California Appellate Court Overturns Alameda Judge’s Denial of Motion for Preference Given “Absence of Contrary Evidence”

A recent decision suggests that opposing motions for California trial preference by an allegedly dying plaintiff over 70 may have just gotten more difficult.

Frequently, defendants oppose such motions by attacking the specificity or foundation of the supporting doctor’s declaration. In Boyd v. 3M, Alameda Superior Court asbestos coordination Judge Jo-Lynne Q. Lee denied a motion for preference because she found the plaintiff’s doctor’s declaration conclusory, without sufficient detail about plaintiff’s current condition, symptoms, and impairments. In an unpublished decision, the Court of Appeal reversed. “[I]n the absence of contrary evidence, the failure to provide further specificity does not justify denial of the motion.”

Although the decision is [at present] unpublished and therefore may not be cited in California courts, it is significant because the decision will certainly be known to, and will likely affect future rulings, from the asbestos courts in Alameda, San Francisco and perhaps even Los Angeles counties, which three account for the bulk of California asbestos cases.  Accordingly, defense counsel opposing such motions should be forewarned that objections to medical declarations filed in support of motions for preference may not be sufficient, and to defeat such motions may require conflicting medical evidence.

Boyd involved a 71-year-old plaintiff.  While the doctor’s progress notes had indicated that plaintiff was actually doing well,

The fact remains that he has a terminal diagnosis of mesothelioma, he is in Stage III of that disease, in which rapid deterioration without progress to Stage IV may occur and, in the uncontradicted opinion of his medical experts, his survival beyond six months is subject substantial medical doubt.  Absent of the evidence to the contrary, Boyd is entitled to preference under [Code of Civil Procedure] section 36, subdivision (a).

The Court of Appeal found that the declaration of his treating doctor was “uncontradicted and establishes that there is a substantial medical doubt that [plaintiff] will survive to the [early] July 13, 2015 [non-preferential] trial date that the court ordered.”

One ray of hope for defendants in this decision (other than its unpublished status) is that it specifically refers to trial preference under subdivision (a), which is mandatory but applies only when a dying party is over 70. The decision agreed that a conclusory doctor declaration might be sufficient to deny trial preference under subdivision (d), which allows for discretionary trial preference where a party is under 70, and requires “clear and convincing medical documentation.”

Another ray of hope is that the decision does contemplate opposing pretrial preference motions with contrary evidence. The decision does not specify the form any such “contrary evidence” should take.

As a postscript, Judge Lee immediately vacated the trial date, and set a new one for the end of February 2015, within the required 120 days from the preference motion hearing date. Because of statutory time restrictions and plaintiffs’ counsel’s refusal to shorten notice, this essentially eliminated the ability of defendants to bring any motions for summary judgment.

Alameda Judge Enforces “No-PID” Stipulation Against Plaintiffs

On August 15, 2014, Alameda Superior Court Asbestos Coordination Judge Jo-Lynne Q. Lee enforced a “no-PID” stipulation that a plaintiff spouse would not provide product identification (PID) testimony, and sanctioned plaintiffs’ counsel for trying to un-do the stipulation.

Plaintiffs’ counsel stipulated at Mr. Leeper’s deposition that Mrs. Leeper would not provide product identification testimony.  In exchange, the defendants agreed not to seek to continue the trial date (advanced due to Mr. Leeper’s health) based on the fact that Mrs. Leeper’s deposition was delayed.  At Mrs. Leeper’s deposition months later (and only two months before trial), plaintiffs’ counsel sought to withdraw the prior no-PID stipulation because Mrs. Leeper recalled four specific, separate products affecting five defendants. The defense objected and moved for a protective order. Judge Lee ordered that Mrs. Leeper not be allowed to give product identification testimony.

The stipulation … was freely entered into by Plaintiffs’ counsel, on behalf of Plaintiffs, and it is an enforceable waiver of the right of [Mrs. Leeper] to offer product identification testimony.  [Citation omitted.] Plaintiffs do not argue that there are grounds for rescinding the stipulation, they provide no evidence that would justify that relief; they merely offer counsel’s representations that counsel entered into the stipulation “in good faith.”

The court recognized that the “obvious and severe prejudice to the defendants affected.” “Defendants have relied upon the stipulation in conducting discovery, preparing witnesses, and generally preparing a defense at trial.”  The court also awarded $1,800 in sanctions against plaintiffs’ counsel.

Attached are the moving papers, the plaintiffs’ opposition, and Judge Lee’s order.  The defendant’s counsel waived reply.

Given this recent order, will plaintiffs’ counsel refrain from entering into future no-PID stipulations?  That remains to be seen, but this order is a welcome recognition that such stipulations should be enforced.

$17.7 Million Verdict in Los Angeles Smoking Lung Cancer Case

On July 30, a Los Angeles County jury found that Lorillard Tobacco Co.’s cigarettes contributed to the 1998 death from lung cancer of smoker William “Earl” Major. The jury reportedly deliberated for about a day before finding in favor of Major’s widow, Tajie Major.

In a 12-0 decision in Major v. Lorillard Tobacco Co., the jury found Major had damages totaling $17,736,700. The jury reportedly apportioned liability 17 percent to Lorillard, 50 percent to Major and 33 percent to cigarettes he smoked that were made by other manufacturers. The trial judge was the Honorable Amy Hogue. Plaintiff’s counsel was Gilbert Purcell of Brayton Purcell.

Tajie Major filed her product liability/negligence complaint in November 2011. She said her husband smoked Kent, as well as Marlboro and Winston, which were made by Philip Morris USA Inc. and R.J. Reynolds Tobacco Co., respectively. Two other tobacco companies were sued along with Lorillard, but Major’s claims against them were dismissed before trial.

This case is particularly interesting because the Brayton Purcell firm is best known for its work in the asbestos litigation; its past claims against Lorillard have focused on its asbestos liabilities, as Lorillard used asbestos in the “micronite filter” of its Kent brand of cigarettes in the 1950s.  In fact, before bringing this tobacco action, the Brayton firm previously filed an asbestos-related complaint in San Francisco Superior Court in 1999 on Mrs. Major’s behalf, arguing that asbestos was the cause of her husband’s disease, and named Lorillard, R.J. Reynolds and Philip Morris in that lawsuit.

This case represents a clear change in direction by the Brayton firm, and it remains to be seen whether Brayton’s success may inspire other traditional asbestos plaintiffs’ firms to enter the tobacco litigation.  The number of lung cancer cases being filed in recent times is increasing.

Asbestos Plaintiff Counsel Runs for California Legislature

Asbestos plaintiffs’ counsel Simona Farrise recently announced she is running for California’s 62nd Assembly District. California’s 62nd State Assembly District is one of 80 California State Assembly districts. It is currently represented by Democrat Steven Bradford of Gardena. The district encompasses the southern part of the Westside and the northern South Bay region, reaching from South Los Angeles to the Pacific Ocean. Heavily urban and ethnically diverse, the district is centered around Los Angeles International Airport. This district is reportedly 60.75 percent Democratic, 13.92 percent Republican and 16.30 percent with no party preference.

For several years, Farrise worked with the Kazan office in Oakland.  However, in 2007, she founded the Farrise Firm, P.C. The firm was started in California with offices in San Francisco, Oakland, Walnut Creek, Santa Barbara, Los Angeles and Illinois. She has been active in the asbestos litigation for many years and has successfully tried several cases to verdict.

Farrise’s campaign website states that, “I’ve built a successful career … fighting for working men and women, seniors, veterans, access to education and justice against well-funded opposition. I’ve stood up to polluters and fought for our families and neighborhoods over and over. And I’ll do the same thing in the Assembly.”