Although I usually represent defendants in tort, consumer and business litigation, CalBizLit.com is not a tort reform site. CalBizLit believes in the civil courts and the jury system. CalBizLit thinks that while there are occasional aberrant, and even shocking, results (which of course get all the headlines), more often than not, courts and juries get it right.
However. There are exceptions. And today, CalBizLit discusses one of them. It's an exception that is indefensible, that clearly offended a Los Angeles trial judge, and that needs fixin' at the appellate level.
More after the jump.
What kind of product liability case is filed in California more often than any other? If you said an asbestos case, pat yourself on the back. And what kind of civil trial, on average, has the highest average verdicts? Right again. And, with the exception of dog bite cases, which type of tort case has the highest percentage of plaintiff outcomes? Congratulations -- you've got a trifecta!
Now most of the asbestos cases going to trial in California involve mesothelioma, a truly horrible and usually fatal cancer of the lining of the lung. And under California's preference statutes, these cases, which can result in plaintiff verdicts of $10 million to $20 million, proceed at, shall we say, a brisk pace. And the plaintiffs' bar seems none too concerned about whether they have the goods on every defendant before they file; the name of the game here is often to include every possible defendant, and then see how things shake out.
But the recent trial court opinion by Los Angeles Superior Court Judge Aurelio Munoz highlights how this blunderbuss approach can be taken to new levels. The setup: Texas asbestos law firm Waters & Kraus moved into Los Angeles a few years ago after Texas enacted some inconvenient tort reform legislation. California law generally allows summary judgment on the ground that the plaintiff can't establish product identification only if the moving defendant proves the plaintiff can't establish he was exposed to the defendant's product. Texas law is less restrictive, and apparently allows summary judgment if the plaintiff doesn't establish product identification in his deposition. Also, Texas law limits depositions to six hours per side.
So, how do some plaintiff attorneys avoid the inconvenience of summary judgment in a California preference case when the plaintiff is dying of mesothelioma? Easy peasy. File case in Texas. Take plaintiff deposition. Dismiss case, and refile in California. Defendants schedule deposition, but wait -- plaintiff is too sick for that. Then he dies. Plaintiff's attorneys have a deposition to use at trial. But with just a six hour deposition (not much time when there are twenty, thirty or more defendants waiting to get in their licks) there's not enough there to support a motion for summary judgment. And the defendants have to stick around for trial, or else cough up money, even when the plaintiff can't make a prima facie case.
Is this an outrage? Judge Munoz thought so:
The motion to exclude or preclude plaintiffs to use the decedent's deposition testimony is reluctantly denied. This court does not have the authority to summarily prohibit the use of otherwise admissible testimony even if the court does not approve of the games, and they are games, that are being played. Plaintiff's law firm, which is a multi-state firm, has, in at least nine other cases, filed cases in Texas which were then dismissed after the plaintiffs' deposition had been taken. The reason for this procedure is apparently because under Texas Law the deposition is severely limited to six hours per side. Additionally, under Texas law the failure to mention the defendants product is a basis for summary judgment. The law in this state is to the contrary. (See Scheiding v Dinwiddie Constr. Co. (1999) 69 Cal.App.4th 64.)
Because the defendants have effectively been prohibited from questioning the decedent, they are barred from presenting motions for summary judgment. Plaintiffs, on the whole, will not consent to dismissals even when they have no evidence against a specific defendant. Rather, they force the defendants to file motions for summary judgment and then file notices of non-opposition. The object appears to be to keep the defendants in as long as possible in order to force settlements out of those defendants in lieu of dismissals. It is not unusual to have trials with trial estimates of 15 to 20 days, commencing with 10 or more defendants. As a result many jurors have to be called, a longer jury selection occurs and the settlements begin to occur during jury selection and even as the opening statements are being made. The main theme seems to be settle or we'll run up the attorneys' fees so high that it is cheaper to settle. Rarely do the cases go to verdict. Instead what is accomplished is a waste of the court's time, the burning of numerous jurors because of the one day one trial rules and what seems to be a type of judicially sanctioned extortion.
In short this is the grisly game of asbestos litigation that occurs in the courts. The court is of the opinion that it cannot grant the relief requested, but perhaps an appellate court can.