February is a fine time to cuddle up with a good book or a short case. Take a look at In re Xarelto Products Liability Litigation, 2021 WL 493069 (E.D. La. Feb. 10, 2021). Pro se plaintiffs brought a lawsuit claiming their relative died from a brain hemorrhage caused by Xarelto. Their case was sent to the Xarelto MDL, where it was something of a latecomer. By this time, a Master Settlement Agreement (MSA) was in place, and the opt-in rate was exceeding 99%.
The MDL court had entered Case Management Order (CMO) 11, which applied to any plaintiff who had not signed onto the MSA. CMO 11 imposed several requirements upon non-settling plaintiffs, including the filing of a case specific Rule 26(a)(2) report from a licensed physician to the effect that the drug caused the injury. That requirement is affectionately known as a Lone Pine order, because it debuted in a New Jersey case of that name. Lone Pine orders are, along with the incandescent light, the submarine, transistors, air conditioning, and Newark hot dogs, among the greatest inventions in the history of the Garden State.
As the Xarelto court tells us, the "basic purpose of a Lone Pine order is to identify and cull potentially meritless claims and streamline litigation in complex cases." We love them, plaintiffs hate them, and courts seem reluctant to impose them until some big-time settling has already occurred. Why, it's almost as if some courts view Lone Pine orders as rewards to defendants who opened up their wallets – or as cudgels to rap the hands of holdout plaintiffs.
The pro se plaintiffs had not complied with the Lone Pine order, even though the court gave them several extensions. The defendants moved to dismiss the complaint.
Why not dismiss the complaint? What was the pro se plaintiffs' excuse? The question almost answers itself, doesn't it? The pro se plaintiffs did not comply because they were pro se plaintiffs. They asked the court to appoint pro bono counsel for them. The court refused, pointing out that, as a general matter, litigants have no right to court-appointed counsel in a civil case, and this wasn't one of the exceptional circumstances calling for a different result. One wonders why no contingent fee counsel swooped in to the rescue. Could it be that the case was bereft of merit?
It's not as if the pro se plaintiffs lacked eloquence. Here is how they explained their inability to secure a Rule 26(a)(2) causal affidavit:
The only way Plaintiffs could have complied with CMO 11 Rule 26 requirement was to commit the crime of kidnapping a licensed physician at gunpoint, hold him/her hostage, torture him/her until he/she agreed to read the 859 pages of Dexter Brown's medical records, and then murder him/her so that he/she doesn't identify the Plaintiffs to the police ... BECAUSE NO LICENSED PHYSICIAN WAS WILLING TO PREPARE THE RULE 26(a) REPORT VOLUNTARILY WITH OR WITHOUT PAY.
Rather than reward the pro se plaintiffs' admirable restraint and candor, the court dismissed the case with prejudice for failure to satisfy the Lone Pine order. Pity.
Actually, the real pity is that courts do not issue Lone Pine orders more often and sooner. It is not only pro se plaintiffs who cannot come across with causal affidavits; big chunks of bloated case inventories assembled by esquires will also exit the docket.
This case has been added to our Lone Pine cheat sheet.
This article is presented for informational purposes only and is not intended to constitute legal advice.