California Court Makes it Harder for Defense to Defeat Motions for Trial Preference

A recent California Court of Appeal case, Ellis v. Superior Court, adds another challenge for defendants opposing a motion for trial preference in an asbestos case. Ellis dilutes the standard and shuts down ways for litigants to attack motions for preference.

California requires a court to grant trial preference and set the case for trial within 120 days if the moving party is over 70 years old, has a substantial interest in the case, and his or her “health . . . is such that a preference is necessary to avoid prejudicing the party’s interest in the litigation.”

Plaintiff David Ellis moved for trial preference. It was based on Ellis’s declaration that he was age 75 and suffering from asbestos-related metastatic kidney cancer, pleural disease from exposure to asbestos-containing materials, and a host of other related illnesses. The motion was accompanied by declarations from Ellis’s attorney and expert, a cardiologist. The trial court denied Ellis’s motion for preference, ruling that the expert was not qualified to opine as to Ellis’s condition (in contrast to, for example, the oncologist who regularly saw Ellis). The court also ruled that the records considered by the expert were undated and vague.

The California Court of Appeal vacated the trial court’s decision as an abuse of discretion. The Court of Appeal found that the trial court “overlooked undisputed, convincing evidence” that the expert had extensive experience in internal medicine and was therefore qualified to opine on Ellis’s condition. The court so ruled even though the expert last examined Ellis in 2016, two years before the motion for preference. The court also found that even though the expert only vaguely described the medical records in his declaration, that was enough: “[H]is 2016 report and his declaration identifies and discusses a number of the extensive records and tests he administered and/or considered” in treating Ellis.

The Ellis decision further lowers the bar for preference. The same court recently decided Fox v. Metalclad Insulation, LLC,  which also reversed a trial court’s denial of plaintiff’s motion for preference. The defense in Fox argued that plaintiff’s declarations failed to demonstrate that plaintiff’s health necessitated the granting of preference. The defense in Ellis did not dispute the severity of Ellis’s illness, but that Ellis’s showing of preference was insufficient. In Ellis, the expert’s declaration lacked the right type of medical foundation and was based on his examination of Ellis from two years earlier. However, the court’s decision indicates that plaintiffs can have any doctor submit a declaration, and can rely on vaguely-described medical records without plaintiff undergoing an updated medical examination.

Ellis is (at least for now) an unpublished opinion, which is helpful to defendants because plaintiffs cannot cite it as precedent in California courts. Nevertheless, Ellis tells us where the courts are going on preference issues.