Plaintiff Experts Can Now Change Stories between Deposition and Summary Judgment?

It just got tougher to pin a California plaintiff’s expert down at deposition.

Generally, a witness cannot give a declaration opposing summary judgment that is inconsistent with prior discovery responses (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1), and an expert witness cannot testify beyond the opinions offered at deposition (Jones v. Moore (2000) 80 Cal.App.4th 557, 565 [“When an expert deponent testifies as to specific opinions and affirmatively states those are the only opinions he intends to offer at trial, it would be grossly unfair and prejudicial to permit the expert to offer additional opinions at trial.”]).

A recent California decision throws both those principles into question. Harris v. Tomas Dee Engineering Co. ruled that an expert’s declaration advancing a new theory was not only admissible, but created a factual issue that required reversing summary judgment to the defendant.

The new theory was on a key issue in the case: whether the decedent was ever exposed to asbestos from the defendant’s activities. At deposition, industrial hygienist William Ewing testified, “If he wasn’t present when the work was done, then I don’t think there’d be any issue regarding any exposure.” When plaintiffs were confronted with a potentially fatal motion for summary judgment based on this testimony, however, the expert backtracked. He provided a declaration opining that Mr. Harris “did not need to be present at the exact time that the insulation block was being removed, swept up, and/or installed by Thomas [Dee] workers to be exposed.” Why? Because of the theory of re-entrainment. “This cycle of re-suspension is well-documented and is generally accepted in the industrial hygiene field.”

The trial court rejected the new opinion as contradictory, and granted summary judgment. The Court of Appeal reversed. It ruled that the Jones v. Moore bar applied to an expert’s trial testimony, but not to testimony on summary judgment. This is contrary to Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 541-543, where the Supreme Court held that the same evidentiary standards apply on summary judgment and trial. Harris does not mention Perry.

Harris also ruled that D’Amico was more limited than many defense counsel suppose, and did not bar the changed testimony. The Court of Appeal distinguished D’Amico as involving factual assertions by a party. “In contrast, in the present case, Mr. Ewing’s declaration relates a scientific theory that he apparently did not discuss in his deposition, and his statements in the declaration do not contradict any prior testimony regarding facts he observed.” Further, he explained the difference “by referencing the re-entrainment theory, which he stated is widely accepted in the scientific community.” The court distinguished cases where no explanation was offered.

Harris provides several important takeaways for defense counsel. 

First, the case underscores the importance of asking the right questions of expert witnesses at deposition, ensuring that the opinions are clearly stated, and clearly stated to be the only opinions the expert has to offer.   

Second, noticeably absent from the discussion in Harris was the adequacy of plaintiff’s expert witness declaration under California Code of Civil Procedure section 2034.210.  Had the defense focused on the adequacy of the expert witness declaration – e.g., whether it actually advanced the re-entrainment opinion –  instead of “contradictory testimony,” the result may have been different. 

Third,  rather than focus on excluding contradictory opinions at summary judgment, the prudent defense lawyer should focus examination at deposition on foundation for an expert’s opinions, and then assert evidentiary objections to those opinions at the summary judgment phase. 

Fourth,  Harris calls into question whether any strategy to lock down an expert witness can be 100% effective, or whether a plaintiff expert can always advance a new theory if it is “out there” in the literature. There are still concrete steps that counsel can take.

A Return to the Hotel California: Out of State Plaintiffs Must Bring Their Causation “Baggage” With Them

Out of state plaintiffs flock to California courts to take advantage of its laws, including its more relaxed causation standard for asbestos injuries. However, a recent California appellate decision highlighted the fact a plaintiff may not evade the application of his own state’s causation standard when his asbestos exposure occurred entirely in that state – notwithstanding a California venue.1

Swanson v. The Marley-Wylain Company held the trial court erred by permitting a causation instruction based on California law, when Michigan’s causation standard properly applied. Swanson involved a Michigan-based plumber who, from 1969 to 1976, was allegedly exposed to asbestos while working on boilers manufactured by a Marley-Waylain (“MW”) subsidiary. He moved to California in 1979, was diagnosed with mesothelioma in 2014, and filed suit in California for his injury. Swanson’s exposure to MW’s product took place entirely in the state of Michigan, and given there was conflict between Michigan’s stronger “but for” standard of proximate cause test and California’s “substantial factor” test, MW asked the trial court to order Michigan’s causation standard applied. Although the trial court denied MW’s motion, the Court of Appeal issued a writ of mandate ordering Michigan’s causation law applied. The case proceeded to trial. Plaintiffs persuaded the court to issue a jury instruction setting forth California’s substantial factor test; the trial court ultimately instructed the jury the plaintiff “may meet the burden of proving exposure to defendant’s product was a substantial factor causing the illness by showing that in reasonable medical probability it was a substantial factor contributing to the plaintiff’s or decedent’s risk of developing cancer.” The jury returned a verdict against MW.

On appeal, MW argued the jury had been improperly instructed under California law, and there was insufficient evidence under Michigan law of a causal link between plaintiff’s exposure and his disease. Although the court found the causation evidence could have been sufficient to support the jury’s verdict under Michigan law, it found that the trial court committed prejudicial error by instructing the jury on California’s “substantial factor” test and reversed the judgment and remanded the matter to the trial court for retrial.

The Swanson decision is important for multiple reasons, particularly its affirmation that the location of a plaintiff’s exposure properly frames the applicable causation standard. Even the fact that plaintiff moved to California in 1979 and was a California resident for 35 years before his diagnosis did not compel a different result. California law requires an issue by issue and defendant by defendant choice of law analysis. When, as here, such analysis mandates the application of out-of-state law, a plaintiff may not bypass that mandate with creatively fashioned jury instructions, or through a court’s prejudicial error by so instructing a jury.

The key takeaway for those defending California cases with plaintiffs whose exposure took place entirely out of state is to evaluate and seek to apply the causation standard of the locus of exposure. Even when a plaintiff is a California resident, the “issue by issue” evaluation process mandates application of the causation standard from the state where the exposure occurred.
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1 This follows on the heels of other California cases seeking to rein in forum shopping by enterprising plaintiff’s lawyers, such as this one which sought to limit the use of “nominal” or “sham” defendants to defeat forum non conveniens motions.

California highlights burden on defendants seeking to apportion liability to co-defendants and non-parties

A California Court of Appeal has rejected a defense challenge that the defendant was assigned too high a percentage of liability (60%), because the defendant did not introduce enough evidence about other parties’ liability. The court also rejected a defense claim that the $25 million noneconomic damage award was excessive, even though it was “well beyond the normal range of awards in similar cases for similar injuries” per a survey of similar verdicts.

Phipps v. Copeland Corporation LLC was an asbestos personal injury case in which plaintiff alleged that his mesothelioma resulted from asbestos exposure during his three years in the U.S. Navy and during his subsequent career as an HVAC technician. Copeland Corporation was one of four compressor manufacturers plaintiff sued by plaintiff, along with many other defendants. Plaintiff proceeded to verdict against Copeland only.

Although plaintiff’s medical and causation experts acknowledged during trial at all of plaintiff’s asbestos exposures contributed to his overall dose, they specifically (and expectedly) amplified the exposures to the asbestos-containing gaskets contained within Copeland’s compressors in an effort to maximize Copeland’s share.

The jury found for plaintiff, and ultimately apportioned 60% liability to Copeland, of 15 parties and nonparties on the verdict form. Copeland argued that the evidence could not support “assigning twenty times more fault to Copeland than to any of the other compressor manufacturers, and more fault than all other entities combined.”

The court, however, disagreed. “[A]s the party with the burden to establish the percentage of comparative fault attributable to others [citations omitted], Copeland, to obtain a reversal, must show the evidence compelled a verdict in its favor on apportionment as a matter of law.” Copeland argued that the apportionment was “illogical” because it found Copeland more responsible than any other compressor companies. However, the court pointed out there was no evidence “to compel a finding that William replaced fewer Copeland gaskets than he did Carrier, Trane, or York gaskets.” In reaching this conclusion, the court found that there were sufficient, uncontroverted facts to establish that plaintiff would have worked with far fewer asbestos-containing components from the other equipment manufacturers than from Copeland. In the court’s view, Copeland failed to proffer sufficient evidence of the frequency, intensity and duration of plaintiff’s exposure to the products of other defendants, including the HVAC defendants, and so could not show that the jury’s 60% liability finding was improper.

“The second reason Copeland has failed to demonstrate the evidence compelled a verdict in its favor on apportionment as a matter of law is that ‘the jury was permitted to consider the relative culpability of the parties in assessing comparative fault.’” That culpability need not rise to the level of that required for punitive damages, as here the defense had won summary adjudication nixing punitive damages from the case.

Copeland also argued that the noneconomic damages award was excessive. In support, Copeland submitted to the trial court “a spreadsheet labeled “Plaintiff Verdict Amounts in Asbestos/Mesothelioma Cases.” An accompanying declaration explained that the spreadsheet was the result of “a process for obtaining comparative verdicts in cases that, similar to this one, involved allegations of asbestos exposure leading to mesothelioma,” based on “Lexis Advance® Verdict Analyzer.” Neither the trial court nor the Court of Appeal was moved by this use of technology.

“The trial court did not abuse its discretion in refusing to consider Copeland’s survey of awards in other cases because, if for no other reason, sections 657 and 658 prohibited the court from considering such material:” the statutes require motions to be made on “the minutes of the court.” Accordingly, and because the award was supported by substantial evidence, the judgment and denial of new trial was affirmed.

This case serves as a critical cautionary tale to defendants at trial of the importance of introducing evidence of the liability of others. While California’s Proposition 51 imposes several liability only for non-economic damages, the burden of proving these “alternate shares” lies exclusively with the defendant. The Phipps court made clear that, in its discretion, Copeland simply did not do enough to make a showing that the jury’s apportionment of responsibility was improper. In light of Phipps, a defendant should consider introducing evidence such as:

  • Quantitative assessments of the likely doses of asbestos from the products of others and any possible exposures from one’s own products, including dose reconstructions from experts when possible;
  • Medical causation evidence regarding the relative carcinogeneity of fiber type; and
  • Documentary, “hard” evidence of a co-defendant’s liabilities.

When there are multiple defendants at trial, the plaintiff will make some of this case. Where, as here, there is only a single defendant, this will be more onerous and time-consuming.

Pain and suffering may become awardable in California wrongful death cases.

California may be joining the majority of the country by making pain and suffering damages available in wrongful death cases. Under current law, pain and suffering is only available in personal injury cases. Senator Laird introduced Senate Bill 447 in February 2021, which would allow the survivor of a deceased plaintiff to recover damages for the pain and suffering of the deceased. The senator premised the need for this change on COVID delaying the courts and preventing trials, and to that end amended the original proposal so that it would apply only where the pain and suffering accrued before January 1, 2026.

Although Senator Laird had originally asserted the need for this change because COVID 19 was depriving some plaintiffs of their day in court, supporters of the bill have voiced more general concerns, such as the notion that the current law allows defendants to “get away with” paying less damages simply because the plaintiff dies before trial, and deprives the victim’s family of the additional compensation. Supporters of the bill include the Consumer Attorneys of California, the Consumer Federation of California, and various unions. Opponents include the California Defense Counsel, California Justice Association, California Medical Association, the California Chamber of Commerce, and associations of health facilities and assisted living facilities.

If this bill is passed, it will make wrongful death cases more expensive to settle. No matter whether the death had anything to do with the underlying suit.

The bill has been sent to the Assembly to weigh in on this change.

California Limits Punitive Damages Against Corporations

Last week, a California appellate court limited punitive damages against corporations. By statute, punitive damages can be awarded against a corporation only if the acts were taken or approved by an “officer, director, or managing agent.” Yet courts regularly allow plaintiffs to tar the entire organization without such specific proof. Morgan v. J-M Manufacturing Co. rejected that standard plaintiff position, re-affirmed the statutory restriction, and reversed a $15 million punitive damages award in an asbestos case.

Defendants will be able to use this decision to ward off punitive damages claims, including at the summary adjudication stage, for lack of sufficient evidence. Plaintiffs’ counsel will likely cite this decision to support discovery and deposition demands about specific individuals from corporate defendants. Even such more robust discovery may not uncover witnesses or other evidence to support a punitive damages claim, particularly in cases involving asbestos or other materials that have not been used for decades.

Some highlights from the decision:

The primary focus of J-MM’s argument is that there is no evidence in the record that a J-MM officer, director, or managing agent authorized or ratified any conduct. J-MM contends that at trial, Morgan “treated J-MM as a monolithic entity” and referred to the company—in its entirety—as “they,” without ever identifying who “they” referred to. “[O]f the few J-MM employees whose conduct was specifically identified at trial,” J-MM argues, “none even qualified as officers, directors or managing agents of J-MM during the relevant time period.”

Morgan does not argue that there is evidence identifying any act of any particular J-MM officer, director, or managing agent. Morgan’s argument is that “the entire organization was involved in the acts giving rise to malice,” and therefore it need not introduce clear and convincing evidence that any particular officer, director, or managing agent had the requisite state of mind.

“[i]t is difficult to imagine how corporate malice could be showing in the case of a large corporation except by piecing together knowledge and acts of the corporation’s multitude of managing agents.” … It may be that J-MM’s officers, directors, and managing agents acted with the requisite state of mind to support an award of punitive damages in an appropriate case. A plaintiff may be able to provide evidence at trial to “piec[e] together knowledge and acts of [J-MM’s] multitude of managing agents.” But that did not happen here.

That the defendant is a large company does not relax a plaintiff’s burden of proof . . .

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The decision changed from unpublished, which could not be cited to California courts, to published and therefore citable. I joined in a successful publication request.

California continues on the PFAS regulatory vanguard by banning PFAS in Cosmetics

On October 1, 2020, California passed a law identified as the Toxic Free Cosmetics Act. The Act will prohibit, beginning on January 1, 2025, the manufacturing or selling of any cosmetic product with any intentionally added amount of 24 specified chemicals. The specific list of chemicals includes certain phthalates, formaldehyde, mercury, and PFAS (certain per- and polyfluoroalkyl substances). Although some states have previously passed legislation banning some of the specified chemicals in cosmetic products (e.g., in children’s products), California is the first state to pass such a broad band as to cosmetics in general, and specifically to PFAS.

This is not the first time the cosmetics industry has had to respond to environmental regulatory developments in California. Under California’s Proposition 65 law (“Prop 65”), cosmetics have been a frequent target for consumer bounty hunter actions. The cosmetics industry has generally taken steps to comply with Prop 65 by reducing the concentrations of Prop 65 chemicals or providing the required Prop 65 warnings under law. Nevertheless, the Toxic Free Cosmetics Act will no longer allow the option of a Prop 65 warning, which will require the cosmetics industry to now eliminate (not reduce) the 24 listed chemicals (excepting unavoidable trace quantities).

The inclusion of PFAS on the list of 24 chemicals is of particular interest, as California has also been on the forefront of other environmental regulatory actions concerning PFAS. PFAS includes over 5000 different compounds that have been used in a wide variety of industries. PFAS has recently been reported by the US Department of Health and Human Service’s Agency for Toxic Substances and Disease Registry (“ATSDR”), based on various publications, as potentially causing reproductive and developmental effects in animals, and the EPA has identified limited epidemiological findings concerning possible immune system and thyroid disruption, as well as cancer. Nevertheless, the epidemiological evidence concerning PFAS is very limited and currently developing.

PFAS has been used in many common consumer and industrial products, such as carpet, paints, food packaging, stain resistant sprays, and non-stick cookware. PFAS was also used as a fire-fighting compound in aqueous film forming foam, which served as a very effective fire extinguisher, and has been widely used by the military, airports, and other firefighters throughout the country. The broad uses of PFAS has resulted in detections in soil and drinking water aquifers throughout the United States.

The regulatory framework for addressing PFAS is evolving rapidly. For better or worse, California has stepped to the forefront. For example, on September 29, 2020, California passed a law banning the manufacture, sale and use of PFAS firefighting foam in most applications starting on January 1, 2022. In July 2020, the California Department of Toxic Substances Control released a proposal to regulate plant fiber-based food packaging containing PFAS and has been holding public workshops to develop such regulations.

California’s aggressive regulation of PFAS has also extended to the environmental presence of PFAS in drinking water. The EPA has not yet set a maximum contaminant level (“MCL”) in drinking water for PFAS. Instead of setting MCLs, EPA established health advisory levels for PFAS, which equate to 70 parts per trillion (ppt) in drinking water. As the threshold is advisory, it is not mandated; however, many states have adopted the EPA’s advisory level of 70 ppt.

California, nevertheless, stepped out in front of both the EPA and all other states. In February 2020, California’s State Water Resources Control Board reduced the response levels for PFOA and PFOS to 10 ppt and 40 ppt, respectively. Response levels are advisory levels above which California recommends taking a water source out of service. As day follows night, the removal of drinking water sources from service has resulted in environmental litigation concerning the recovery of associated costs, as a wave of PFAS litigation concerning both environmental releases and products liability is beginning to roll across the country.

The Absurdity of Prop. 65 – Something Fishy

Two recent events reminded me of the absurdity of California’s “Proposition 65” cancer warnings. You are all familiar with this regulatory scheme that started as a valid public health initiative that quickly became a boon for lawyers on both sides of the bar. What may be considered as a prime example of how this good idea has gone astray is the final resolution of a 10-year long court battle regarding the cancer risks purportedly associated with drinking coffee.

Ten years ago a “nonprofit organization” represented by plaintiffs’ attorney Raphael Metzger began a case against Starbucks and many others alleging that since roasted coffee beans contain acrylamide, a listed carcinogen with the state of California, coffee retailers should be fined for not including a Prop. 65 warning with the morning Joe they routinely sell to thousands of customers in the state. The case was assigned to Judge Elihu Berle, who you might recognize as the trial judge on the seminal O’Neil case that led to the “bare metal” defense for asbestos defendants in California.

The case did not proceed well for the coffee vendors, and several settled for amounts reported to be in the millions of dollars. No doubt vast amounts were spent with numerous high profile defense firms, but ultimately they achieved a favorable result. Perhaps unexpectedly, the California Office of Environmental Health Hazard Assessment recently rewrote their regulations concluding that acrylamide in coffee does not pose a cancer risk. Judge Berle has ordered the case dismissed. But only after 10 years of litigation and millions spent by settling defendants.

Trying to ease my mind from the vicissitudes of Prop 65 litigation, I decided to relax with some fishing. But even on a pier in the SF Bay, I could not escape yet another example of an absurd application of Prop 65. See the attached three photos. If you do not recognize it, that is a net fishermen use to raise up to the pier the big ones they have hooked (I say this only from having watched others as I never catch a big one). Notice the close up photo of the float on the net. It has a Prop 65 warning! How on earth could anyone ever sustain any type of exposure from that float that would actually enhance their risk of any type of cancer? But companies selling products into California have become so concerned with Prop 65 litigation that they now put warnings on everything. This type of over warning surely cannot be beneficial.

These are just a few examples of the ongoing excessive application of Proposition 65 that makes one wonder whether its requirement for warnings is actually benefitting California consumers.

Proposed Changes to California Asbestos Jury Instructions on Causation

The Advisory Committee on California Civil Jury Instructions is considering changes to many instructions, including two on causation: CACI 435 (substantial factor in asbestos cases) and CACI 430 (substantial factor generally).

CACI 430, applicable in tort actions generally, defines “substantial factor” as “more than a remote or trivial factor” in contributing to the harm, which “does not have to be the only cause of the harm.”

CACI 435 is modeled on Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, and provides that the “substantial factor” is not to be determined by causing harm, but a substantial factor contributing to plaintiff’s “risk of developing cancer.”

Two issues are addressed by the proposed changes: (1) whether CACI 435 applies to defendants other than manufacturers or suppliers of asbestos-containing products, such as property owners or those doing work at a site, and (2) whether in some asbestos cases the more traditional, cause-of-harm CACI 430 may be used. In case you still have asbestos in your building and will like to avoid healthy and legal problems, hire the san jose mold inspection to asses the damage and work to be done.

The proposed changes would answer both in ways that help plaintiffs, and expand liability risk for some defendants. First, the proposed changes to CACI 435 will add “property” and “operations” to “product” as a possible source of asbestos exposure. The proposal cites Lopez v. The Hillshire Brands Co. (2019) 41 Cal.App.5th 679, 688, which ruled that CACI 435 was proper for claims against an employer/premises owner for asbestos at the site, even though not a manufacturer or supplier but rather a user of the product. Lopez reasoned that the point of CACI 435 was to focus on the risk of developing cancer from asbestos, and that the same considerations applied whether or not the defendant was a product manufacturer. Further, Lopez ruled that CACI No. 430’s terms “remote and trivial” are misleading and may confuse jurors: “jury instructions therefore should not suggest that a long latency period … precludes an otherwise sufficient asbestos claim.” The concern seems misplaced: there is no reason to assume jurors are incapable of understanding the concept of latency.

The proposed changes build on Lopez and would not only extend CACI 435 to non-manufacturers, but would drop from the “directions for use” contrary authority, and a reference that the issue was “was not settled.” Potentially worse, they would assert that CACI 430 may never be given in an asbestos case, whether or not in conjunction with CACI 435.

Complicating the problem: even the existing CACI 435 does not faithfully reflect Rutherford, which addresses “a substantial factor in contributing to the aggregate dose of asbestos the plaintiff or decedent inhaled or ingested” (emphasis in original). The existing instruction refers to a substantial factor contributing to the risk of cancer, without grounding that medical opinion (as did Rutherford) in comparative dose. The difference is particularly significant for defendants with minimal or low-dose exposure in cases where there is abundant alternative exposure (e.g., one home remodel job but a lifetime career working near asbestos insulation). GRSM and other defense attorneys have attempted in vain to get this instruction to reflect its source authority.

The proposals and directions for public comment are at https://www.courts.ca.gov/documents/caci20-02.pdf. Comments are due September 2, 2020. Pending that comment period, the changes are due to become effective November 15, 2020.

California Increases Potential Liability Exposure in Multi-Defendant Cases

The risks of litigating in California just got larger.

California’s Proposition 51 makes defendants jointly liable for all economic damages, but severally liable for noneconomic damages only in proportion to fault. The California Supreme Court yesterday unanimously ruled that intentional tortfeasors cannot use Proposition 51 to reduce their share of noneconomic damages. Resolving a split among intermediate appellate courts, the court ruled that “section 1431.2, subdivision (a), does not authorize a reduction in the liability of intentional tortfeasors for noneconomic damages based on the extent to which the negligence of other actors — including the plaintiffs, any codefendants, injured parties, and nonparties — contributed to the injuries in question.”

This decision will further incentivize plaintiffs to include and pursue intentional tort claims in multi-defendant cases, even when they are really only “add-ons” to a claim grounded in another theory (e.g., fraud claims in strict product liability failure to warn cases). The potential damages against any defendant facing such a claim now include all, not just some, of the noneconomic damages. Noneconomic damages for such matters as pain, suffering, and loss of consortium are often a multiple of the economic award. Compounding the problem: whether such intentional tort claims will be precluded from insurance coverage as a “loss intentionally caused by the insured.” 

In B.B. v. County of Los Angeles, police used excessive force and caused the death of a man they caught assaulting a woman on the street while in a drug-induced haze. The jury found decedent 40% responsible, several deputies negligent and collectively 40% responsible, and Deputy Aviles liable for battery and 20% responsible. The trial court entered a judgment holding Aviles liable for 100% of both economic and non-economic damages. The Court of Appeal reversed, but the Supreme Court reversed the Court of Appeal, effectively reinstating the judgment.

In a typically thoughtful opinion from Justice Chin, the court ruled that the statute’s application to cases decided “under principles of comparative fault” included negligence (and strict product liability), but did not include intentional tortfeasors. The court rejected multiple arguments that this was unfair and inconsistent with other language in Proposition 51, including those made by defendants and in an amicus curiae brief supporting the defense to which yours truly contributed.

We previously reported on this case just after it was argued, see here.

California Asbestos Trials in the Age of COVID-19

By: IAN WILLIAMSON, San Diego

We continue to monitor how various courts in California are handling asbestos trials. The situation is unsurprisingly fluid.  Some courts have started trials and we are closely following those.

San Francisco assigned one case to a trial judge on June 26, 2020. Discussions of how that matter would proceed to trial were ongoing when the case resolved. Generally, remote jury selection was discussed. There were discussions about how to have the jurors in court – socially distanced and having virtually all witnesses appear remotely.

In Alameda County (Oakland), jury selection is ongoing in two cases. These are both living mesothelioma cases with preference trial dates. Both cases had been initially set for trial in March. Jury selection is being conducted remotely – with hardships and questionnaires done electronically and voir dire via Zoom. Both cases appear headed to a situation where the jurors are participating 100% remotely unless they do not have the technical ability to do so. It appears that all witnesses will appear remotely. Defendants have raised significant due process concerns, and in one case petitioned the Court of Appeal for a writ. The Court of Appeal denied the petition as premature, even while acknowledging that serious fairness issues were being raised.

The COVID-19 pandemic continues to disrupt trials as court implement safety procedures.

Los Angeles County does not have any jurors available yet, but has just started re-issuing jury summonses. It is anticipated that all of the first wave of jurors will go to criminal cases. There are several preference cases pending trial that are being continued on a rolling 15-day basis (per the preference statute) until a jury pool is available. The court has urged parties to waive a jury (neither side has agreed) or consider smaller jury panels. The court is setting new preference trial dates in the fall, but noting that those trial dates are “not realistic” and the cases will likely be continued until there are juries available.

Low priority cases – such as wrongful death cases and non-preference personal injury cases – are being continued into 2021 in all three venues. When and how the courts will catch up on those remains to be seen.

All three of California’s primary asbestos courts are utilizing the MSC process to try to facilitate resolution of cases. Los Angeles and Oakland are ordering remote MSCs. San Francisco required counsel to appear in person. None of these courts are requiring client or carrier representatives to travel to appear in person.

Courts with very few cases (Fresno, Sacramento, Solano, etc.) do not seem to be treating asbestos cases any different than any other cases–meaning we do not anticipate trials before 2021.

Federal courts generally remain in operation but jury trials seem to be limited to criminal cases only. We are not aware of any Federal asbestos cases being called to start jury trials since the pandemic shut court operations down.

Visit the Gordon & Rees COVID-19 Hub for ongoing updates.