Abner et al v. Hercules, Inc. et al

Filing 35

ORDER granting 18 Motion for Entry of a Lone Pine Case Management Order. Signed by Magistrate Judge Michael T. Parker on November 10, 2014. (ES)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
DOROTHY ABNER, et al.

PLAINTIFFS

v.

CIVIL ACTION NO. 2:14cv63-KS-MTP

HERCULES, INC., et al.

DEFENDANTS
OPINION AND ORDER

THIS MATTER is before the Court on Defendant’s Motion for Entry of a Lone Pine1 Case
Management Order and following a hearing to consider the Motion and the Plaintiff’s Opposition
thereto, as well as the Plaintiff’s proposed Case Management Order. After considering the Motion,
the submissions of the parties and the arguments made at the hearing, the Court finds that
Defendant’s Motion [18] for Entry of a Lone Pine Case Management Order should be GRANTED.2
BACKGROUND
This matter arises from alleged contaminants that some 400 Plaintiffs claim migrated from
a site owned and operated by Defendant Hercules, Inc., onto Plaintiffs’ properties located in various
areas near the site and on some properties some distance from the site. See generally Amended
Complaint [12]. Plaintiffs allege that the contamination continues to migrate into the area through
several pathways, although some Plaintiffs’ properties are located a considerable distance away from
the Hercules site, or for that matter, any other Plaintiff. Id. at 3; Exhibit A - Map [19-1].
This is not the first suit brought against Hercules for alleged contamination of the

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Lore v. Lone Pine Corp., 1986 WL 637507 (N.J. Sup. Ct. Law Div. Nov. 18, 1986).

2

Though the Court grants the Motion, the case management order that will issue is a
modified version of the one submitted by Defendant.
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surrounding area of the site. Blackard v. Hercules, Inc., filed in this Court on October 2, 2013,
involved similar issues. In Blackard, eleven Plaintiffs whose properties immediately abut the
Hercules site brought suit with allegation similar allegations to those in the case at hand.3 Before the
case settled, extensive discovery was completed, including depositions and production of Hercules
documents going back to 1923. The city of Hattiesburg has also filed suit against Hercules with
similar allegations.4
Defendants moved for entry of a Lone Pine case management order in this case on August
19, 2014.5 See Motion [18]. Specifically, Defendant requests that the Plaintiffs, for each of their
properties, should be required to submit expert affidavits demonstrating that: (1) the property and
the alleged migration pathway have been sampled by a scientifically reliable method; (2) the
samples have been analyzed by a qualified laboratory; (3) lab analysis detected constituents that
have been detected on the Hercules site; and (4) lab analysis confirmed the existence of a migration
pathway between the site and the property. See Memorandum in Support of Motion [19] at 6-7.
Defendants further requests that only after this information has been submitted and considered
should the parties proceed with full discovery. Defendant argues that Plaintiff landowners should
first demonstrate that their properties are contaminated or damaged before other expensive discovery
is conducted and that a Lone Pine order will ensure that only Plaintiffs with arguable claims remain
before the Court.
Plaintiffs made their own motion for a case management order on September 5, 2014. See

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Blackard, et al. v. Hercules, Inc. et al., 2:12cv175-KS-MTP, Complaint [1].

4

City of Hattiesburg v. Hercules, Inc. et al., 2:13cv208-KS-MTP.

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The nature of a Lone Pine order will discussed more fully infra.
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Motion [28]. Plaintiffs propose a phased approach in which the case would proceed on a limited
number of claims. Specifically, the Plaintiffs propose the following: (1) Each Plaintiff shall provide
a “worksheet” regarding the property for which the claims are being asserted, including the
ownership interest, tax and mortgage information, a description and time line of significant
improvements to the property, and other similar information; (2) Each Plaintiff shall provide a good
faith statement identifying the contaminant transport pathway that are alleged to have transported
contaminants from the Hercules site to the property at issue; (3) Between twenty and thirty Plaintiffs
will be selected from each identified contaminant pathway to create a “discovery pool” on which
full discovery will be conducted, and those claims not selected will be stayed or administratively
closed; (4) All defendant-specific discovery in this case be consolidated with discovery in the
pending case regarding pollution from the Hercules site filed by the City of Hattiesburg;6 (5) An
initial trial will commence to adjudicate the discovery pool claims and resolve common issues, with
the remaining claims being resolved in mediation after the trial. See Memorandum in Support of
Plaintiff’s Motion for Entry of Case Management Order [29] at 6-11.
On October 17, 2014, the Court conducted a hearing to hear arguments regarding both
Motions [18] and [28]. See Order [30].
APPLICABLE LAW
Lone Pine orders derive from a 1986 New Jersey Superior Court decision, where the court
entered a pretrial order that required the plaintiffs to provide facts in support of their claims through
expert reports. Lore v. Lone Pine Corp., 1986 WL 637507 (N.J. Sup. Ct. Law Div. Nov. 18, 1986).
The United States Court of Appeals for Fifth Circuit has noted that “Lone Pine orders are designed

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City of Hattiesburg v. Hercules, et al., 2:13cv208-KS-MTP.
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to handle the complex issues and potential burdens of defendants and the court in mass tort
litigation.” Acuna v. Brown & Root Inc., 200 F.3d 335, 340 (5th Cir. 2000). While no federal rule
expressly authorizes Lone Pine orders, multiple courts have interpreted Federal Rule of Civil
Procedure 16 to confer such authority to courts in complex litigation. See McManaway v. KBR, Inc.,
265 F.R.D. 384, 384 (S.D. Ind. 2009) (“Lone Pine orders are permitted by Rule 16(c)(2)(L) of the
Federal Rules of Civil Procedure which provides that a court may take several actions during a
pretrial conference, including ‘adopting special procedures for managing potentially difficult or
protracted actions that may involve complex issues, multiple parties, difficult legal questions, or
usual proof problems.’”).
However, courts have also noted that a Lone Pine order is not appropriate in every case or
suitable at every stage of litigation. See, e.g., In re Vioxx Prod. Liab. Litig., 557 F. Supp. 2d 741, 744
(E.D. La. 2008).The Plaintiffs contend that this Court should focus on a number of factors in its
determination of whether to enter a Lone Pine Order: (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. See, e.g., In re Digitek Prod. Liab. Litig.,
264 F.R.D. 249, 256 (S.D.W. Va. 2010); Manning v. Arch Wood Prot. Inc., 2014 WL 4198294 at
*2 (E.D. Ky. Aug. 21, 2014); In re Fosamax, 2012 WL 5877418 at *2 (S.D.N.Y. Nov. 20, 2012).
The United States Courts of Appeals for the Fifth Circuit does not require, nor does it prohibit, lower
courts from considering the five-part test referenced by the Plaintiffs, but the Court finds that these
factors provide a useful and appropriate framework for addressing the Motion [18]. See Acuna, 200
F.3d at 340.

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ANALYSIS
Upon consideration of the factors listed above and addressed below, the Court finds that
entering a Lone Pine order is appropriate at this time.
Posture of the Action
Plaintiffs contend that this factors weighs against the entry of a Lone Pine Order because this
lawsuit was only recently filed and discovery has not yet commenced. See Response [27] at 3.
Relying on several recent district court decisions that have noted a reluctance to grant Lone Pine
order before any meaningful discovery has been conducted, Plaintiffs argue that such measures are
appropriate only at later stages of litigation. See Manning 2014 WL 4198294 at *2. For instance,
Plaintiffs cite In re Fosamax, where a Lone Pine order was entered after six years of litigation and
after “extensive” and “targeted” fact discovery had been conducted. 2012 WL 5877418 at *2.
Additionally, Plaintiffs cite Avila v. Willits Envtl. Remediation Trust, affirming the issuance of a
Lone Pine order after five years of litigation. 633 F.3d 828, 834 (9th Cir. 2011).
The Court disagrees with Plaintiffs insofar as they claim they have not had the time and
resources necessary to develop their case, as the parties entered into this matter armed with
significant history, information and documentation. The Blackard case, which concerned very
similar allegations of contamination by property owners surrounding the Hercules site, prompted
an enormous amount of discovery, with Defendant Hercules providing voluminous records from as
far back as the 1920s. These documents illustrated precisely which chemicals were produced or
utilized on the site as well as the time period in which they were produced. The Defendant has
agreed to a provision in the case management order stating that discovery conducted in Blackard

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will be treated as if it were conducted in this case.7 See Memorandum in Support of Defendants’
Motion for Entry of Lone Pine Case Management Order [19] at 6 n.1. Furthermore, Defendants
agree and will be ordered to make available to the Plaintiffs the results of any ongoing testing of the
area. See Rebuttal [31] at 7 n. 21. Accordingly, Plaintiffs have the benefit of this previous discovery
and the ongoing test results. For the reasons above, the Court finds that the posture of the present
action weighs in favor of the issuance of a Lone Pine order.
The Peculiar Case Management Needs Presented
In this matter, there are more than 400 Plaintiffs who claim that constituents from the
Hercules site have contaminated more than 500 parcels of real estate. See Amended Complaint [12].
The Plaintiffs seek damages for the alleged diminution in the values of those properties and mental
anguish. Id. at 22-23. The pleadings offer little, if any, information as to the type and amount of
contaminants founds on these particular parcels of land, the extent to which the property values have
been diminished, or specified theories of how the contaminants traveled from the Hercules site to
the present alleged locations. The Plaintiff’s characterize the entry of a Lone Pine order in this case
as “grossly unfair” and unduly expensive, but the Court would note that both parties have concerns
regarding the time and expense the litigation of the case will require.8 The Defendant likewise has

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Plaintiffs contend that the present action is dissimilar from Blackard, in that latter
involved far more limited contaminant transport pathways than those at issues here. While the
Court notes that the cases are not identical and that further discovery might be necessary to
develop the Plaintiffs’ case, the fact remains that Plaintiffs bear the burden of proof in the first
instance, and are required to possess some information regarding their injuries and possible
theories of causation before filing suit. See discussion infra.
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Defendants assert that they intend to depose and propound written discovery to the more
than 400 Plaintiffs, in additional to any medical professionals who have treated the Plaintiffs for
their alleged mental anguish. Defendants also contend they will conduct their own testing of the
Plaintiffs’ properties for site constituents, and that they will likely pursue third-party discovery
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concerns over conducting expensive discovery of properties that have no indication of
contamination.
The Federal Rules of Civil Procedure require that the pleadings contain “factual contentions
[that] have evidentiary support or, if specifically so identified, will likely have evidentiary support.”
See FED. R. CIV. PRO. 11(b)(3). Furthermore, the Fifth Circuit has held that “[e]ach Plaintiff should
have at least some information regarding the nature of his injuries, the circumstances under which
he could have been exposed to harmful substances, and the basis for believing that the named
defendants were responsible for his injuries.”Acuna, 200 F.3d at 340. To date, Plaintiffs have
presented no evidence beyond the proximity of the properties to the Hercules site and limited reports
regarding the possible locations of contaminants. And as the Defendant correctly notes, the Plaintiffs
must eventually test their properties and the alleged migration pathways, thus the issue is primarily
one of timing. See Memorandum in Support of Defendants’ Motion [19] at 6. It is within the Court’s
discretion to take steps to manage the complex and potentially burdensome discovery that this case
will most certainly require. Acuna, 200 F.3d at 340. Thus, the Court finds that this factor also weighs
in favor of the entry of a Lone Pine order.
External Agency Decisions Impacting the Merits of the Case
The third factor involves looking to external agency decisions to see if there are any that
impact the merits of the case. In several toxic tort cases, independent agencies have released
information that can act as proof or the absence of proof of the claims alleged. See Manning, 2014
WL 4198294 at *5; McManaway, 265 F.R.D. at 385 (holding that a Lone Pine order should issue

to identify other sources of any alleged contamination. See Memorandum in Support of
Defendants’ Motion for Entry of Lone Pine Case Management Order [19] at 1.
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only after the defendant has called into the question the plaintiffs’ ability to bring forward necessary
causation and other scientific information).
At the hearing, the Plaintiff submitted a map showing all site-related detections of
contaminants found by any tests conducted thus far, including tests conducted by the EPA. See All
Site Related Detections, Exhibit P-2 [32-2]. The data does reflect possible contamination in
locations that may coincide with a small number of the Plaintiffs’ properties at issue. Thus, the
testing conducted thus far does not necessarily prove or disprove the claims of most Plaintiffs, and
this examination factor provides little guidance to the Court. In any event, the order entered in this
case will require Defendant to provide any test results they receive, including those from outside
agencies, to the Plaintiffs promptly upon receipt.
Availability and Use of Other Procedures
Multiple courts have found that Lone Pine orders are appropriate only where other available
procedural devices such as summary judgment, motions to dismiss, motions for sanctions and other
similar rules are insufficient to address the issues at hand. See Hagy v. Equitable Prod. Co., 2012
WL 713778 at *4 (S.D. W. Va. Mar. 5, 2012); In re Digitek, 264 F.R.D. at 259. Plaintiffs assert that
their proposed case management order will allow the case to proceed pursuant to standard
procedural mechanisms. Specifically, the Plaintiffs argue that a mutual selection of test plaintiffs
along each transport pathway will generate the maximum amount of information and conclusively
resolve a multitude of common issues. For the reasons set forth below, the Court disagrees.
First, the Court notes a map plotting the locations of all properties at issue reflects that
several Plaintiffs’ properties lie a considerable distance from any other Plaintiff property. See
Exhibit A - Map [19-1]. Thus, the map presented shows outliers that cannot be reasonably traced

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to any alleged pathway. Moreover, the parties do not fully agree to the existence, much less the
location, of such pathways, which poses a considerable stumbling block to the parties’ selection of
test Plaintiffs. Accordingly, Plaintiffs’ assertion that full discovery of a small subset of property
owners along the contamination pathways will generate a plethora of information and resolve issues
is not well-founded.
Second, Plaintiffs’ proposed case management order contemplates multiple instances of
future agreement between the parties, thus inviting uncertainty and delay as the disagreements are
addressed. For instance, Plaintiffs claim they will confer with Defendants on any other propertyspecific information that Defendants believe should be included in the “worksheets,” that the parties
will agree upon certain Plaintiffs to compose the discovery pool, etc. See Memorandum in Support
[29] at 7-8, 10. These proposals appear to be a recipe for further delay, as consensus between the
parties appears unlikely at this stage.
This case presents an instance where other procedural tools do not appear to be as effective
or efficient as those in the proposed Lone Pine order. Moreover, Lone Pine orders are regularly used
in, and were specifically created for, cases alleging mass environmental contamination. See Baker
v. Anschutz Exploration Corp., 2013 WL 3282880 (W.D. N.Y. June 27, 2013) (outlining Lone Pine
order entered in a case where property owners alleged an oil drilling company contaminated
drinking water); Tatum v. Pactiv Corp., 2007 WL 60931 (M.D. Ala. Jan. 8, 2007) (entering Lone
Pine order where approximately 1,500 Plaintiffs alleges environmental contamination of their
properties); see also Pinares v. United Tech. Corp., 2011 WL 240512 (S.D. Fla. Jan. 19, 2011)
(finding that Lone Pine order was appropriate in case involving only two plaintiffs alleging
contamination of their properties, but the companion case was a class action). Accordingly, the

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Court finds that this factor also weighs in favor of a Lone Pine order.
Type of Injury Alleged by Plaintiffs and Its Cause
As outlined above, this case will likely be “the classic expansive, time-consuming, and
highly expert dependant case that gave birth to the Lone Pine case management method.” See
Pinares, 2011 WL 240512 at *2. The complex issues of causation as well as the sheer number of
claims renders this case as a prime candidate for a Lone Pine order. The Plaintiffs in this matter “do
not need discovery to be able to state whether their own properties are contaminated . . . [and] do
not need discovery to state the factual basis on which they filed this action.” Id. Even so, the
Plaintiffs have available to them the extensive Blackard discovery materials. Therefore, this factor
also supports the entry of a Lone Pine order.
Additional Considerations
Finally, and perhaps most importantly, the entry of the Lone Pine order does not create undue
burdens or expenses for the Plaintiffs. Plaintiffs’ case management order proposes a selection of
several test plaintiffs along each alleged contaminate transport pathway. See Memorandum in
Support [29] at 6-11. Nothing prevents the Plaintiffs from utilizing this same method to continue or
discontinue testing for subsets of plaintiffs along an alleged pathway in order to comply with the
Court’s order. If Plaintiff’s initial testing along a suspected pathway yields negative results for
contaminants, Plaintiffs may wish to abandon further testing along that particular pathway or
voluntarily dismiss those property owners as Plaintiffs.9 In other words, an entry of a Lone Pine
order in no way bars Plaintiff’s from using their own proposed methods to limit their burden and

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Plaintiffs suggest this very procedure in their own submissions. See Memorandum in
Support of Plaintiff’s Motion for Entry of Case Management Order [29] at 10.
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expenses. Furthermore, the Lone Pine order itself is merely an early step in the case management
process. The Court’s Order will be a modified version of that proposed by the Defendant. Case
management in this matter will occur in phases, and subsequent conferences and orders will be
required in order for the action to proceed.
IT IS, THEREFORE, ORDERED that Defendant’s Motion [18] for Entry of a Lone Pine
Order be GRANTED.
SO ORDERED this the 10th day of November, 2014.
s/ Michael T. Parker
United States Magistrate Judge

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