Wednesday, August 5, 2015
Court of Appeal Declares:
Lawyers’ Procrastination Justified Dismissal of Toxic Tort Cases
By a MetNews Staff Writer
The failure of the plaintiff’s lawyer to designate a general causation expert by the date set for doing so justified an order excluding testimony of any such expert, the Court of Appeal for this district held yesterday in a toxic tort case against Exxon and others.
Div. Three, in an unpublished opinion by Justice Patti Kitching, affirmed a summary judgment for the defendants based on that exclusion order.
Issuing the order was Los Angeles Superior Court Judge John A. Torribio. It came in an action by 27 persons who are former and current employees of Lockheed Corporation. They form “Group 9” in a series of coordinated cases by workers claiming ill effects from on-the-job exposure to chemicals.
Torribio on June 25, 2012, entered a Case Management Order (“CMO”) for Group 9. It provided that on Jan. 14, 2013, the parties would exchange their designations of expert witnesses on general causation, as well as declarations by the experts.
The CMO declared:
“Plaintiffs and Defendants shall comply with the deadlines set forth below, and no extensions shall be permitted except by court order….Orders granting extensions will be entered only upon a showing of good cause established by written motion or stipulation filed before the passing of the subject deadline.”
Jan. 14 fell on a Monday in 201`3. At 6:51 p.m. on the Friday before the deadline, the plaintiffs’ lawyer, Carmen Miranda, sent an email to defense counsel Lawrence Riff, saying that she and her co-counsel had been in trial in San Francisco since the start of the month and asked that he extend the deadline by two weeks.
Riff sent back an e-mail on Jan, 13 saying he could not “unilaterally extend this deadline which has been on the books for a very long time,” and that his clients were “really disturbed by plaintiffs’ non-compliance with this same order for Group 7 after they spent six figures complying.”
He told Miranda:
“So I will have to ask the clients on Monday but my guess is that they won’t agree. I’m sorry.”
On Jan. 14, the defendants served and filed their designation of an expert, along with his declaration; the plaintiffs served and filed nothing.
The defendants moved for an exclusion; Torribio granted it; they moved for summary judgment on the ground that the action would necessarily fail without expert testimony; Torribio granted it.
His rulings were correct, Kitching said.
She pointed out that Code of Civil Procedure § 2034.210 requires parties to “simultaneously exchange information concerning each other’s expert trial witnesses.”
Where one party has complied and the other hasn’t, Kitching noted, §2034.300 permits the party in compliance to move to exclude the other side’s expert testimony, and specifies that the court “shall” grant the motion if the party not in compliance acted “unreasonably.”
Torribio made a finding of unreasonableness. However, counsel on appeal argued that such a finding cannot be sustained unless the noncompliance stemmed from “gamesmanship.”
Kitching said the opinion in that case said that where there is “gamesmanship,” unreasonableness can be found; it did not purport to limit unreasonableness to instances where “gamesmanship” is found.
‘Gamesmanship’ Was Present
The jurist added:
“Moreover, even if we accept the premise that the expert exclusion sanction requires some ‘appearance of gamesmanship’…, we cannot say that was wholly lacking in this case.”
“[T]the explanation offered by Plaintiffs’ counsel for their failure to meet their expert disclosure obligations admitted of circumstances that were entirely within counsel’s control, and thus permitted an inference of gamesmanship. According to counsel, their conduct could not be regarded as unreasonable, because they requested a stipulation from the defense at 6:51 p.m. on January 11, 2013—the last business day before the expert exchange deadline—due to a trial commitment in an unrelated case that existed since the beginning of the year. Setting aside the fact that Plaintiffs’ counsel had been aware of the expert exchange deadline since the court entered the CMO on June 25, 2012—more than six months before counsel’s stipulation request—this asserted justification fails to explain why counsel waited until January 11 to request the stipulation when they had known since January 3, by their own account, that they would be engaged in trial and unable to meet the disclosure deadline. This omission is especially relevant, since the CMO in this case provided that “no extensions shall be permitted except by court order” and that “[o]rders granting extensions will be entered only upon a showing of good cause established by written motion or stipulation filed before the passing of the subject deadline.”3(Italics added.) In view of the good cause requirement, there could be no assurance that the court would order an extension, even had a stipulation been filed on the deadline (the only date left due to the timing of Plaintiffs’ request). Thus, counsel’s belated stipulation request left Defendants in the untenable position of either potentially violating the court’s CMO, or serving their defense expert information as ordered, even if this meant Plaintiffs would have the opportunity to review that information before serving their own expert disclosures.1 In view of Plaintiffs’ unexplained, but entirely avoidable, delay in requesting an extension, and the prejudice it predictably engendered against Defendants, the trial court could very reasonably have found the “appearance of gamesmanship” on this record.”
The case is Lockheed Litigation Cases, B251864.
Martin N. Buchanan, along with Robert W. Finnerty of Girardi | Keese, represented the plaintiffs. and for Plaintiffs and Appellants. David M. Axelrad and Jean M. Doherty of Horvitz & Levy and Lawrence P. Riff and Jason Levin of Steptoe & Johnson acted for the defendants.
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