United States District Court, S.D. California
DANIELLE TRUJILLO, as Guardian Ad Litem for KADEN PORTER, a minor, on behalf of himself and others similarly situated; LACEY MORALES, as Guardian Ad Litem for ISABEL MORALES., a minor, on behalf of herself and others similarly situated; BEVERLY HOY, on behalf of herself and all others similarly situated; Plaintiffs,
AMETEK, INC., a Delaware corporation; SENIOR OPERATIONS, LLC, a limited liability company; and DOES 1 through 100, inclusive, Defendants.
ORDER DENYING DEFENDANTS' OBJECTIONS TO
PLAINTIFFS' LONE PINE SUBMISSION [DKT. NOS. 84 &
GONZALO P. CURIEL UNITED STATES DISTRICT JUDGE.
the Court is Plaintiffs' Lone Pine submission,
Dkt. No. 77, filed pursuant to this Court's Order
Granting in Part and Denying in Part Defendants' Motion
for Entry of a Lone Pine Case Management Order, Dkt.
No. 71. On December 2, 2016, this Court granted
Defendants' request to file objections to Plaintiffs'
Lone Pine response. Dkt. No. 83. The adequacy of
Plaintiffs' Lone Pine submission has been fully
briefed. Defendant Ametek, Inc. (“Ametek”) and
Defendant Senior Operations, LLC (“Senior
Operations”) each filed separate objections on January
3, 2017. Plaintiffs Trujillo, Morales and Hoy filed a joint
response to the Defendants' objections on January 23,
2016, Dkt. No. 86, and Defendants submitted separate replies
on January 30, 2017, Dkt. Nos. 87 & 88.
review of the evidence submitted by Plaintiffs, the moving
papers, the applicable law, and for the foregoing reasons,
the Court hereby DENIES Defendants'
objections to Plaintiffs' Lone Pine submission
and concludes that Plaintiffs have made a sufficient
prima facie evidentiary showing to warrant moving
ahead with discovery.
toxic tort case arising out of Defendant Ametek's alleged
dumping of chemical waste into a temporary storage tank on
their property in El Cajon, California.Plaintiffs allege
that the toxic waste caused an underground plume of discharge
that infected, and continues to infect, the groundwater below
the Magnolia Elementary School (“Magnolia”),
which shares a property line with the Defendant property.
Plaintiffs further allege that the plume created toxic fumes
that migrated, and continue to migrate, from the ground into
the air at Magnolia. According to Plaintiffs, the toxic
vapors contain chemicals that posed and pose a significant
human health risk to Magnolia's occupants, including
students like Kaden Porter and Lacey Morales and teachers
like Plaintiff Beverly Hoy.
29, 2015, Plaintiffs filed a class action complaint against
Defendants in the Superior Court of the State of California
in the County of San Diego. Def. Notice Removal, Dkt. No. 1.
On June 25, 2015, Defendants removed the case to federal
court under 28 U.S.C. § 1332(a). Id. On August
7, 2015, Plaintiffs filed an amended complaint, alleging
claims for (1) negligence; (2) gross negligence; (3) public
nuisance; and (4) strict liability (ultrahazardous activity).
Dkt. No. 21 at 25-28. The complaint sought compensatory and
punitive damages as well as medical monitoring costs.
Id. at 24-28, 32.
after, on August 24, 2015, Defendants filed separate motions
to dismiss Plaintiffs' first amended complaint. Dkt. Nos.
24 & 25. On November 18, 2015, the Court granted in part
and denied in part Defendants' motions. Dkt. No. 43. It
held that Plaintiffs had sufficiently pleaded causes of
action for negligence, gross negligence, and public nuisance,
but that they had failed to adequately allege a claim for
strict liability. Id. The Court, therefore,
dismissed only Plaintiffs' fourth cause of action for
strict liability (ultrahazardous activity). Id.
months after Defendants answered Plaintiffs' first
amended complaint, Dkt. Nos. 51 & 52, and just a week
after the parties submitted a joint discovery plan, Dkt. No.
58, Defendants separately moved for entry of a Lone
Pine case management order, Dkt. Nos. 59 & 60. In
these motions, Defendants asked the Court to issue an order -
that is, a Lone Pine order, named after Lore v.
Lone Pine Corp., 1986 WL 637507 (N.J. Sup. Ct. Nov. 19,
1986) - requiring Plaintiffs to come forward with
“prima facie evidence of exposure and causation before
proceeding to expensive and time-consuming discovery and
trial.” Dkt. No. 60.
28, 2016, the Court granted in part and denied in part
Defendants' motions for entry of a Lone Pine
case management order. Dkt. No. 71 (“CMO”). The
Court found it appropriate to require each named Plaintiff to
make a prima facie showing regarding his or her
exposure, increased risk of specific injury and causation,
but did not require that such an evidentiary showing be made
as to any of the putative class members. Dkt. No. 71 at 7.
The Court further ordered that each Plaintiff “produce
a case-specific report within ninety (90) days of the
issuance of the CMO including the following information: (1)
the identity of any hazardous substance(s) originating from
the Ametek Property to which the Plaintiff was exposed; (2)
the level of exposure to substance(s) from the Ametek
Property claimed by Plaintiff, and whether such level of
exposure presents a human health risk; (3) the route of
exposure; (4) the relative increase in the chance of onset of
a specific disease(s) in the Plaintiff as a result of the
exposure, when compared to (a) the Plaintiff's chances of
developing the disease had he or she not been exposed, and
(b) the chances of the members of the public at large of
developing the disease; (5) the clinical value of early
detection and diagnosis with respect to each particular
disease(s) that the Plaintiff seeks to screen through medical
monitoring; (6) the scientific and medical bases for the
expert's opinions and conclusions, including specific
reference to the particular scientific and medical literature
forming the basis of the expert's opinion. Id.
at 7. The Court concluded by noting that “Any Plaintiff
who fails to provide the case-specific expert report that
complies with this Order . . . will be subject to having his
or her claims dismissed with prejudice upon application to
the Court by Defendants.” Id. at 8.
Defendants' objections to Plaintiffs' Lone
Pine submission, filed January 3, 2017, they ask the
Court to dismiss Plaintiffs' claims with prejudice for
failing to make the required prima facie evidentiary
showing and for failing to comply with the Court's
Lone Pine order. Dkt. Nos. 84 & 85.
Pine orders are designed to handle the complex issues
and potential burdens on defendants and the court in mass
tort litigation.” Acuna v. Brown & Root
Inc., 200 F.3d 335, 340 (5th Cir. 2000). Their
“basic purpose is to identify and cull potentially
meritless claims and streamline litigation in complex cases,
” McManaway v. KBR, Inc., 265 F.R.D. 384, 385
(S.D. Ind. 2009) (citation omitted), and to achieve that
purpose they “require[e] plaintiffs to produce some
evidence to support a credible claim, ” Steering
Comm. v. Exxon Mobil Corp., 461 F.3d 598, 604 n.2 (5th
Cir. 2006). The Ninth Circuit has stated that district courts
have authority to enter Lone Pine orders pursuant to
their “broad discretion to manage discovery and to
control the course of litigation under Federal Rule of Civil
Procedure (“Rule”) 16.” Avila v.
Willits Envtl. Remediation Trust, 633 F.3d 828, 833 (9th
Cir. 2011); see also Acuna, 200 F.3d at 340
(“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.”);
Fed.R.Civ.P. 16(c)(2)(L) (authorizing courts 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.”). A district court's decision to issue a
Lone Pine order, therefore, is reviewed for an abuse
of discretion. See Avila, 633 F.3d at 833.
that courts consider when evaluating a Lone Pine
request include (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. 249, 256 (S.D. W.Va.
2010). When courts find that these, or other factors, weigh
in favor of exercising their discretion to issue a Lone
Pine, they typically require the plaintiffs to make a
prima facie evidentiary showing regarding the
plaintiffs' exposure to the alleged toxic substances,
what injuries they sustained, and how the defendants'