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Appeals from the United States District Court for the Southern District of Florida. D.C. Docket Nos. 9:10-cv-80840-KLR, 9:10-cv-80883-KLR.
For Joseph Adinolfe, Regnier Alexis, Dieula Alexis, Fruid Alty, Ketley Alty, Horacio Alvarez, Stepha Antoine, D. Perez, Guadalupe Perez, Mary Anne Perez, Sigfrido Perez, Jannette Arias, Gregory Arias, Margarita Alfonso, William Bahl, Michael Bald, Elizabeth Bald, Monica Bianchi, Nicola Barry, Plaintiffs - Appellants (12-16396): Bryan Scott Gowdy, Jennifer Shoaf Richardson, Creed & Gowdy, Jacksonville, FL; Jonathan R. Gdanski, Scott P. Schlesinger, Schlesinger Law Offices, PA, Fort Lauderdale, FL; Craig R. Zobel, Law Offices of Craig R. Zobel, PA, Palm Beach Gardens, FL.
For United Technologies Corporation, d.b.a.: Pratt & Whitney (12-16396, 12-16397), Defendant - Appellee: Jack J. Aiello, Gregor J. Schwinghammer Jr., Gunster Yoakley & Stewart, PA, West Palm Beach, FL.
For Magaly Pinares, Marcos Pinares, Plaintiffs - Appellants (12-16397): Bryan Scott Gowdy, Jennifer Shoaf Richardson, Creed & Gowdy, Jennifer Shoaf Richardson, Jacksonville, FL; Jonathan R. Gdanski, Scott P. Schlesinger, Schlesinger Law Offices, PA, Fort Lauderdale, FL; Craig R. Zobel, Law Offices of Craig R. Zobel, PA, Palm Beach Gardens, FL.
Before PRYOR and JORDAN, Circuit Judges, and FRIEDMAN,[*] District Judge.
JORDAN, Circuit Judge:
These consolidated appeals concern the dismissal with prejudice, under Federal Rule of Civil Procedure Rule 12(b)(6), of the second amended complaints filed in two related toxic tort cases asserting common-law and statutory claims under Florida law. Given the posture of these appeals, one would have expected the parties' briefs to focus exclusively on whether the allegations in the complaints stated claims for relief under the pleading standards set forth in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and its progeny. The briefs, however, go well beyond what is alleged in the complaints, and in part rely on and clash over the expert testimony and evidence presented bye the parties pursuant to the district court's Lone Pine scheduling order. See, e.g., Br. for Appellants at 13-18, 20-24, 25-27, 42-44, 45; Br. for Appellee at 2-11, 12-14, 21-22, 29-33, 35, 39-41.
Given the analytical difficulties caused by the parties' schizophrenic presentations on appeal, we begin by explaining why a Lone Pine order like the one entered in this case should not be used as a pre-discovery case management tool before a district court rules on the legal sufficiency of a complaint. Turning to the merits of the district court's dismissal orders, we reverse.
In two consolidated toxic tort cases ( Pinares and Adinolfe ), hundreds of property owners in a residential area in Palm Beach County known as " The Acreage" sued United Technologies Corporation d.b.a. Pratt & Whitney, an aircraft and rocket engine manufacturer, for damages resulting from purported groundwater contamination. In their complaints, the plaintiffs alleged that P& W discharged various toxic chemicals into the soil and groundwater at a plant located some six miles north of The Acreage. The plaintiffs claimed that these chemicals migrated to The Acreage via the southward-flowing aquifer underlying both the P& W plant and The Acreage, that one plaintiff developed cancer as a result of the contamination, and that the property values of the other plaintiffs in The Acreage declined as a result of the perceived health risks of the contamination.
The plaintiffs initially asserted Florida common-law claims sounding in negligence, negligence per se, strict liability, trespass, and nuisance, as well as a statutory claim under Fla. Stat. § 376.313. In Pinares, the plaintiff (who alleged that she had developed cancer as a result of the contamination) and her husband sought damages for personal injury and loss of consortium, while in Adinolfe the plaintiffs
generally claimed damages for diminution in the value of their property.
In January of 2011, the district court dismissed the initial complaints in Pinares and Adinolfe without prejudice. It ruled, in relevant part, that the plaintiffs had not alleged that their properties were actually contaminated, had not identified the alleged contaminant, and had not sufficiently alleged that any harm (to person or property) was caused by P& W. See, e.g., Adinolfe v. United Technologies Corp., No. 10-80840, 2011 WL 240470 (S.D. Fla. Jan. 18, 2011). The plaintiffs then filed amended complaints in both cases.
After it moved to dismiss the initial complaints, P& W asked the district court to enter a Lone Pine case management order in the two cases. The plaintiffs objected, arguing in part that they should not be required to submit prima facie proof of their claims before discovery, that the requested order served as an improper substitute for summary judgment, and that the Federal Rules of Civil Procedure counseled against granting P& W's request. At around the same time that it granted the motions to dismiss the initial complaints, the district court granted the motions for the Lone Pine case management orders. The district court explained that it was " neither efficient nor fair" to require P& W to " proceed on the issues implicated" by the plaintiffs' requested discovery until after the plaintiffs " ha[d] adequately demonstrated a prima facie basis for the allegations in their complaint." Pinares v. United Techonologies Corp., No. 10-80883, 2011 WL 240512, at *2 (S.D. Fla. Jan. 10, 2011).
In its subsequent Lone Pine orders, the district court stayed all discovery and required the plaintiffs to provide, within 60 days, " all evidence they contend supports the prima facie elements of contamination and causation" for the property damages claims. Such evidence included, but was not limited to, disclosure of any testing for contaminants conducted on each plaintiff's property, and disclosure of any contaminants found on each plaintiff's property (as well as information about when they were found).
The Lone Pine orders also required the plaintiffs to submit " sworn statements of an expert or experts" with opinions (and the factual bases for any opinions) on a number of factual issues: (i) whether particular parcels owned by the plaintiffs contained hazardous contaminants; (ii) whether particular parcels owned by the plaintiffs were contaminated; (iii) whether P& W caused contamination on a particular parcel owned by a plaintiff or plaintiffs; (iv) what materials or substances allegedly caused the contamination to each plaintiff's parcel, including the toxicological, medical, or other basis for the allegation that the presence of the alleged contaminant poses a risk to human health or otherwise causes each plaintiff to suffer damage; and (v) the value of each plaintiff's property after the claimed date of contamination. The orders further provided that P& W could, within 60 days of receiving the plaintiffs' evidence, " file a motion directed to whether [the plaintiffs] complied with this order."
Predictably, P& W did not think that the plaintiffs provided the information required by the district court's Lone Pine orders, so it filed motions to dismiss for failure to comply with those orders. In its motions, P& W did not simply address the plaintiffs' alleged failure to comply with the Lone Pine orders; it also challenged the opinions of the plaintiffs' experts, arguing in part that the experts failed to show
that water traveled from P& W to The Acreage or that the water at The Acreage was below national and state drinking water standards. In support of its motions to dismiss, P& W submitted and relied on two expert affidavits of its own (one from a toxicologist and the other from a hydrologist) " to set out the regulatory standards, where appropriate, and to provide information that [the plaintiffs'] experts did not include."
Just as predictably, the plaintiffs argued in their responses that they had complied with the Lone Pine orders, that the orders did not require the testing of groundwater under each plaintiff's property, and that the orders did not prevent their experts from using extrapolative techniques to form their opinions. They pointed out that drilling a test well on each of the 17,000 parcels of property in The Acreage, combined with the concomitant laboratory analysis of each sample of groundwater, would cost about $382 million. The plaintiffs also argued that P& W could not attempt to litigate factual issues such as contamination and causation by submitting its own expert affidavits:
" By attempting to turn its [m]otion to [d]ismiss into a dispositive motion on the merits, or a Daubert hearing, P& W is unfairly exploiting and further abusing the already oppressive (and in this case inappropriate) Lone Pine process. If P& W's [m]otion to [d]ismiss is to be resolved based on the affidavits of the parties' experts, [the] [p]laintiffs' due process rights are violated as they would be deprived of the benefits and protections afforded by mutual discovery under Rules 26 through 37, formal notice, a formal summary judgment motion under Rule 56, and an evidentiary hearing under Daubert."
Nevertheless, the plaintiffs hedged their bets by submitting supplemental declarations from some of their own experts to counter the affidavits of P& W's experts.
In reply, P& W argued that, " [b]efore proceeding with this alleged toxic tort case, [the] [p]laintiffs must show that their properties are contaminated and that [P& W] caused the contamination." P& W also asserted that the opinions of the plaintiffs' experts were shown to be deficient by the analyses and reports of P& W's own experts, that a showing of actual contamination was required by Florida law, and that it was not seeking a battle of the experts at the Lone Pine stage of the case, but merely submitting " expert affidavits to provide information that [the] [p]laintiffs simply did not provide--for example, the results of [state] testing dozens of Acreage wells and finding clean, uncontaminated water in the middle of . . . alleged plumes [identified by one of the plaintiffs' experts]." Yet, in apparent contradiction to this statement, P& W went on to argue, relying on its own expert witnesses, that the level of trihalomethanes (a type of contaminant) in the water in The Acreage was " well within safe water drinking standards," and that the water from P& W, contrary to the plaintiffs' allegation, " flows east then north to the C18 canal, then north into the Loxahatchee River away from [T]he Acreage." 
At a hearing on P& W's motions to dismiss the plaintiffs' amended complaints,
the district court told the parties several times that it did not want to discuss the expert testimony and evidence contained in the Lone Pine filings, and was just going to determine whether the complaints stated claims for relief under cases like Twombly. Nevertheless, during the hearing, the district court and the parties frequently strayed beyond the four corners of the complaints and discussed the expert testimony and factual submissions contained in the Lone Pine filings.
In March of 2012, following the hearing, the district court entered orders dismissing the amended complaints in Pinares and Adinolfe without prejudice. The plaintiffs then filed second amended complaints in both cases, asserting common-law claims for strict liability, negligence, and nuisance, as well as a statutory claim under Fla. Stat. § 376.313(3). The second amended complaint in Pinares contained an additional claim for loss of consortium, while the second amended complaint in Adinolfe divided the plaintiffs into three proposed groups based on whether their property was currently contaminated (the " contamination" plaintiffs), close to the contaminated area (the " proximity" plaintiffs), or soon-to-be contaminated (the " anticipated contamination" plaintiffs).
The district court later dismissed the second amended complaints, this time with prejudice. The plaintiffs now appeal. Before addressing the sufficiency of the complaints, we discuss the district court's Lone Pine orders.
District courts have " broad discretion in deciding how best to manage the cases before them," Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1366 (11th Cir. 1997) (quotation omitted), and Rule 16(c)(2)(L) of the Federal Rules of Civil Procedure allows district courts 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." Lone Pine orders, in the words of the Fifth Circuit, are " designed to handle the complex issues and potential burdens of defendants and courts in mass tort litigation." Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). They usually require plaintiffs in mass tort cases to provide some factual support, including expert testimony, for their claims or run the risk of having those claims dismissed. See Lone Pine, 1986 WL 637507, at *3-4; David Herr, Annotated Manual for Complex Litigation Fourth § 11.34, at 49 (Westlaw database updated May 2014).
A couple of our sister circuits have spoken favorably about Lone Pine orders. See Acuna, 200 F.3d at 338-40; Abuan v. Gen. Elec. Co., 3 F.3d 329, 331 (9th Cir. 1993). But there is a time and place for everything, cf. New American Bible, The Book of Ecclesiastes 3:1 (Oxford 1990), and " even when ...