As I mentioned in the self-agrandizing "Happy Birthday to Me" post above, one of my goals for the future of CalBizLit is to increase the number of in-depth, substantive posts. These are posts that are less topical and more intended to give companies who find themselves, or may find themselves, embroiled in litigation here an overview of what they have to look forward to. And so, with those good intentions in mind, here's the first part of what will be a three or four part blawg post dealing with the nuts and bolts of Product Liability defense in the Golden State.
This is not a primer on California Product Liability law. I've previously done this in a white paper here.
And it's definitely not a guide to managing complex or mass litigation. How to handle a product under attack nationwide or a toxic tort or pharmaceutical case with 500 or 5000 (or more) plaintiffs is not a subject amenable to a few blog posts, and is way beyond the scope of this one.
Instead, the premise is this: while every case may be different from every other case, and it is dangerous, unimaginative and slovenly to rely too much on routines, there is such a thing as a “garden variety” product liability case, and there are some elements that lend themselves to efficiencies and common ways of organization. These posts and the ones to follow address some of those in the environment that is unique to California.
So here we have the basic steps for a manufacturer, or other defendant at the top of the American marketing stream, who faces a personal injury or large property damage claim involving an appliance, a motor vehicle, a power tool, or some other product alleged to be defective in manufacture or design.
Most of what I describe here will take place in a remarkably compressed period of time. California courts are under substantial pressure from the State’s Judicial Counsel to dispose of most cases within twelve months of filing and nearly all cases within two years. Court statistics indicate that 68% of all civil cases are disposed of by our courts less than twelve months after the complaint is filed, 85% in less than eighteen months, and 92% in less than two years. Judicial Council of California, 2008 Court Statistics Report, Statewide Caseload Trends 1997–1998 Through 2006–2007. And since the Judicial Council’s measurement starts the day the complaint is filed, and defendants don’t normally even see the complaint for days, or sometimes weeks after that event, their processing time is even shorter. Bottom line message: In California, at least in most counties, all the things we talk about here are going to happen quickly.
This first step is not unique to California, and not unique to product liability cases. In fact, the phrase “stupid call” wasn’t even invented in California. As far as I know, the phrase was invented by a friend of mine who practices product liability nationally but is based in Montana.
The elements of the first step are incredibly simple:
1. Pick up telephone;
2. Dial number of plaintiff attorney;
3. Engage him or her in pleasant, or at least civil, conversation;
4. Act stupid about his or her case (this is easier for some of us than others); and
5. Try to get him or her to tell you as much about the case as possible.
The theory of the stupid call is really simple: first of all, more information is almost always better than less information. And while you can expect that the other side is going to posture, exaggerate, and, dare we say it, confabulate, the odds are that they are also going to tell you some things about the case that you wouldn’t otherwise know. And since the California complaint may have told you very little – in fact, if it’s a Judicial Council Form Complaint, it told you nothing at all – this is your chance to at least learn something about the injury and how much the plaintiff’s attorney knows.
Now, it may be that the other side won’t give you any useful information. It may be that he or she won’t even talk to you; there are plenty of jerks in this world, and a representative number of them are lawyers. But the other side isn’t going to give you any useful information if you don’t call, either, so you aren’t going to be any worse off for trying.
The first three procedural issues are these: removal, removal and removal. While this paper is not a treatise on removal jurisdiction or procedure, just about every defendant in every California state court product liability case wants to remove the case if possible, for a number of reasons. These reasons include (a) stricter judges; (b) in urban jurisdictions, more conservative juries; (c) in most of the federal courts, a bench more favorably disposed toward summary judgment and other dispositive motions; (d) a unanimous verdict requirement for both liability and damages (only nine out of twelve jurors need agree on each issue in California state courts, and they don’t have to be the same jurors on every issue); and the most overriding issue of all, (e) judicial gatekeeping of expert opinion testimony under Daubert v. Merrell Dow Pharmaceuticals (1993) 509 U.S. 579. California still follows that oldie but not-so-goodie, Frye v . United States (DC Cir., 1923) 293 F. 1013. But worse yet, Roberti v. Andy’s Termite & Pest Control, Inc. (2003) 113 Cal.App.4th 893 holds that Frye is limited to “scientific techniques,” and there is not even the limited gate-keeping of Frye for scientific and medical opinions not based on “techniques.”
So as soon as that “Stupid Call” is over, the California defendant will want to evaluate the case for diversity of citizenship or other removal grounds, figure out what its time constraints are (i.e., whether it has at least has thirty days, or whether some other defendant has chewed up some or all of the time by failing to remove) and round up anybody needed to join in the removal.
All the other procedural issues pale by comparison, but this is a good time to at least look at the following:
- Demurrer: The demurrer is California’s equivalent of an FRCP 12(b)(6) motion, and is available, in general, when the complaint fails to state a cause of action or is fatally flawed because of facts that can be judicially noticed. Because the court will almost always allow amendment even if it “sustains” the demurrer, demurrers are usually a waste of client money and lawyer time. But they may be a good idea if they can result in a mortal blow to the case (i.e., when the case is time-barred or there is some other incurable flaw).
- Motion to Strike: Code of Civil Procedure section 436 authorizes a motion to strike out “any irrelevant, false, or improper matter inserted in any pleading” or “all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule or an order of the court.” Most often in the tort world these motions are used to dispose of punitive damage allegations in the infrequent circumstances where the plaintiff cannot adequately allege a basis for them.
- Potential future motion for summary judgment: As touched on above, both the law and culture in California are antagonistic to the granting of summary judgment, particularly in personal injury cases. But if this is a case with a potential summary judgment motion, counsel should be mindful of that potential from the start. Summary judgment motions must be made on a minimum of seventy-five days notice (more if served other than by hand), and must be heard at least thirty days before trial. This means that (a) the motion must be served and filed at least 105 days before trial – in a jurisdiction where there may well be less than 300 days between the time counsel is retained and the trial date; and (b) when the court sets the trial, counsel must be sure that sufficient time remains to allow the motion to be noticed and heard. The court has no authority to shorten the notice time no matter how exigent the circumstances, and can allow the hearing within the thirty day period only upon a finding of good cause.
Lots more on this coming in the next few days.