An Overview of Asbestos Litigation in California

• Publication year: 2016
• Author: By Nick Martin

An Overview of Asbestos Litigation in California

By Nick Martin

Asbestos litigation remains a complex and relentless mainstay of the California judicial landscape. Hundreds of new cases are filed each year, predominantly in San Francisco, Alameda, and Los Angeles counties, by a growing assortment of plaintiffs' attorneys against an ever-expanding pool of defendants. Each of these counties has a department dedicated to asbestos cases and its own set of case management orders that bring a level of uniformity to an otherwise chaotic environment. Some of the current controversies and challenges in asbestos litigation include expedited trial dates, "take home" exposure cases, punitive damages claims, and discovery of bankruptcy trust claims. Each of these items is considered in due course below.

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Trial in 120 Days Are You Ready?

Expedited trial dates are commonplace to a degree not seen in other arenas. Plaintiffs suffering from mesothelioma or other malignancies generally move for a preferential trial date very shortly after the initial complaint is filed. Such motions may be brought on several grounds. Some mandate trial preference if established, and others leave courts discretion. Preference "shall" be granted for plaintiffs 70 and older with a "substantial interest" in the action if an early trial is "necessary" to prevent prejudicing that party's interest. (Code Civ. Proc., § 36(a).) In contrast, courts have "discretion" to grant an expedited trial date if "clear and convincing medical documentation" "concludes" that the plaintiff has "substantial medical doubt of survival" beyond six months. (Code Civ. Proc., § 36(d).) A catch-all provision also permits trial preference on a discretionary basis where the motion "satisfies the court that the interests of justice will be served by granting this preference." (Code Civ. Proc., § 36(e).) If the motion is granted, trial must be set within 120 days of the hearing, with only a limited possibility of a 15-day continuance. (Code Civ. Proc., § 36(f).)

Plaintiffs' ability to reach a jury trial within six months of filing remains one of the most significant procedural events in asbestos actions. Defendants must carefully scrutinize the moving papers to determine whether the claimed diagnosis and prognosis are supported and whether the records are sufficiently recent. Defendants should consider objections to incomplete, stale, misleading, or substantially redacted records or declarations. Even if a court denies such a motion, it may set a relatively early, but not expedited, trial date with case management abilities not permitted under the rigid preference statutes. (See Code Civ. Proc., § 36(f).)

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If preference is granted, counsel should request that the court enter a case management order that resolves many preventable issues to avoid the need for frequent case management conferences and unending meet and confer efforts. Such orders may address a variety of topics, including that (1) plaintiffs produce authorizations for the release of medical, employment, union, military, bankruptcy trust, workers' compensation, Social Security, Employment Development Department, and Medicare/Medi-Cal records; (2) expert demands be deemed served; (3) dispositive motions may be heard within 30 days of the trial date on a shortened notice schedule; and (4) deadlines be set for expert disclosures, the close of discovery, motions in limine, jury instructions, exhibit and witness lists, and other pretrial documents. Anticipated issues concerning discovery motions, expert depositions, and the exchange of tissue and pathology samples also may be addressed.

A trial preservation deposition of the plaintiff will soon follow, almost invariably noticed by...