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Abner v. Hercules, Inc.

United States District Court, S.D. Mississippi, Eastern Division

November 10, 2014

DOROTHY ABNER, et al., Plaintiffs,
HERCULES, INC., et al., Defendants.


MICHAEL T. PARKER, Magistrate Judge.

THIS MATTER is before the Court on Defendant's Motion for Entry of a Lone Pine [1] 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]


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 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 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].


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 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.


Upon consideration of the factors listed above and addressed below, the Court finds that entering a Lone Pine ...

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