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Armendariz v. Santa Fe County Board of Commissioners

United States District Court, D. New Mexico

January 11, 2018

SANTA FE COUNTY BOARD OF COMMISSIONERS, and MARK GALLEGOS, in his individual and official capacity, and Industrial Commercial Coatings, LLC, Defendants.


          Laura Fashing United States Magistrate Judge

         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 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 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.

         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 ...

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