Wednesday, December 19, 2007
C.A. Throws Out Los Angeles Superior Court Standing Order
Protocol for Asbestos Cases Violates Work-Product Rule, Panel Holds
By KENNETH OFGANG, Staff Writer
A standing discovery order of the Los Angeles Superior Court, requiring plaintiffs in asbestos cases to identify “product identification” witnesses and disclose the substance of their anticipated testimony prior to trial violates state law codifying the work-product privilege, the Court of Appeal for this district ruled yesterday.
“Trial courts can fashion suitable methods for managing complex litigation....,” Justice Judith Ashmann-Gerst, citing prior Court of Appeal decisions, wrote for Div. Two. “And they can issue standard orders....But the orders must be consistent with due process...and not be ‘inconsistent with law’ or conflict with any statewide statute, rule of law or Judicial Council rule.”
The panel issued a writ of mandate directing that numerous defendants be reinstated in a suit by the widow and children of Gail Snyder, Sr., a onetime employee of several of the defendants, who allegedly died as a result of on-the-job exposure to asbestos.
The Snyders filed suit in November 2005. They amended the complaint in April 2006.
In October of last year, the plaintiffs filed their “case report” pursuant to Second Amended General Order 29. The order requires that plaintiffs, no later than eight months after filing suit, file such a report containing the plaintiff’s medical records and asbestos exposure history.
The report must also identify “each product identification witness and each product identification document upon which plaintiff intends to rely at trial.” A witness or document must be identified if that witness or document “provides any essential element of evidence relating to plaintiff’s exposure to asbestos-containing products.”
For related causes of action, such as conspiracy or fraud, the case report must also state a witness’ expected testimony.
If a the notice is deficient, the defendant may move to dismiss between 45 and 75 days after the plaintiff serves the report. The plaintiff may then supplement the report up to 10 days prior to hearing on the motion, provided that any newly identified witness is made available for deposition.
Any witness or document not identified in the case report is excluded absent a showing of good cause.
In the Snyder case, the defendants moved to dismiss on the ground that the case report failed to identify any product of the moving defendants that exposed the deceased to asbestos or any witness or document supporting plaintiffs’ claims. The plaintiffs contended that their report complied with the order, and that the order was invalid because it was not promulgated as a local rule, and that it otherwise conflicted with state law.
Judge Alice Altoon, who has since retired, granted the motions to dismiss, but the Court of Appeal granted an alternative writ of mandate and heard argument on the merits.
Ashmann-Gerst, writing for the panel, said the order conflicts with Code of Civil Procedure Sec. 2018.030. The section declares that “[a] writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances,” and that any other form of attorney work product is discoverable only upon a showing of unfair prejudice or injustice.
The Court of Appeal, the justice explained, has previously ruled that identities of nonexpert witnesses intended to be called at trial constitutes work product and that pretrial discovery of that information requires an affirmative showing that the moving party will suffer unfair prejudice or injustice if discovery is denied.
It has also been held that any disclosure of a witness’ anticipated testimony would be a reflection of the attorney’s impressions, conclusions and opinions and thus absolutely privileged, Ashmann-Gerst wrote.
The court’s holding, the justice went on to say, made it unnecessary to consider several other contentions by the plaintiffs, including their claims that the order violates the Civil Discovery Act by requiring continuing interrogatory responses and setting discovery timelines that are inconsistent with those in the act, and that the order provides for an invalid terminating sanction.
The case was argued in the Court of Appeal by Stephen M. Fishback of Keller, Fishback & Jackson for the plaintiffs and by Steven D. Wasserman of Sedgwick, Deter, Moran & Arnold and Margaret I. Johnson of McKenna Long & Aldridge for the defendants.
The case is Snyder v. Superior Court (Caterpillar, Inc.), 07 S.O.S. 7351.
Copyright 2007, Metropolitan News Company