United States District Court, D. New Mexico
GABRIEL ARMENDARIZ, ERIC DION COLEMAN, JACOB GOMEZ, TONY LOVATO, MATTHEW J. LUCERO, EDWARD R. MANZANARES, JOE MARTINEZ, CHRISTOPHER MAVIS, PHILIP TALACHY, FELIPE J. TRUJILLO, and JOSEPH VIGIL, on their own behalf and on behalf of a class of similarly situated persons, Plaintiffs,
SANTA FE COUNTY BOARD OF COMMISSIONERS, and MARK GALLEGOS, in his individual and official capacity, and Industrial Commercial Coatings, LLC, Defendants.
ORDER DENYING MOTION FOR ENTRY OF A “LONE
PINE” CASE MANAGEMENT ORDER
Fashing United States Magistrate Judge
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
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.
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
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
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.
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.
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
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.
The Peculiar Case Management Needs Presented
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.
External Agency Decisions Impacting the ...