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

Dustin Bradley Rawlin


  • Ohio's First District Court of Appeals affirmed the dismissal of a product liability case, supporting the trial court's "discovery order" that stayed discovery until the plaintiff provided evidence of the alleged signature injury.
  • The case, Warman v. LivaNova Deutschland, involved a plaintiff who underwent heart surgery and later learned of potential exposure to harmful bacteria from a heater-cooler device.
  • The defendants requested a Lone Pine order, asking for prima facie evidence of the signature injury, which is rare in single-plaintiff cases.
  • The appellate court found that the trial court's decision to stay discovery until the plaintiff provided proof of the signature injury was reasonable, preventing potentially frivolous claims without sufficient evidentiary support. 
Court Decision Affirms Dismissal for Failure to Comply with Lone Pine Order
Gunnar Svanberg Skuklason via Getty Images

On November 8, 2023, 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.

During an October 2022 hearing, the plaintiff’s counsel objected to the defendants’ request, but also volunteered, “I’ve got all kinds of medical records that he’s got an infection. Do you want me to have a doctor product a report that my client got an infection as a result of the surgery? I can do that.” Id. The trial court ordered the plaintiff to do so within 60 days. When the plaintiff did not, the trial court gave the plaintiff an additional 90 days, or the case would be dismissed. Id. A status conference was set on the deadline; the plaintiff’s counsel failed to appear, and the case was dismissed. After dismissal, the plaintiff’s counsel filed an expert disclosure that stated the plaintiff was “at risk for [an NTM infection],” but not that he had actually had one. Id. That is because the plaintiff’s medical records were devoid of evidence of any NTM-related infection. Id. The plaintiff then appealed the dismissal.

The Warman court first had to contend with the only other Ohio decision on record dealing with Lone Pine orders, Simeone v. Girard City Bd. of Edn., 872 N.E.2d 344 (2007). There, the Eleventh District Court of Appeals reversed dismissal for failure to comply with a Lone Pine order, finding the trial court had unfairly truncated discovery. The Simeone Lone Pine order required the plaintiffs to produce evidence of their injuries, the contaminant they were exposed to, and causation. However, much of the information required to satisfy the order was in the possession of the defendant, and the trial court denied plaintiffs’ discovery requests to obtain it, including denying a motion to compel. The appellate court found the trial court had “put the cart before the horse” since there had been no meaningful discovery in the case. Id. at 4.

Unlike in Simeone, the Warman plaintiff did not argue he was denied access to any discovery that prevented his expert from forming an opinion. The plaintiff never filed a motion to compel. Indeed, the trial court invited the plaintiff’s counsel to identify what discovery he needed to identify a signature injury and tie it to the defendant’s device. The plaintiff never did and instead volunteered he could do so based on his own medical records. Id. at 5.

Ultimately, the Warman court held that the trial court’s decision to stay discovery pending proof of the signature injury was reasonable and “guarded against a potentially frivolous claim that, although sufficiently pleaded to survive a motion to dismiss, apparently lacked basic evidentiary support.” Id. at 6.

While the appellate court “declined[d] to assess the overall legality and wisdom of Lone Pine orders under Ohio law,” under the circumstances presented in the Warman case, the trial court acted within its discretion. Id.