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Dec. 7, 2023

Court Decision Affirms Dismissal for Failure to Comply with Lone Pine Order

By Dustin B. Rawlin

American Bar Association's (ABA) Practice Points

Recently, Ohio’s First District Court of Appeals affirmed a trial court’s order dismissing a product liability case with prejudice, holding that the trial court’s “discovery order,” which stayed discovery while requiring the plaintiff to produce evidence of the signature injury alleged in the complaint, was not an abuse of discretion. See Warman v. LivaNova Deutschland, GMBH, --- N.E.3d ----, 2023 WL 7383158 (Ohio Ct. App. Nov. 8, 2023). The First District’s decision is only the second Ohio appellate decision to discuss a Lone Pine type discovery order. Warman lays the groundwork for other trial courts to issue Lone Pine-like “discovery orders” under appropriate circumstances.

In Warman, the plaintiff underwent heart surgery in 2015. In 2020, he was notified by the hospital that he may have been exposed to harmful bacteria emitted from a heater-cooler medical device during his surgery. That specific device was the subject of multidistrict litigation (MDL) centralizing claims that, due to likely contamination during the manufacturing process, the heater-cooler devices harbored unique Nontuberculous Mycobacteria (NTM) that may cause serious, even fatal, infections. In the mass tort context, this is often referred to as a signature injury.

The plaintiff filed several complaints affirmatively alleging that he developed an NTM infection following his surgery. The defendants asked the court to stay discovery and requested some proof that the plaintiff actually contracted a NTM infection linked to the heater-cooler device used in his surgery. In essence, the defendants requested that the court issue a Lone Pine order, requiring the plaintiff to produce prima facie evidence of the signature injury and causation. While Lone Pine orders are somewhat common in mass toxic-tort litigation and MDLs, trial courts rarely impose them in single-plaintiff cases. Warman, 2023 WL 7383158, at *2.

Read the article here.