ACI’s 14th Asbestos Claims & Litigation returns in Chicago as the only event in the industry where outside counsel, in house counsel, renowned jurists, and medical experts can gain insight and trade strategy on the hottest jurisdictions, new and emerging theories of causation, and novel theories of liability.
2. Introduction
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Budget crisis/court closures
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New trial judge system in LA
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Coordination update
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Filings — the numbers, types and plaintiffs‘ counsel
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Verdicts
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Removal to Federal court
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Deposition limits
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New case law
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Issues currently on appeal
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3. Budget Crisis/Court Closure
• CA judicial branch has been cut significantly and General
Fund Support has drastically declined
• Court closures
– Civil court houses
– Small claims courts
• Delays
• Furlough days
• Lay-offs
• New system for trying cases
• Discovery commissioners phased out
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4. Los Angeles: New Trial Judge System
Half master calendar, Half direct
JUDGE
Alarcon
Cho
DiLoreto
Dukes, Robert A.
Ellison
Feffer
Ferns
Glennon
Harris
Harwin
Heeseman
Horn
Johnson
Kaddo
Karlan
Kohn
DEPT.
MOSK-36
SM-S
LB-H
POM-R
TORR-A
MOSK-73
MOSK-21
VN-U
VN-106
VN-M
MOSK-19
SM-I
VN-B
VN-I
SM-N
VN-H
JUDGE
Kralik
Linfield
Lippitt
Madden
Marmaro
Minning (Dunn)
Nishimoto
Palmer
Pluim
Rosenfield
Shaller
Simpson
Tarle
Tillmon
Willet
DEPT.
CHWTH-F46
MOSK-10
VN-108
LB-B
MOSK-83
MOSK-61
TORR-E
MOSK-33
PAS-P
MOSK-31
MOSK-46
PAS-R
SM-B
SM-M
TORR-Not Assigned
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5. New Trial Judge System (cont’d)
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Trials sent to Stanley Mosk (downtown LA) and now surrounding areas (Santa
Monica, Pomona, Van Nuys, Chatsworth, Torrance, Long Beach)
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Trial judge assigned on first day of trial
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No case management by trial judge
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Pros and cons
– Uncertainty
– Judges new to the litigation
– Need to have your challenges ready
– Travel time, ―off-site‖ location
– Different jury pools
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6. Coordination Update
Los Angeles
– Judge Emile Elias, coordination judge
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Hears most pre-trial proceedings
Group status conferences
Sends out trials
Goal: consistency, management
Discovery Judge (Mohr)
Settlement Judge (Bendix)
Delay? Not on preference trials
Coordination judge v. trial judge
Subject to General Orders
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7. Coordination Update
San Francisco
• Coordination judge: Judge Jackson
• Six trial judges
• Discovery commissioner phased out, but Judge Jackson conducts informally
• Delay? Preference cases are assigned courtrooms w/i 120 days; delay in
nonpreference cases
• Subject to General Orders
Alameda
• Coordination judge: Judge Lee
• Lee tries the cases herself, but sends out some preference cases when she is
engaged
• Subject to Case Management Orders
Asbestos cases pending in others counties, such as Ventura, Sacramento, Butte and Kern,
but not coordinated
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8. Filings
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Increase, decrease or plateau?
– LA: increase. Nearly 300 new cases filed in 2012 (compared to 188 in 2010)
• 2012: 9 cases went to verdict; 7 settled during voir dire; 2 mistrials.
• 2013: Aprx. 120 filings so far
– Nor. Cal.: decrease due to budget constraints and increased filings in LA because of
available courtrooms.
• 2012: 1 SF verdict; 1 Sacramento verdict; 3 Alameda verdicts
Types
– Mesos: leveling out
– Lung cancers: rapidly increasing
– Asbestosis etc.: decreasing
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Plaintiffs‘ Firms: Waters Kraus, Simon Greenstone, DeBlase Brown, Keller Fishback,
Simmons Browder, Brayton, Weitz, Napoli Bern, Lanier, Farrise, Kazan, Gold, Levin Simes,
Kaiser, Horvitz, Vieira . . .
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Cases increasingly filed in CA because of preference statute, juries and tort reform in other
states.
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10. Deposition Limits
• AB 1875
• Limits a deposition of an individual to 7 hours, except under
specified circumstances
• Court can allow additional time if necessary to fairly
examine deponent
• CA Courts: do not think 1875 applies to complex cases
• Limits placed on deposition time in preference cases
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11. Removal to Federal Court
• Some cases originally filed in Federal Court
• Most cases removed: Federal Officer, Federal Enclave
• Who's removing:
– Navy defendants (Crane)
• Pros (defense perspective)
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Expert Discovery rules favor defendants
No preference statute
No early depositions
Courts go by their own schedule
Easier standard on MSJ
Plaintiff experts more likely excluded/limited
• Cons (defense perspective)
– Shorter depositions
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12. New Case Law
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Saragon v. USC: The Supreme Court held plaintiff‘s damages expert was properly precluded
from testifying about a speculative damage claim, recognizing that ―the trial court has the duty to
act as a ‗gatekeeper‘ to exclude speculative expert testimony.‖
Campbell v. Ford: The Court of Appeal held a property owner has no duty to protect family
members of workers on its premises from secondary exposure to asbestos used during the course
of the property owner‘s business.
Corenbaum v. Lampkin: The Court of Appeal found evidence of the full amounts billed for
plaintiffs‘ medical care was not relevant to the amount of damages for past medical services,
damages for their future medical care or noneconomic damages; thus, the admission of such
evidence was error.
Webb v. Special Electric: The Court of Appeal concluded that, although JM was a sophisticated
user, Special Electric still owed a duty to warn JM and end-user of product (review granted by the
Supreme Court).
Hernandez v. Amcord: In reversing a nonsuit in favor of Amcord, the Court of Appeal held the
trial court erred by granting a motion in limine to exclude evidence of lobbying and petitioning
activities under Noerr-Pennington.
Martinez v. Brownco Construction Co.: The Supreme Court held that, to promote the statutory
purpose of section 998 to encourage the settlement of lawsuits before trial, a party may recover its
expert fees incurred from the date of the earlier settlement offer.
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13. Issues Currently on Appeal
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Take-home duty (Swanson, Petitpas)
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Supplier warnings to sophisticated manufactures (Webb)
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Whether warnings are considered part of the product for purposes of the
Consumer Expectations Test (Steffen)
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Whether a settlement credit should be calculated based on economic
damages before or after Howell reduction (Steffen)
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Automakers and the component-part doctrine (Petitpas)
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