California’s Senate Bill 632 seeks to impose a seven hour limit on depositions in asbestos cases at the expense of defendants’ due process rights. Specifically, SB 632 will require that “a deposition examination of the witness by all counsel, other than the witness’ counsel of record,” be limited to seven hours of total testimony in any civil action for injury or illness that involves a plaintiff with mesothelioma if a licensed physician attests that: (1) either the deponent suffers from mesothelioma, is over 70 years of age, and his or her health or well-being would be prejudiced by a deposition beyond seven hours; or (2) without regard to the deponent’s age, the deponent’s mesothelioma raises substantial medical doubt of survival beyond six months.
SB 632 allows for an additional seven hours, but no more than fourteen hours of total testimony, if the court makes a factual finding supporting the extension and determines that the health of the deponent does not appear to be endangered by the granting of additional time. Notably, however, SB 632 ensures that the time constraints do not apply to questioning by plaintiff’s counsel and eliminates judicial discretion allowing a deposition to go beyond the fourteen hour limit.
A shortened period for cross-examinations is inherently prejudicial because all defendants maintain an interest in properly and fairly preparing their defense and no party should be required to jeopardize that right. Imposing a seven hour limit on a key witness’ deposition will ensure that defendants’ due process rights will be violated by not allowing adequate time to defend the case at a deposition. As a hotbed for asbestos litigation, plaintiffs in California typically name dozens of defendants for a wide variety of alleged exposures in a myriad of industries and locations that generally consist of work histories spanning thirty to forty years. In addition, such time constraints will pin codefendants against each other as each attempts to jockey for more time to properly cross-examine a plaintiff in an effort to build their defense. The number of parties in a typical asbestos case coupled with the varying alleged exposures stretched over decades will make it impossible for a defendant to conduct an effective cross-examination under the time constraints proposed by SB 632.
The plaintiff’s bar argues that time limits under this bill will protect plaintiffs suffering from mesothelioma from questions where answers could be ascertained from other sources like written interrogatories. Responses to written interrogatories, however, are typically devoid of substantive information and are littered with boilerplate objections that the interrogatories are burdensome and oppressive. Further, the time constraints should not only take into account a plaintiff’s medical condition, but should be measured against the effect the time limits have on all parties, as well as the orderly and fair administration of justice. Currently, case management orders governing asbestos cases filed throughout California limit plaintiffs’ deposition to twenty hours and allow judicial discretion to extend the time limit to fairly examine the deponent on a showing of good cause. SB 632 is dangerous in that it seeks to strip the court of its power by eradicating judicial discretion while at the same time violates defendants’ due process rights by disallowing adequate time to prepare and defend themselves at a deposition.
Cases involving allegations of asbestos exposures typically involve a multitude of defendants, each of whom is likely to conduct significant discovery and many of which who will need to cross-examine plaintiff on key issues if provided sufficient time to do so. Requiring dozens of defendants to conduct a proper cross-examination within a maximum of fourteen hours is unreasonable and will irreparably damage defendants’ ability to mount an adequate defense. As of the date of this article, SB 632 has been approved by the Senate and is sitting on the Assembly floor. If the bill passes, it will be on the Governor’s desk on September 15, 2017. Defense counsel should unite and lobby against SB 632 by writing letters to the Governor explaining that the bill will result in a violation of due process because it is impossible to complete a plaintiff’s deposition in an asbestos case in seven hours, and even fourteen hours would not allow an adequate defense given the number of defendants typically named in each case. Further, SB 632 contradicts California Code of Civil Procedure § 2025.290(a), which permitted judicial discretion in allowing additional time beyond any limits “if needed to fairly examine the deponent.” Be heard now before your session has expired.