Armendariz et al v. Santa Fe County Board of Commissioners et al

Filing 45

ORDER by Magistrate Judge Laura Fashing denying 22 Motion for Entry of a "Lone Pine" Case Management Order. (ccp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
GABRIEL ARMENDARIZ,
ERIC DION COLEMAN, JACOB GOMEZ,
TONY LOVATO, MATTHEW J. LUCERO,
EDWARD R. MANZANARES, JOE MARTINEZ,
CHRISTOPHER MAVIS, PHILIP TALACHY,
FELIPE J. TRUJILLO, and JOSEPH VIGIL,
on their own behalf and on behalf of
a class of similarly situated persons,
Plaintiffs,
v.

17cv339-WJ-LF

SANTA FE COUNTY BOARD OF COMMISSIONERS,
and MARK GALLEGOS, in his individual and official capacity,
and Industrial Commercial Coatings, LLC,
Defendants.
ORDER DENYING MOTION FOR ENTRY
OF A “LONE PINE” CASE MANAGEMENT ORDER
THIS MATTER is before the Court on defendants Mark Gallegos and Santa Fe County
Board of Commissioners’ (“County Defendants”) Motion for Entry of Lone Pine Case
Management Order, filed on October 3, 2017. Doc. 22. Plaintiffs filed a response (Doc. 33), and
County Defendants filed a reply (Doc. 38). The County Defendants filed a Notice of Completion
of Briefing on October 25, 2017. Doc. 39. Having reviewed the parties’ filings and the relevant
law, the Court finds the motion is not well taken and will deny it.
This case involves a putative class action, in which plaintiffs allege that they were
exposed to toxic chemical fumes, dust, and debris while inmates at the Santa Fe Adult Detention
Facility (“ADF”) when the shower facilities were renovated in 2014. Plaintiffs allege that the
showers at the facility had not been renovated in many years, but had been “repeatedly painted

over” for at least a decade, resulting in “thick layers of paint, mold, and grime” accumulating on
the shower walls. Doc. 1 ¶ 24. Plaintiffs further allege that in June 2013, Santa Fe County
procured a mold assessment, and received recommended remediation measures which included
“appropriate protection for workers removing the mold, isolating the work areas from living
areas with critical barriers, use of HEPA filers, significant ventilation, and vacating human
beings from areas adjacent to those being remediated.” Id. ¶¶ 25, 26. Plaintiffs assert that Santa
Fe County contracted with defendant Industrial Commercial Coatings, LLC (“ICC”) to renovate
the showers, and that ICC failed to follow accepted safety procedures, “including the extensive
safety protocols set forth by the manufacturer of the highly toxic, isocyanate-containing chemical
sealant used in the renovation.” Id. ¶¶ 27, 28. Plaintiffs allege that Santa Fe County exposed
“each and every inmate at ADF to interminable and extraordinarily hazardous conditions, all
day, every day, for months at a time,” by exposing them to “massive amounts of fine gray dust—
comprised of tiny amounts of cement, paint, metal, mold, slime, bacteria and other
microbiological growth, and an isocyanate-containing polyurea sealant—which covered every
surface in the ADF housing units, coming into contact with the inmates’ food and bedding,
damaging their eyes and respiratory systems, and causing them serious gastrointestinal upset.”
Id. ¶¶ 29, 30. In addition, plaintiffs allege that defendants failed to properly ventilate the
isocyanate fumes during and after the application of the sealant, instead recirculating them
throughout the facility via the heating and cooling system. Id. ¶¶ 31, 32.
In their motion, the County Defendants ask the Court to issue a Lone Pine case
management order requiring “each plaintiff to make a prima facie showing, through qualified
expert affidavits, of harmful exposure and specific causation for each injury the plaintiff[s]
claim[] in this lawsuit, before any further discovery or other pretrial proceedings are scheduled

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or conducted.” Doc. 22 at 2. Plaintiffs oppose the request for a Lone Pine order, arguing that
this is not the type of “toxic tort quagmire” for which these orders are appropriate. Doc. 33 at 5.
For the reasons outlined below, the Court finds a Lone Pine order is neither necessary nor
appropriate for the efficient disposition of this case.
“A Lone Pine order is designed to assist in the management of complex issues and
potential burdens on defendants and the court in mass tort litigation, essentially requiring
plaintiffs to produce a measure of evidence to support their claims at the outset.” In re Digitek
Prod. Liab. Litig., 264 F.R.D. 249, 255 (S.D. W. Va. 2010) (internal citations omitted). No
federal rule or statute authorizes or requires the Court to enter a Lone Pine order. Id. at 256. The
Tenth Circuit has not addressed the propriety of issuing Lone Pine orders. See Marquez v. BNSF
Ry. Co., No. 17-CV-01153-CMA-MEH, 2017 WL 3390577, at *1 (D. Colo. Aug. 8, 2017).
However, “[j]udges 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.’”
Id. Courts relying on this “extraordinary procedure” typically have relied on the grant of broad
discretion under the Federal Rules of Civil Procedure to manage discovery. In re Digitek Prod.
Liab. Litig., 264 F.R.D. at 256 (citing Acuna v. Brown & Root Inc., 200 F.3d 335, 340 (5th Cir.
2000)). This Court’s decision to grant or deny a motion for a Lone Pine order is reviewed for
abuse of discretion. Acuna, 200 F.3d at 340–41
Courts consider the following five factors in deciding whether a Lone Pine order is
appropriate:
(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

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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 Product Liab. Litig., 264 F.R.D. at 256 (internal citation omitted). The Court finds
that these factors weigh in favor of denying the motion.
A. The Posture of the Action
“[T]he vast majority of cases granting Lone Pine motions did so only when there was a
refusal to comply with discovery requests or when plaintiffs failed to allege a prima facie case.”
Manning v. Arch Wood Prot., Inc., 40 F. Supp. 3d 861, 864 (E.D. Ky. 2014). Neither of those
conditions is present here. The parties litigated this case in state court for approximately a year
and half, where they engaged in discovery. See Doc. 33 at 8. In the state court action, the
County Defendants produced approximately 3,000 pages of discovery, but there also were a
number of unresolved discovery disputes. Id. at 2, 8. The County Defendants claim that they are
“in the dark about what specific substances each plaintiff claims to have been exposed to, the
locations in the facility where such exposure(s) occurred, the length of the exposure(s), and what
concentration(s), etc.” Doc. 22 at 4. However, as plaintiffs note, the County Defendants are the
only ones that possess this information. Plaintiffs state that they never “received verification of
the actual product applied during the shower renovation or materials related to the Risk
Management assessment and investigation conducted in regards to complaints from both inmates
and correctional workers.” Doc. 33 at 2. Plaintiffs assert that they need discovery into these
issues so that they can properly prepare their case. Id. at 4. “Lone Pine motions are more likely
to be granted when the parties have engaged in discovery and the motion is filed at a time when
plaintiffs should have already had the opportunity to obtain information regarding the cause of
their injuries.” Manning, 40 F. Supp. 3d at 864 (internal citation omitted). That time has not
arrived in this case.

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Given the incomplete state of discovery in this case, and the fact that County Defendants
have not shown that plaintiffs fail to allege a prima facie case, the Court finds that this factor
weighs strongly in favor of denying the motion for a Lone Pine order.
B. The Peculiar Case Management Needs Presented
The Court agrees with plaintiffs that this case is not overly complex and does not pose
peculiar case management needs warranting the imposition of a Lone Pine order. See Doc. 33 at
10. While the County Defendants claim that “Courts routinely enter Lone Pine case
management orders in toxic tort class action cases,” Doc. 38 at 8, the Court is not convinced that
the size or complexity of this case merits a Lone Pine order. Discovery in the state court
proceeding was proceeding through traditional means, and the Court sees no reason this case
cannot be managed through traditional discovery processes and procedures. This factor weighs
in favor of denying the motion for a Lone Pine order.
C. External Agency Decisions Impacting the Merits of the Case
Plaintiffs argue that this case is unlike Lone Pine, where a “set of authoritative studies by
the EPA provided extensive information about the extent of contamination and cast grave doubt
on the viability of the plaintiffs’ claims.” Doc. 33 at 11 (citing Lore v. Lone Pine Corp., No. L33606-85, 1986 WL 637507, at *2 (N.J. Super. Ct. Law Div. Nov. 18, 1986)). Plaintiffs argue
that because there is no external agency decision which would impact the merits of this case, this
factor weighs against the entry of a Lone Pine order. Doc. 33 at 12. County Defendants argue
that the fact that there are no external agency decisions in this case is neutral, and does not tilt the
balance in either direction. Doc. 38 at 8. Whether this factor supports denial of the motion or is
neutral is immaterial, as the other factors clearly support denying a Lone Pine order.

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D. The Availability and Use of Other Procedures
The County Defendants argue that issuing a Lone Pine order in this case will serve the
principles underlying Rule 16 (eliminating frivolous claims, managing complex issues, and
lessening the burdens of complex litigation on both parties and the Court), as well as the
principles underlying Rule 26(b)(1) ((a) identifying the “importance of issues at stake in the
action”; (b) identifying the “importance of categories of discovery to resolving the issues”; (c)
identifying “the parties’ resources”; and (d) determining “whether the burdens or expense of the
proposed discovery outweighs its likely benefit”). Doc. 38 at 9. “Resorting to crafting and
applying a Lone Pine order,” however, “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. County Defendants have failed to show why normal discovery and case
management tools are inadequate, and this factor weights against entry of a Lone Pine order.
E. The Type of Injury and Its Cause
The Court agrees with plaintiffs that this is not the type of complex “toxic tort” case
involving “delayed, ongoing, and long-term health concerns” where Lone Pine orders have been
found appropriate. See Doc. 33 at 9. As plaintiffs assert, this case is “about contamination of a
confined forced living environment over a relatively short time period and the harms
immediately suffered by those jailed in that environment.” Id. at 9–10. Plaintiffs argue that
Lone Pine orders are “more appropriate in cases where plaintiffs are claiming complex,
multifactorial injuries like cancer or birth defects, and where it may be necessary to determine if
the plaintiffs were ever actually exposed to the chemicals in doses sufficient to cause those
diseases.” Id. at 13. Plaintiffs argue that the types of injuries they allege—like respiratory

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distress, harm to eyes and throat, and diarrhea—“do not require compound-specific proof.” Id. at
13. The County Defendants counter that a Lone Pine order is appropriate because there are
“highly individualized questions regarding the extent of any alleged exposure,” and because
plaintiffs allege a variety of different maladies and symptoms. Doc. 38 at 4–7. The County
Defendants cite two cases for the proposition that dose/response evidence will be required:
McClain v. Metabolife Int’l, Inc., 401 F.3d 1233, 1241 (11th Cir. 2005) and Mitchell v. Gencorp,
165 F.3d 778, 781 (10th Cir.1999). Doc. 38 at 6. While both of these cases recognize that
plaintiffs ultimately must prove that the defendants exposed them to a harmful substance at a
level that is harmful to humans, neither case stands for the proposition that this evidence must be
produced early in the litigation, as a Lone Pine order would require. This factor therefore weighs
in favor of denying the motion.
The relevant factors weigh in favor of denying the motion.
IT IS THEREFORE ORDERED that County Defendants’ Motion for Entry of a Lone
Pine Case Management Order (Doc. 22) is DENIED.

______________________________________
Laura Fashing
United States Magistrate Judge

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