Tr., 633 F.3d 828, 834 (9th Cir. 2011) (holding that the district court did not abuse its discretion in
issuing a Lone Pine order, because the case had been pending for five years and involved numerous
plaintiffs). In Acuna, the court held that a Lone Pine order was proper in a case with “approximately
one thousand six-hundred plaintiffs suing over one hundred defendants for a range of injuries
occurring over a span of up to forty years.” 200 F.3d at 340. Conversely, in Ramirez v. E.I. Dupont
De Nemours & Co., a case involving “a single plaintiff and single defendant,” the court held that a
Lone Pine order was “patently unwarranted.” No. 8:09-cv-321-T-33TBM, 2010 WL 144866, at *3
(M.D. Fla. Jan. 8, 2010). Similarly, the present case involves one plaintiff suing one defendant for
negligently causing the decedent’s esophageal cancer. As such, the Court does not perceive peculiar
case management or discovery needs.
BNSF’s arguments to the contrary are unavailing. BNSF first contends this case presents
abnormal case management needs, because Ms. Marquez’s counsel “does not know what substances
his plaintiff-decedent was exposed to, when, where, how, and for how long.” Reply in Support of
Mot. for Lone Pine Order 6. As the Court held in its Order on BNSF’s Motion for a More Definite
Statement, the Complaint provides sufficient detail on Mr. Balerio’s exposure to the listed
substances. ECF No. 28, at 5. Second, BNSF asserts this case is in essence a mass tort action
involving multiple plaintiffs, because Ms. Marquez’s counsel has filed many other similar cases

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against BNSF. Mot. for Lone Pine Order 11. However, the fact that many other plaintiffs are suing
BNSF for similar conduct does not enlarge the case management needs of this litigation. Indeed,
because Ms. Marquez’s counsel filed the cases separately, BNSF will not be forced to engage in the
burdensome task of sorting through the plaintiffs to discern the injury that each plaintiff suffered and
the time frame during which each plaintiff suffered it. The individual complaints contain this
information. See Compl. ¶¶ 4–6. Accordingly, this litigation does not involve inherently complex
or difficult case management needs.
The third factor also does not weigh in favor of issuing a Lone Pine order. “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. Here, neither party
references agency decisions impacting the merits of this case.
The fourth factor—the availability and use of other procedures—weighs against granting
BNSF’s motion. “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.” In re
Digitek Prod. Liab. Litig., 264 F.R.D. at 259. Here, the discovery provided for in the Federal Rules
of Civil Procedure along with BNSF’s ability to seek summary judgment are sufficient to alleviate
any concerns that BNSF will be subjected to overly burdensome discovery or that Ms. Marquez will
be permitted to prosecute a frivolous case. If at any point BNSF believes that specific discovery is
overly burdensome, it may seek to limit the request as not proportional to the needs of the case. See
Fed. R. Civ. P. 26(b)(1). Furthermore, if Ms. Marquez cannot obtain evidence supporting her
allegation that Mr. Balerio’s exposure to specific substances during his employment caused his

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cancer, BNSF may move for summary judgment at that time. To require Ms. Marquez to produce
the requested evidence at this stage of the proceeding would run afoul of these established
procedural mechanisms. See Adinolfe v. United Techs. Corp., 768 F.3d 1161, 1168 (11th Cir. 2014)
(stating that 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”).
Finally, the Court finds that the fifth factor—the type of injury and its cause—also favors
denying BNSF’s motion. It is likely that both sides will seek to present expert testimony opining
that the listed substances did or did not cause Mr. Balerio’s esophageal cancer. As the court stated
in Manning, “Daubert hearings and motion in limine practice are available to challenge such
evidence.” 40 F. Supp. 3d at 868 (holding that the fifth factor weighed against a Lone Pine order,
because “it is likely that causation will be highly contentious and involve much expert testimony”);
In re Digitek Prod. Liab. Litig., 264 F.R.D. at 259 (holding that entry of a Lone Pine order was
improper because of the likely need for expert testimony to establish causation).
CONCLUSION
In sum, this case does not present the type of extraordinary circumstances that warrant
imposition of a Lone Pine order. As such, the Court will not exercise its discretion to require Ms.
Marquez to produce pre-discovery proof of her claims, and BNSF’s Motion for a Lone Pine Order
[filed July 12, 2017; ECF No. 9] is denied.

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Entered and dated at Denver, Colorado, this 8th day of August, 2017.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

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