Asbestos Claims & Litigation - Conference Materials

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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.

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Asbestos Claims & Litigation - Conference Materials

  1. 1. ACI Asbestos Conference: California Trends and Update Jayme C. Long McKenna Long & Aldridge LLP mckennalong.com LA 18027948
  2. 2. Introduction • Budget crisis/court closures • New trial judge system in LA • Coordination update • Filings — the numbers, types and plaintiffs‘ counsel • Verdicts • Removal to Federal court • Deposition limits • New case law • Issues currently on appeal 2
  3. 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 3
  4. 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 4
  5. 5. New Trial Judge System (cont’d) • Trials sent to Stanley Mosk (downtown LA) and now surrounding areas (Santa Monica, Pomona, Van Nuys, Chatsworth, Torrance, Long Beach) • Trial judge assigned on first day of trial • No case management by trial judge • Pros and cons – Uncertainty – Judges new to the litigation – Need to have your challenges ready – Travel time, ―off-site‖ location – Different jury pools 5
  6. 6. Coordination Update Los Angeles – Judge Emile Elias, coordination judge • • • • – – – – – 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 6
  7. 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 7
  8. 8. Filings • • 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 • 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 . . . • Cases increasingly filed in CA because of preference statute, juries and tort reform in other states. 8
  9. 9. Trials • • Verdicts — 2013 – Sutherland (LA): plaintiff verdict – Walter (Sacramento): defense verdict – Grigg (Alameda): plaintiff verdict – Smith (Alameda): plaintiff verdict Verdicts — 2012 – Petitpas (LA): defense verdict – Anderson (LA): defense verdict – Orona (LA): defense verdict – Couscouris (LA): defense verdict – Paulus (LA): plaintiff verdict – Izell (LA): plaintiff verdict – Elliott (LA): defense verdict – Patchen (LA): defense verdict – Keeney (LA): plaintiff verdict – Desin (SF): plaintiff verdict – Hellam (Alameda): plaintiff verdict – Scott (Alameda): plaintiff verdict – Skinner (Alameda): defense verdict – Lovelace (Sacramento): plaintiff verdict 9
  10. 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 10
  11. 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) – – – – – – 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 11
  12. 12. New Case Law • • • • • • 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. 12
  13. 13. Issues Currently on Appeal • Take-home duty (Swanson, Petitpas) • Supplier warnings to sophisticated manufactures (Webb) • Whether warnings are considered part of the product for purposes of the Consumer Expectations Test (Steffen) • Whether a settlement credit should be calculated based on economic damages before or after Howell reduction (Steffen) • Automakers and the component-part doctrine (Petitpas) 13
  14. 14. Contact Information Jayme C. Long McKenna Long & Aldridge LLP (213) 243-6229 jlong@mckennalong.com 14

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