UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

AMOS HOSTETLER, et al., 

Plaintiffs,

v.

JOHNSON CONTROLS, INC., et al.,

Defendants.

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 CAUSE NO: 3:15-cv-226-JD-MGG

OPINION AND ORDER

On August 15, 2016, Defendant, Johnson Controls, Inc. (“JCI”), filed its Motion for

Entry of a Lone Pine Case Management Order. On September 15, 2016, Plaintiffs filed their 

Response in Opposition to JCI’s instant motion for a Lone Pine order. JCI’s instant motion 

became ripe on October 17, 2016, when JCI filed its relevant reply brief. For the reasons stated 

below, the Court denies JCI’s motion. The Court also addresses case management deadlines in 

this case and the appointment of a Special Master for all discovery disputes.

I. RELEVANT BACKGROUND

This a putative class action against JCI and Tocon Holdings, LLC (“Tocon”) arising out 

of alleged environmental contamination originated from a manufacturing plant in Goshen, 

Indiana operated by JCI from approximately 1937 through 2006 and then sold to Tocon in 2007. 

Plaintiffs contend that JCI’s manufacturing process led to the discharge of hazardous chemicals, 

including trichloroethylene (“TCE”), into the ground contaminating groundwater and creating a 

contamination plume that migrated under the surrounding neighborhood. In 1997, JCI entered a 

Voluntary Remediation Agreement (“VRA”) with the Indiana Department of Environmental 

Management (“IDEM”) that established a remediation plan and obligated JCI to produce reports 
2

for public dissemination regarding their remediation efforts. When Tocon purchased the plant, 

they allegedly knew about the contamination, did nothing to stop it, and failed to warn residents 

of its dangers. Moreover, Tocon began demolition of the plant in 2013, which allegedly left 

debris on the property containing other hazardous materials such as asbestos, lead, mercury, and 

PCBs with no measures to prevent further contamination of the soil and groundwater.

Claiming personal injury and property damage, Plaintiffs filed their complaint in this 

action in state court on May 30, 2014, asserting claims arising under state law against JCI and 

Tocon, including common law claims for trespass, nuisance, negligence, negligent infliction of 

emotional distress, and punitive damages along with a statutory environmental legal action 

claim. The complaint seeks compensatory and punitive damages from both defendants as well as

an injunction requiring both defendants to remediate the contamination to non-detect levels. 

Litigation, including discovery, proceeded after the state court denied JCI’s motion to 

dismiss.1

 On January 14, 2015, Plaintiffs filed a motion for class certification asking the Court 

to certify a class on the limited issues of liability and general causation. [DE 30 at 4]. On March 

6, 2015, and at JCI’s request, the state court continued its hearing on the motion for class 

certification until June 30, 2015, and simultaneously appointed Senior Judge Duffin as Special 

Master as to all discovery issues. [DE 11 at 8]. On April 20, 2015, JCI then filed a motion to 

compel asking the Court to order Plaintiffs to produce damages information in response to 

discovery requests that it arguably needed to prepare for the class certification hearing. [DE 178-

30 at 3, 5]. The state court referred JCI’s motion to compel to Special Master Duffin on April 

 1 Tocon is in bankruptcy proceedings and therefore has not been active in this litigation, although it technically 

remains a defendant.
3

21, 2015, [DE 11 at 8]. On May 5, 2015, once the motion to compel was ripe, Judge Duffin held 

a hearing on the motion (hereinafter “Duffin Hearing”).

2

 

In response to JCI’s motion to compel, Plaintiffs argued that JCI’s request for individual 

damages information, in the form of expert TCE dose and duration calculations, was premature 

because Plaintiffs’ pending motion for class certification sought a liability-only class as the first 

phase of litigation to be followed by a damages phase, if necessary after the liability question 

was resolved. [DE 178-30 at 4–5]. In support, Plaintiffs cited to 7-Eleven, Inc. v. Bowens, 857 

N.E.2d 382, 389 (Ind. Ct. App. 2006), in which the court approved of such a bifurcated approach

to a similar environmental class action because “the trial court’s certification of class as to the 

issues of liability and general causation is intended to reduce repetitious litigation and resolve the 

questions that can be applied to the class as a whole.” 

In addition, Plaintiffs contended that the damages information sought by JCI was 

irrelevant to the class certification hearing scheduled in the state court. [DE 178-30 at 5–6]. To 

rebut JCI’s Rule 23 argument that none of the named Plaintiffs would be “typical” of the class 

they intend to represent or “adequate” class representatives, Plaintiffs relied upon Stoll v. Kraft 

Foods Glob., Inc., No. 1:09-CV-0364-TWP-DML, 2010 WL 3613828, at *5 (S.D. Ind. Sept. 6, 

2010), in which the Southern District of Indiana rejected a parallel argument in another toxic tort

case. See also Mejdrech v. Met-Coil Sys. Corp., 319 F.3d 910, 911 (7th Cir. 2003) (“Whether a 

particular class member suffered any legally compensable harm and if so in what dollar amount 

are questions that the judge reserved for individual hearings if and when [defendant] is 

 2 JCI attached an excerpted one-page version of the Duffin transcript to its motion for Lone Pine order. [DE 178-29 

at 3]. On July 20, 2015, the parties attached the entire Duffin transcript as an exhibit to their Joint Report of the 

Parties’ Rule 26(f) Planning Meeting. [DE 29-1]. The substance of JCI’s motion to compel before the state court is 

reflected in Plaintiffs’ response brief dated April 24, 2015, and attached as an exhibit to JCI’s instant motion for 

Lone Pine order. [DE 178-30].
4

determined to have contaminated the soil and water under the class members’ homes in violation 

of federal or state law.”). As for commonality and efficiency, Plaintiffs cited Mejdreck v. 

Lockformer Co., No. 01 C 6107, 2002 WL 1838141, at *3 (N.D. Ill. Aug. 12, 2002), aff’d sub 

nom. Mejdrech., 319 F.3d 910 for the proposition that for class certification, “the characteristics 

of Plaintiffs need not be identical so long as there is a ‘common nucleus of operative fact.’”

At the Duffin Hearing, and presumably in briefing its motion to compel, JCI cited 

multiple cases in which class certification was denied or summary judgment granted because the 

plaintiffs failed to produce sufficient evidence of individual damages, or specific causation. See 

Parko v. Shell Oil Co., 739 F.3d 1083, 1086–87 (7th Cir. 2014); C.W. v. Textron, Inc., No. 3:10 

CV 87 PPS, 2014 WL 4979211, at *3–*6 (N.D. Ind. Oct. 3, 2014), aff’d but criticized sub nom.

C.W. ex rel. Wood v. Textron, Inc., 807 F.3d 827 (7th Cir. 2015); see also Wal-Mart Stores, Inc. 

v. Dukes, 564 U.S. 338, 360 (2011) (holding that Fed. R. Civ. P. 23(b)(2) requires a class to 

share a common contention that is capable of class-wide resolution rather than different remedies 

for each class member). At the hearing, JCI’s counsel also suggested that the state court judge 

had already held that Plaintiffs were required to complete discovery related to all the individual 

plaintiffs, presumably including their damages, by the discovery deadline in December 2015. 

[DE 29-1 at 3–4, 4:17–5:12]. 

On May 28, 2015, before any final order was issued on JCI’s motion to compel and 

before the class certification hearing was held, JCI removed the action to this Court. Plaintiffs 

promptly filed two motions to remand on June 26, 2015 [DE 21] and July 10, 2015 [DE 27]. At 

a preliminary pretrial conference on July 28, 2015, the Court consolidated the motions for 

remand, but refused to stay discovery noting that the Court would establish its own discovery 
5

deadlines and a briefing schedule for Plaintiffs’ motion for class certification if the consolidated 

motion for remand were denied. [DE 32 at 2].

At the same preliminary pretrial conference, Court proposed consolidating this case with 

its sister case, Schmucker v. Johnson Controls Inc., Cause No. 3:14-cv-1593-JD-MGG3, “then 

bifurcating it to have discovery on liability only, leaving discovery as to class action and 

damages pending the Court’s ruling on liability.” [DE 35 at 12–13]. In response to the Court’s 

proposal, the parties presented the identical arguments regarding bifurcation that had been 

central to JCI’s motion to compel before the state court. [DE 35 at 13–17]. As a consequence, 

the Court did not consolidate the two cases or reach any conclusion as to the propriety of 

bifurcation. [DE 32].

On March 29, 2016, while the consolidated motion for remand was under advisement, the 

Court dismissed Plaintiffs’ motion for class certification based on the parties’ agreement that the 

remand issue should be resolved before any consideration of class certification. [DE 110]. 

Accordingly, the Court provided Plaintiffs leave to refile their motion for class certification after 

resolution of their consolidated motion to remand. [DE 110 at 1]. Discovery continued leading 

the parties to file competing discovery motions in an attempt to resolve disputes regarding JCI’s 

failure to produce documents responsive to Plaintiffs’ discovery requests on two issues. [DE 

123, 129, 148, 162]. In addition, JCI filed its first motion for Lone Pine order seeking 

production of the damages information at issue its motion to compel in state court. [DE 166]. 

On July 11, 2016, the Court denied the consolidated motion to remand. [DE 167]. 

 3 The Schmucker Plaintiffs initiated their case in this Court rather than in state as the Hostetler Plaintiffs did because 

they raised a claim under the federal Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6901 et seq. 

The Schmucker RCRA claim is based on overlapping facts related to the JCI site in Goshen, but does not include 

any claims for personal injury that may have been proper in state court.
6

With the motion to remand resolved, the Court denied without prejudice the pending 

discovery motions and JCI’s original motion for Lone Pine order with leave to refile should the 

parties fail to resolve their disputes. [DE 171]. With parts of their disputes resolved, Plaintiffs 

filed three motions to compel and one motion for leave to file newly discovered evidence 

regarding one of the motions to compel. [DE 177, 184, 201, 204]. JCI filed the renewed motion 

for Lone Pine order at issue here on September 15, 2016. [DE 178]. JCI later filed a cross 

motion for protective order related to one of Plaintiffs’ motions to compel. [DE 212]. None of 

Plaintiffs’ pending motions nor JCI’s pending motion for protective order address the issue of 

Plaintiffs’ production of damages evidence as raised by JCI in its motion to compel before the 

state court.4 Instead, JCI seeks production of that same damages evidence through its Lone Pine

motion. The briefing of the current Lone Pine motion argues the same issues related to the 

timing and scope of class certification and bifurcation raised before the state court and Special 

Master Duffin in May 2015.

II. ANALYSIS

A. Lone Pine Legal Standard

Lone Pine orders are named after the 1986 environmental contamination case from which 

they originated. Lore v. Lone Pine Corp., No. L-33606085, 1986 WL 637507 (N.J. Super. Ct. 

Law Div. Nov. 18, 1986). Lone Pine orders are case management orders, used typically in 

complex mass tort litigation, that require plaintiffs to produce prima facie evidence in support of 

their claims or risk dismissal of their case. Id. at *1–*3. While the Seventh Circuit has yet to 

address the proper role of Lone Pine orders, other circuits have and district courts within this 

Circuit have applied those principles.

 4 Notably, the identical motions were filed in Schmucker and remain pending. [3:14-cv-1593-JD-MGG, DE 193, 

195, 207, 210, 219].
7

“The basic purpose of a Lone Pine order is to identify and cull potentially meritless 

claims and streamline litigation in complex cases involving numerous claimants, such as this 

one.” Baker v. Chevron USA, Inc., No. 105-CV-227, 2007 WL 315346, at *1 (S.D. Ohio Jan. 

30, 2007). “In the federal courts, [Lone Pine] orders are issued under the wide discretion 

afforded district judges over the management of discovery under Fed. R. Civ. P. 16.” Acuna v. 

Brown & Root Inc., 200 F.3d 335, 340 (5th Cir. 2000) (affirming district court’s discretion to 

manage complex tort litigation and the court’s specific use of a Lone Pine order where 

“information regarding the nature of [the plaintiff’s] injuries, the circumstances under which he 

could have been exposed to harmful substances, and the basis for believing that the named 

defendants were responsible for his injuries” were lacking in the plaintiff’s complaint). Indeed, 

Fed. R. Civ. P. 16(c)(2)(L) explicitly permits the court to “consider and take appropriate action 

on . . . [the adoption of] special procedures for managing potentially difficult or protracted 

actions that may involve complex issues, multiple parties, difficult legal questions, or unusual 

proof problems.”

Yet Lone Pine orders are also viewed as extraordinary remedies that should be issued 

only in exceptional cases “after the defendant has made a clear showing of significant evidence 

calling into question the plaintiffs’ ability” to produce evidence to establish the critical elements 

of causation and damages. McManaway v. KRB, Inc., 265 F.R.D. 384, 388 (S.D. Ind. 2009); but 

see In re Vioxx Prods. Liab. Litig., 557 F. Supp 2d 741, 743 (E.D. La. 2008) (citing district court 

cases in the Second, Fifth, and Eighth Circuits suggesting that Lone Pine orders are routine in 

mass tort litigation). Regardless of how regularly they are used, all Lone Pine orders should 

balance efficiency and equity because they provide “a tremendous advantage to defendants 

wishing to dispose of frivolous claims quickly.” Id. at 385 (quoting James P. Muehlberger & 
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Boyd S. Hoekel, An Overview of Lone Pine Orders in Toxic Tort Litigation, DEF. COUNS. J. 366, 

367 (2004). In light of this clear benefit to defendants, “[s]ome courts have entered [Lone Pine] 

orders only after a state or federal agency has issued a report that either provides much of the 

information called for in the order or undercuts the plaintiffs’ claim for personal injuries.” Id.

(quoting Muehlberger & Hoekel, supra, at 370).

Furthermore, Lone Pine orders have been criticized because they give “courts the means 

to ignore existing procedural rules and safeguards.” Simeone v. Girard City Bd. of Educ., 872 

N.E.2d 344, 350 (2007). Accordingly, courts should be careful to avoid Lone Pine orders when 

they “cut[] off or severely limit[] the litigant’s right to discovery [or] closely resemble[] 

summary judgment.” Id. With these caveats in mind, courts generally consider the following 

five factors when deciding whether to impose a Lone Pine order: “(1) the posture of the action, 

(2) any peculiar case management needs of the case, (3) external agency decision that may bear 

on the case, (4) the availability, by statute or rule, of other procedural devices, and (5) the type of 

injury alleged and its causes.” Adkisson v. Jacobs Eng’g Group, Inc., Nos. 3:13-CV-505-TAVHBG, 3:13-CV-666-TAV-HBG, 3:14-CV-20-TAV-HBG, 3:15-CV-17-TAV-HBG, 3:15-CV274-TAV-HBG, 3:15-CV-420-TAV-HBG, 3:15-CV-460-TAV-HBG, 3:15-CV-462-TAV-HBG, 

2016 WL 4079531, at *3 (E.D. Tenn. July 29, 2016); Trujillo v. Ametek, Inc., CASE NO. 3:15-

cv-1394-GPC-BGS, 2016 WL 3552029, at *2 (S.D. Cal. June 28, 2016); In re Digitek® Prod. 

Liab. Litig., 264 F.R.D. 249, 256 (S.D. W. Va. 2010).

B. Issue Presented in JCI’s Motion for Lone Pine Order

Here, JCI contends that exceptional circumstances warrant a Lone Pine order in this case. 

According to JCI, Plaintiffs’ complaint does not articulate the specific injuries to the named 

Plaintiffs based on their exposure to the toxic chemicals migrating from the JCI site. Citing 
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environmental reports and deposition testimony from the named Plaintiffs, JCI asserts that 

Plaintiffs have produced virtually no evidence of cognizable personal injury. Moreover, JCI 

contends that some of the named Plaintiffs could not have suffered illness or disease as the result 

of TCE exposure because they were never exposed to TCE in the groundwater and the air. 

Similarly, JCI argues that some of the named Plaintiffs could not have suffered from decreased 

property values because they do not own the homes where they were allegedly exposed to the 

toxic chemicals.

JCI rejects the named Plaintiffs’ explanation that they need not conduct expert discovery 

to determine the dose and duration of exposure of each named Plaintiff at this stage of litigation. 

As alluded to above, Plaintiffs contend that efficiencies will be gained if this case proceeds in a 

bifurcated manner. Citing 7-Eleven, Inc., 857 N.E.2d at 395 and Mejdrech, 319 F.3d at 912 in 

support, Plaintiffs indicate their intent to seek class certification on and resolve the issues of 

liability and general causation only before turning to discovery and litigation related to the 

specific damages of the named Plaintiffs. Plaintiffs recommend such staged litigation to avoid 

the expensive dose and duration discovery and litigation should the Court find no liability and 

general causation on Defendants’ part for the class’s exposure to toxic chemicals.

As JCI correctly notes, the issue of bifurcation, although raised multiple times in this 

litigation, has not yet been decided by this Court. Moreover, there is no related motion for class 

certification currently before the Court and no case management order has been issued to create 

the staged litigation Plaintiffs seek. Plaintiffs explain that they have yet to file another motion 

for class certification because they are considering the possibility of another motion to remand. 

Regardless, JCI opposes the bifurcated case management plan Plaintiffs argue is 

warranted in this case. JCI contends that neither the Court nor a jury can reach any conclusion 
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about liability and general causation if there is no evidence of damages on the part of the named 

Plaintiffs. As noted by JCI, the elements of a toxic tort claim under Indiana law include (1) 

actual exposure to a toxic chemical; (2) actual personal injury; (3) general causation or “whether 

a particular agent can cause a particular illness,” and (4) proximate causation or “whether the 

agent in fact caused the particular plaintiff’s illness.” Aurand v. Norfolk S. Ry. Co., 802 F. Supp. 

2d 950, 953 (N.D. Ind. 2011); see also C.W. v. Textron, Inc., No. 3:10 CV 87 PPS, 2014 WL 

1047940, at *7 (N.D. Ind. Mar. 17, 2014), aff’d sub nom. C.W. ex rel. Wood v. Textron, Inc., 807 

F.3d 827 (7th Cir. 2015); Pardue v. Perdue Famrs, Inc., 925 N.E.2d 482, 487 (Ind. Ct. App. 

2010); Hannan v. Pest Control Servs., Inc., 734 N.E.2d 674, 685 (Ind. Ct. App. 2000). Based on 

the alleged lack of any evidence of damages combined with Plaintiffs’ refusal to conduct the 

dose and duration expert discovery before class certification, JCI now asks the Court to propel 

this case forward by entering a Lone Pine order requiring the named Plaintiffs to produce prima 

facie evidence of their injuries and the causation of those injuries. JCI argues that a Lone Pine 

order will streamline litigation of this complex tort case, which it contends cannot be resolved in 

Plaintiffs’ favor without evidence of Plaintiffs’ actual exposure and their actual injuries as well 

as evidence linking the injuries to the exposure. 

While the Court’s decision on JCI’s motion for Lone Pine order, regardless of its 

outcome, will affect the availability of Plaintiffs’ preferred bifurcated litigation strategy going 

forward, there is no need for the Court to decide directly whether bifurcation is appropriate in 

this case in order to decide whether the requisite exceptional circumstances justify a Lone Pine 

order. Analysis of the Lone Pine factors alone, as shown below, demonstrates that this case does 

not present sufficiently exceptional circumstances to warrant a Lone Pine order.
11

C. Lone Pine Factors Analysis

1. Posture of Action

Lone Pine orders are “disfavored in the early stages of the proceedings where no 

meaningful discovery has taken place.” Adkisson, 2016 WL 4079531, at *4 (citing Simeone, 872 

N.E.2d at 352). Moreover, Lone Pine orders should issue only “after the defendant has made a 

clear showing of significant evidence calling into question the plaintiffs’ ability to bring forward 

necessary medical causation and other scientific information.” McManaway, 265 F.R.D. at 388.

In this case, discovery has been underway since before this case was removed to this 

Court in May 2015. In addition, discovery did not stop even while Plaintiffs’ consolidated 

motion to remand was being decided. Despite clear evidence that this case is no longer in its 

earliest stages, insufficient meaningful discovery has occurred on the issue of individual 

damages because of Plaintiffs’ litigation strategy pursuing remand followed by class certification 

and bifurcation to address the issues of liability and general causation first. As shown in the 

transcript of the discovery hearing before Special Master Duffin in early May 2015 before 

removal, the question of the propriety of bifurcation was to be resolved in the state court’s class 

certification analysis. Similarly, bifurcation is better decided in conjunction with the class 

certification analysis still anticipated more than 18 months later.

Furthermore, JCI has not made a clear showing of significant evidence to show that 

Plaintiffs cannot present sufficient medical causation and other scientific information to succeed 

on their toxic tort claim. See id. JCI has cited to the current quantum of evidence in the record, 

which includes environmental reports, Plaintiffs’ deposition testimony, and Plaintiffs’ medical 

records in an attempt to show Plaintiffs’ inability to produce evidence of damages. Yet JCI 

cannot, at this time, show that any dose and duration expert discovery Plaintiffs could present 
12

would preclude liability. Additionally, no discovery deadline has been set by this Court since the 

consolidated motion to remand was denied and the class certification process, which will resolve 

the bifurcation question, remains undecided. 

Lastly, by filing its motion for Lone Pine order, JCI essentially asks this Court to compel 

production of discovery from Plaintiffs for a second time. The arguments presented to Special 

Master Duffin during the state court proceedings duplicate those raised here. Special Master 

Duffin may not have issued a final disposition of JCI’s motion to compel. He did, however, 

essentially state that Plaintiffs cannot produce information they do not have. [See DE 29-1 at 10, 

31:20–32:24; 12, 37:23–25]. From that, Special Master implied that JCI should pursue summary 

judgment when he stated that “[i]f they’ve given you everything they have and it’s not adequate 

to survive a summary judgment, you [JCI] win.” [DE 29-1 at 12, 38:2–4]. Nothing in the instant 

motion for Lone Pine order convinces this Court that Special Master Duffin’s assessment of the 

procedural posture in this case has changed.

Therefore, the first factor weighs against a Lone Pine order.

2. Peculiar Case Management Needs

“Courts are generally more inclined to issue Lone Pine orders in cases involving 

hundreds or more plaintiffs and/or defendants.” Adkisson, 2016 WL 4079531, at *5. This case 

has its complexities, but it does not involve hundreds of plaintiffs at this time. Therefore, the 

case remains manageable without the dramatic imposition of a Lone Pine order. 

Moreover, a Lone Pine order “should not be considered a substitute for or another species 

of a motion for summary judgment.” McManaway, 265 F.R.D. at 388. As discussed above, JCI 

appears to be seeking a Lone Pine order as an alternative to the summary judgment process to 

address Plaintiffs’ failure to produce what it believes to be dispositive information about 
13

individual injuries and damages. As such, JCI has not shown that this case has peculiar enough 

case management needs to justify a Lone Pine order.

3. External Agency Decisions that May Affect Merits

Decisions of external regulatory agencies that sound the “all clear,” or otherwise show no 

exposure or possibility of injury from any exposure, could support entrance of a Lone Pine order. 

In re Digitek, 264 F.R.D. at 259. Here no such “all clear” has sounded. JCI entered a Voluntary 

Remediation Agreement with IDEM to counteract clear contamination and avoid further 

regulatory sanctions. JCI maintained its remediation efforts for years and even monitored

remediation after Tocon purchased the Site. There is no regulatory decision that suggests there is 

no contamination or that injury could not be caused by the toxic chemical in the contamination 

plume. As such, this Court cannot ascertain at this point what effect IDEM’s efforts will have on 

the merits of this case. Therefore, like in Adkisson, this factor neither favors nor disfavors a 

Lone Pine order. See 2016 Wl 4079531, at *6.

4. Availability of Other Procedural Devices

“Resorting to crafting and applying a Lone Pine order should only occur where existing 

procedural devices explicitly at the disposal of the parties by statute and federal rule have been 

exhausted or where they cannot accommodate the unique issues of this litigation.” In re Digitek, 

264 F.R.D. at 259. Here, JCI has not exhausted the range of normal procedural mechanisms 

available to it to address what it perceives to be Plaintiffs’ deficient discovery production. As 

already discussed, summary judgment is an option that JCI has not pursued. “[S]ummary 

judgment is the ‘put up or shut up’ moment in a lawsuit, when a party must show what evidence 

it has that would convince a trier of fact to accept its version of events.” Johnson v. Cambridge 

Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003) (internal quotations and citations omitted). 
14

Instead of using this procedural mechanism to hold Plaintiffs accountable for its alleged evidence 

shortfall, JCI pursues a very unusual Lone Pine order. Instead of requesting that the Court propel 

the class certification process forward, JCI filed the instant motion. Both JCI’s and Plaintiffs’ 

energies devoted to the instant Lone Pine order could have more effectively narrowed the scope 

of this litigation through those existing procedural devices. Therefore, this factor weighs against 

a Lone Pine order as well.

5. Type of Injuries Alleged and Their Causes

When causation is likely to be “highly contentious and involve much expert testimony[,] 

Daubert hearings and motion in limine practice are available to challenge such evidence.” 

Adkisson, 216 WL 4079531, at *7 (citations omitted). The parties here agree that the specific 

causation element requires, at the very least, expert discovery on the dose and duration of 

Plaintiffs’ alleged exposure to the toxic chemicals. Expert medical evidence is also likely to be 

central to the litigation of this case. Indeed, this evidence of the named Plaintiffs’ specific 

injuries and their cause is exactly what JCI seeks through the instant motion. On the other side, 

Plaintiffs wish to delay this allegedly important and expensive expert discovery until they are 

certain that the case will proceed on the merits to the point where it is needed. Given the key 

role that this expert evidence is likely to play, Plaintiffs’ type of alleged injuries and their causes 

weight against a Lone Pine order.

6. Lone Pine Order is Not Warranted

As shown above, none of the five Lone Pine factors favor issuance of a Lone Pine order. 

The Court is most convinced that other procedural mechanisms—especially motions for 

summary judgment, the class certification process, Daubert motions, and motion in limine—exist 
15

for JCI to use to address what it perceives to be Plaintiffs’ failure to prove its case. Therefore, 

the Court declines to issue a Lone Pine order as JCI requests.

D. Appointment of Special Master

As stated above, the state court appointed Senior Judge Duffin as Special Master as to all 

discovery issues in an order dated March 6, 2015. [DE 11 at 8]. Special Master Duffin then held 

a hearing regarding JCI’s motion to compel on May 5, 2015. [DE 29-1]. This Court sees no 

evidence that Special Master Duffin’s appointment was ever vacated in state court or in this 

Court since removal. Yet even though the parties have appeared before this Court on multiple 

occasions, they have not mentioned the appointment of Special Master Duffin. The parties’ 

omission is particularly striking given the extent of discovery disputes now pending before this 

Court and this Court’s admonition in its order dated July 19, 2016, that

in comparison to other similarly complex cases, this Court has spent an inordinate 

amount of time sifting through the parties’ multiplicity of filings [and] [s]hould 

future filings confirm that the parties cannot manage discovery effectively on 

their own, the Court will pursue appointing a special master to resolved any 

discovery disputes all at the expense of the non-prevailing party as allowed under 

Fed. R. Civ. P. 53(a)(1)(C) and 53(g).

[DE 171 at 5].

Therefore, the Court ORDERS the parties to file a joint status report by February 8, 

2017, (1) informing the Court of the status of Special Master Duffin’s appointment to address 

discovery disputes in this case; (2) showing cause why the parties have not used Special Master 

Duffin’s services in the multitude of discovery disputes raised in this action since it was 

removed; and (3) reporting any objection from any party in using Special Master Duffin to 

resolve the pending, and any future, discovery disputes before the Court. The Court 

acknowledges that the pending discovery motions are identical to those filed simultaneously in 

Schmucker v. Johnson Controls, Inc. As a result, the parties’ joint status report should reflect the 
16

Schmucker Plaintiffs’ position on the use of Special Master Duffin going forward. The Court 

will not consider the pending discovery motions [Schmucker, DE 193, 195, 207, 210, 219; 

Hostetler, DE 177, 184, 201, 204, 212] until either Special Master Duffin addresses the motions 

or the parties convince the Court to vacate Special Master Duffin’s appointment.

III. CONCLUSION

For the reasons discussed above, the Court DENIES JCI’s motion for Lone Pine order. 

[DE 178]. The Court REMINDS the parties of their ongoing obligation under Fed. R. Civ. P. 

26(e) to supplement its production of information responsive to propounded discovery requests.

The Court also ORDERS the parties to submit a joint status report by February 8, 2017, 

(1) informing the Court of the status of Special Master Duffin’s appointment to address 

discovery disputes in this case; (2) explaining why the parties have not used Special Master 

Duffin’s services in the multitude of discovery disputes raised in this action since it was 

removed; and (3) reporting any objection from any party, including the Schmucker Plaintiffs, in 

using Special Master Duffin to resolve all pending and future discovery disputes in both the 

Schmucker and Hostetler actions. The Court DIRECTS the Clerk to file a copy of this order in 

Schmucker v. Johnson Controls, Inc., 3:14-cv-1593-JD-MGG.

Lastly, the Court acknowledges that on September 12, 2016, the parties filed their Report 

of Rule 26(f) Planning Meeting in compliance with this Court’s order dated August 30, 2016. 

[DE 191]. Based on the parties’ agreement reflected in that Report, the deadline for the close of 

fact discovery is now SET for June 30, 2017. Given the remaining dispute as to class 

certification and bifurcation, the Court will not set any other case management deadlines at this 

time. The Court ORDERS the parties to submit a revised case management plan no later than 

May 1, 2017, which shall contain the following: (1) an recitation of the effects of Plaintiffs’ 
17

anticipated motion to remand and motion for class certification on discovery; (2) an outline of 

the parties’ remaining discovery needs; and (3) recommendations for case management deadlines 

going forward.

SO ORDERED.

Dated this 25th day of January, 2017.

s/Michael G. Gotsch, Sr.

Michael G. Gotsch, Sr.

United States Magistrate Judge