[Drug and Device Law] Never Say Never to Lone Pine Orders
After our last two posts, we received emails blasting us for being insensitive to the plight of injured plaintiffs. That struck us as unfair, given that the posts pertained to the technical issues of choice of law and choice of forum. There was certainly no display of mirth over anyone's maladies. But now we are feeling a wee bit gun-shy, so this week's report steers clear of anything remotely incendiary.
In fact, it is not even about a drug or device litigation. Rather, the case involves an environmental dispute. But it is interesting because it includes a "Lone Pine" order, something that mass tort defendants often ask for but less often actually get. Named after a case from New Jersey, a Lone Pine order forces mass tort plaintiffs to furnish some concrete proof, often in the form of an expert affidavit, establishing basic facts such as product usage and medical causation. Lone Pine orders can be an effective method for ensuring that mass tort inventories are not built up with frivolous cases.
This week's case under review is Modern Holdings, LLC et al. v. Corning Inc., et al., 2015 WL 6482374 (E.D. Ky. Oct. 27, 2015). The magistrate judge apparently thought that discovery was moving along too slowly, and entered an order requiring personal injury plaintiffs to submit affidavits explaining: (a) the specific illness sustained, (b) the date of diagnosis and information about the medical provider rendering the diagnosis, (c) the toxic chemical allegedly causing extensive illness, including manner, pathway, dates, duration, and dose, and (d) the scientific literature supporting causation. Property damage plaintiffs were required to submit affidavits explaining: (a) property address, (b) facts re contamination, and (c) degree of diminution in value. The plaintiffs sought reconsideration from the district court.
The Modern Holdings district court denied reconsideration, beginning by acknowledging deference to the magistrate judge's discretion. The district court went on to reject the plaintiffs' arguments that the Lone Pine order should have first been addressed in the Rule 26 joint report, that there was no Sixth Circuit pro Lone Pine authority (there was no anti authority either), that an earlier E.D. Kentucky case was to the contrary (the earlier case involved only six plaintiffs), that the Lone Pine order was punitive, and that the order was an unfair hurdle for the plaintiffs. The district court gave short shrift to that last argument, reasoning that the required information should be in the possession of the plaintiffs. Whatever the cost for plaintiffs' counsel, it would be trivial compared to the costs of defending against a mass tort where most of the cases are worthy of dismissal. In short, the district court concluded that the Lone Pine order was a reasonable tool to help focus the issues for all parties. We'd like to think that Modern Holdings is a modern holding. It has been added to our Lone Pine Cheat Sheet.
In fact, it is not even about a drug or device litigation. Rather, the case involves an environmental dispute. But it is interesting because it includes a "Lone Pine" order, something that mass tort defendants often ask for but less often actually get. Named after a case from New Jersey, a Lone Pine order forces mass tort plaintiffs to furnish some concrete proof, often in the form of an expert affidavit, establishing basic facts such as product usage and medical causation. Lone Pine orders can be an effective method for ensuring that mass tort inventories are not built up with frivolous cases.
This week's case under review is Modern Holdings, LLC et al. v. Corning Inc., et al., 2015 WL 6482374 (E.D. Ky. Oct. 27, 2015). The magistrate judge apparently thought that discovery was moving along too slowly, and entered an order requiring personal injury plaintiffs to submit affidavits explaining: (a) the specific illness sustained, (b) the date of diagnosis and information about the medical provider rendering the diagnosis, (c) the toxic chemical allegedly causing extensive illness, including manner, pathway, dates, duration, and dose, and (d) the scientific literature supporting causation. Property damage plaintiffs were required to submit affidavits explaining: (a) property address, (b) facts re contamination, and (c) degree of diminution in value. The plaintiffs sought reconsideration from the district court.
The Modern Holdings district court denied reconsideration, beginning by acknowledging deference to the magistrate judge's discretion. The district court went on to reject the plaintiffs' arguments that the Lone Pine order should have first been addressed in the Rule 26 joint report, that there was no Sixth Circuit pro Lone Pine authority (there was no anti authority either), that an earlier E.D. Kentucky case was to the contrary (the earlier case involved only six plaintiffs), that the Lone Pine order was punitive, and that the order was an unfair hurdle for the plaintiffs. The district court gave short shrift to that last argument, reasoning that the required information should be in the possession of the plaintiffs. Whatever the cost for plaintiffs' counsel, it would be trivial compared to the costs of defending against a mass tort where most of the cases are worthy of dismissal. In short, the district court concluded that the Lone Pine order was a reasonable tool to help focus the issues for all parties. We'd like to think that Modern Holdings is a modern holding. It has been added to our Lone Pine Cheat Sheet.
So there it is. No gloating or sneering. Perhaps we can straightforwardly describe that straightforward ruling without being called a Bond villain.
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.... Which reminds us that this week sees the U.S. premier of Spectre, the 24th "official" (i.e., produced by the Broccoli family’s Eon company ) James Bond movie. The title signals a resolution of one of film history’s nastiest legal disputes. The dispute also lasted an eternity. It might not have been Jarndyce v. Jarndyce, but it was close.
Ian Fleming was never under the illusion that he was creating great art. Like the rest of us, he liked cash. His Goldeneye retreat in Jamaica did not come cheap. (Nor is it cheap to stay there now. But we recommend it.) The first few Bond books (Casino Royale, Live and Let Die, Moonraker, etc.) sold well. The franchise did even better after President Kennedy mentioned that From Russia with Love was one of his favorite books. Still, movies are where the real money is. Fleming sold the rights to his first (and probably best) novel, Casino Royale, for $1000.00 to American tv producers, who created a version starring Barry Nelson (yes, the guy from The Shining) as "Jimmy" Bond in an episode of the CBS series Climax. It was as bad as it sounds. Poke around a bit, perhaps on YouTube, and you can find it. (For a while, the rights to Casino Royale were owned separately from the rest of the Fleming oeuvre. That is why the bizarre 1967 spoof version exists. What a mess! The Broccolis eventually acquired the rights, and thus we have the marvellous reboot in 2006.)
Needless to say, the small-screen, Americanized portrayal of Bond was not quite the success Fleming desired. He later sat down with a guy who had experience with films, Kevin McClory, and tried to write a screenplay. The story involved a criminal organization called Spectre (Special Executive for Counterintelligence, Terrorism, Revenge, and Extortion - which we'd like to think was one of the alternatives under consideration when a certain plaintiff lawyer organization decided to change its name), headed up by a creepy bald guy who stroked a white Persian cat while pushing trap-door and electrocution buttons. The screenplay went nowhere. Then Fleming did something dumb - he turned it into a novel, Thunderball, and gave McClory no credit. McClory sued for plagiarism. It was an ugly fight. It is documented in a fascinating book, The Battle for Bond (2007). Some think the lawsuit played a role in Fleming's death in 1964 at the age of 56. As a result of the lawsuit, McClory got producing credit on the Thunderball movie and also got the right after a number of years to make another movie based on the script. At the time that was thought to be no big deal. After all, how much longer would there be an audience for 007 films? Oops - we're at 53 years and counting.
At this point, we must confess to having a soft spot for Thunderball (1965). It was the first Bond film we saw (almost 50 years ago!). It was also the highest-grossing Bond film, which is really saying something, until Skyfall (2012). Connery calls it his favorite, and it is the reason where you are just as likely to find him at his home in the Bahamas, where Thunderball was filmed, as in his beloved Scotland. Thunderball was also something of a litigation machine. The theme song that appears in the movie was memorably warbled by Tom Jones. ("He looks at the world and wants it all/So he strikes!/Li-hike Thunderbaaaaaall.") Go ahead and listen. But that was not the first tune proposed for the slot. Instead, the producers intiially hired Dionne Warwick to sing "Mr. Kiss Kiss Bang Bang." The title came from how the Italians referred to Bond. That same song was later essayed by Shirley Bassey (who also sang the themes for Goldfinger, Diamonds are Forever, and Moonraker.) "Mr. Kiss Kiss Bang Bang" is a catchy tune, and it does show up in our favorite scene in the film ("Mind if my friend sits this one out? She's just dead!"), but it was ultimately deemed inappropriate for the opening theme because it never mentions the title of the movie. (The producers, in time, got over that requirement. Think of "You Know My Name," the theme song to Casino Royale.) Bassey's recording was also problematic because she kept trilling "bam bam" or "ban ban" instead of "bang bang." When Bassey learned that her rendition had been dropped, she sued and sought to enjoin release of the film. She lost.
[
As it turns out, there is a strange history behind many of the Bond theme songs. Imagine a parallel universe with Bond themes sung by Johnny Cash, Johnny Mathis, Blondie, and, believe it or not, Alice Cooper. It almost happened, and you can find those versions if you do some detective work.]
As it turns out, there is a strange history behind many of the Bond theme songs. Imagine a parallel universe with Bond themes sung by Johnny Cash, Johnny Mathis, Blondie, and, believe it or not, Alice Cooper. It almost happened, and you can find those versions if you do some detective work.]
[
No doubt it has occurred to you that 2015 is a big movie year, with both a Bond film and a new Star Wars entry, The Force Awakens. Has anything like that ever happened before? Funny you should ask. In 1977 the first Star Wars (now called Episode IV: A New Hope) hit the screens, as did the best Roger Moore Bond film, The Spy Who Loved Me. 1983 was a crazy year, with two competing Bond films, Octopussy and Never Say Never Again (more on that later), as well as Return of the Jedi. In 1999, we cringed our way through Phantom Menace, George Lucas's leaden space opera about tariff structures. The World is Not Enough was also out, though there was no real reason to watch it save for Sophie Marceaux. In 2002, we watched Attack of the Clones with the Drug and Device Law Son, snoozing away until Yoda spun into action as a gnome ninja. High-fives all around. But there were no high fives during Die Another Day, which was Pierce Brosnan's last performance as Bond, and which is almost universally regarded as ranking 24 out of 24. An invisible car! CGI surfing on a tsunami!)]
Back to the litigious Mr. McClory. He eventually made the aforementioned Never Say Never Again, an "unofficial" Bond film (though, since it starred Sean Connery, it is hard to think of it that way). McClory by no means thought he was done. He wanted to make yet another Bond movie, Warhead 2000, but it never came to pass. Nevertheless, McClory remained a thorn in the side of Cubby Broccoli and the Eon team. McClory was not shy about peskily asserting his intellectual property rights. For that reason, the Bond films stopped referring to Spectre and its head villain. But watch the pre-title sequence of For Your Eyes Only (1981). A cackling bald guy cradling an anxious feline takes remote control of Bond's helicopter and tries to kill him. (Remember this helicopter bit when you see the pretitle sequence in Spectre.) Bond gets the better of the situation, of course, manages to scoop up the bad guy, and unceremoniously drops him down a chimney. It was Broccoli's cinematic extension of a middle finger to McClory. Before the villain is dispatched, he pleads for mercy, nuttily promising to buy Bond a delicatessen made of stainless steel. In interviews Broccoli let it be known that New York gangsters made a practice of bribing cohorts with stainless steel delicatessens. Go figure.
No doubt it has occurred to you that 2015 is a big movie year, with both a Bond film and a new Star Wars entry, The Force Awakens. Has anything like that ever happened before? Funny you should ask. In 1977 the first Star Wars (now called Episode IV: A New Hope) hit the screens, as did the best Roger Moore Bond film, The Spy Who Loved Me. 1983 was a crazy year, with two competing Bond films, Octopussy and Never Say Never Again (more on that later), as well as Return of the Jedi. In 1999, we cringed our way through Phantom Menace, George Lucas's leaden space opera about tariff structures. The World is Not Enough was also out, though there was no real reason to watch it save for Sophie Marceaux. In 2002, we watched Attack of the Clones with the Drug and Device Law Son, snoozing away until Yoda spun into action as a gnome ninja. High-fives all around. But there were no high fives during Die Another Day, which was Pierce Brosnan's last performance as Bond, and which is almost universally regarded as ranking 24 out of 24. An invisible car! CGI surfing on a tsunami!)]
Back to the litigious Mr. McClory. He eventually made the aforementioned Never Say Never Again, an "unofficial" Bond film (though, since it starred Sean Connery, it is hard to think of it that way). McClory by no means thought he was done. He wanted to make yet another Bond movie, Warhead 2000, but it never came to pass. Nevertheless, McClory remained a thorn in the side of Cubby Broccoli and the Eon team. McClory was not shy about peskily asserting his intellectual property rights. For that reason, the Bond films stopped referring to Spectre and its head villain. But watch the pre-title sequence of For Your Eyes Only (1981). A cackling bald guy cradling an anxious feline takes remote control of Bond's helicopter and tries to kill him. (Remember this helicopter bit when you see the pretitle sequence in Spectre.) Bond gets the better of the situation, of course, manages to scoop up the bad guy, and unceremoniously drops him down a chimney. It was Broccoli's cinematic extension of a middle finger to McClory. Before the villain is dispatched, he pleads for mercy, nuttily promising to buy Bond a delicatessen made of stainless steel. In interviews Broccoli let it be known that New York gangsters made a practice of bribing cohorts with stainless steel delicatessens. Go figure.
Broccoli and McClory are long dead. Their legal warfare outlived them. At one point, a tussle over Bond rights between rival studios ended up affecting who got the Spider-Man franchise. Weird. Be that as it may, there was a happy ending. The Bond intellectual property rights have now been collected in one neat basket. And, voila, we now have the nice folks of Spectre back in the official Bond fold. By most accounts, this film, Daniel Craig's fourth outing (and, we hope, not last, though he has recently made noises about being burnt out) is really good. Moreover, if you have followed the series and the McClory litigation (to say nothing of last year's Sony email leaks), you can expect a cool character reveal.
But we do not want any readers yelling at us about spoilers.
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Posted By Steve McConnell to Drug and Device Law at 11/04/2015 07:30:00 AM --
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