July 2017

Have you ever taken a deposition where nearly every single one of your questions is met with a barrage of seemingly meritless objections?  How about one where your opponent decides to take a more laissez faire approach and repeatedly instructs their witness not to answer?

If you answered yes, rest assured you are not alone.  Personally, there is nothing that interrupts the “flow” of my deposition more than when I am on the receiving end of these scenarios.  The former scenario is at least somewhat manageable to the extent that it may result in having to reword or repeat a few questions.  The latter scenario, however, is much more disruptive as it effectively stops the deposition in its tracts.

So what should you do when opposing counsel instructs their witness not to answer?

First, you should ask yourself whether your question is in proper form.  You generally do not want to ask the deponent “contention” questions, i.e., those seeking all facts, witnesses, and document that support a legal contention.  Such questions are proper in interrogatories, but not in depositions.

In Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255, the deponent was instructed not to answer various “contention” questions. In response, the deposing party brought a motion to compel, which the court denied.  The court held that such questions were unfair in the context of a deposition because “they call upon the deponent to sort out the factual material in the case according to specific legal contentions, and to do this by memory and on the spot.” (Id. at 1262.) It further noted that such questions should be posed in the form of interrogatories so that the party, with the aid of its counsel, can “apply the legal reasoning involved in marshaling the facts relied upon for each of its contentions.” (Id.)

In light of the above, if an opponent instructs their client not to answer, look at your question first and see if it passes muster under Rifkind.  If your question is something along the lines of “Why do you believe you are entitled to damages” or “tell me everything that happened that day,” then you might want to rephrase the question.

Assuming your question is proper, you should next evaluate whether opposing counsel asserted a valid objection.  Under California law, you can only instruct your witness not to answer when the information sought is privileged (e.g., “attorney-client” (Evid. Code § 950-962),”work-product” (CCP §§2018.010-2018.080)).

In Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, the defense attorney instructed his witness not to answer on the grounds that the information sought was not relevant.  The plaintiff brought a motion to compel.  The court granted the motion, and ordered defense counsel as follows: “you are ordered not to instruct the witness not to answer a question during any deposition in this case unless the matter is privileged.  The proper procedure is to adjourn the deposition and move for protective
Continue Reading

Recently, in Sawyer v. Foster Wheeler LLC, the Fourth Circuit held that a government contractor is entitled to federal jurisdiction, even in product liability failure-to-warn actions, based on the contractor’s assertion that it has a colorable federal defense of government contractor immunity. 860 F.3d 249 (4th Cir. 2017). The big takeaway from this case, however, is that the Fourth Circuit has now joined the Second, Third, Fifth, Seventh, and Ninth Circuits in holding that a government contractor need not demonstrate that it attempted to provide a warning, but was prohibited from doing so by the government. Id.; see Cuomo v. Crane Co., 771 F.3d 113 (2nd Cir. 2014); Papp v. Fore-Kast Sales Co., Inc., 842 F.3d 805 (3d Cir. 2016); Zeringue v. Crane Company, 846 F.3d 785 (5th Cir. 2017); Ruppel v. CBS Corp., 701 F.3d 1176 (7th Cir. 2012); Leite v. Crane Co., 749 F.3d 1117 (9th Cir. 2014). Instead, for the government contractor defense to apply, the contractor is only required to establish that the government dictated or approved the warnings the contractor actually provided.

Sawyer involved the claims of a decedent’s family against Foster Wheeler LLC in Maryland state court, in which they alleged that the decedent’s death was caused by exposure to asbestos while he assembled Foster Wheeler boilers for use aboard Navy vessels in the boiler shop of the Sparrows Point Shipyard, and that the defendants failed to warn him of the dangers associated with asbestos exposure. Sawyer, 860 F.3d at 249. Foster Wheeler removed the case to federal district court based on federal officer jurisdiction conferred as a result of its government contractor defense. Following plaintiffs’ motion, the district court remanded the case and Foster Wheeler appealed. Id.

In support of federal officer jurisdiction, Foster Wheeler asserted that it manufactured boilers for the Navy under the Navy’s strict specifications and that “in the manufacture and sale of boilers and auxiliary equipment for the Navy, including all aspects of warnings associated with that equipment, [it] was acting under an officer or agency of the United States.” Id. In support, Foster Wheeler supplied the affidavits of a former employee and a retired Navy captain, in which they attested: (1) Foster Wheeler designed boilers to match highly detailed ship and military specifications provided by the Navy, that “deviations from these specifications were not acceptable,” and the Navy exercised “intense direction and control over all written documentation to be delivered with its naval boilers;” and (2) “the Navy was well aware of the health hazards associated with the use of asbestos from the early 1920s,” and that the Navy’s information “with respect to the specification and use of asbestos, and the health hazards associated with its use aboard Navy vessels, far exceeded any information that possibly could have been provided by a boiler manufacturer.” Id.

The Plaintiffs argued: (1) that the government contractor defense does not apply to failure-to-warn actions; and (2) the boilers were not constructed
Continue Reading

Oxford Global Resources, LLC v. Hernandez
Superior Court of Massachusetts
(Suffolk, Business Litigation Session)
Docket No. 1684-CV-03911-BLS-2


The Business Litigation Session of the Suffolk Superior Court in Massachusetts invalidated a contractual forum selection clause and dismissed an employer’s action to enforce a noncompetition agreement signed by a former employee, because the employer forced a Massachusetts forum upon a California employee in order to circumvent California public policy against the enforcement of noncompetition agreements.

Plaintiff-employer Oxford Global Resources, LLC (“Oxford”), a recruiting and staffing company specializing in placement of information technology contractors to businesses, hired defendant-employee Hernandez to an entry-level position as an account manager. When hired, Hernandez had to sign an offer letter and a separate “protective covenants agreement” which contained confidentiality, noncompetition, and non-solicitation provisions. The agreement also contained a forum selection clause requiring that any lawsuit arising from the agreement be brought in Massachusetts, and a choice-of-law provision providing for the application of Massachusetts law to the agreement.

Oxford hired Hernandez to work in its Campbell, California, office. Hernandez interviewed for the position in California; signed the offer letter and agreement in California; was trained by Oxford in California; conducted all of his work for Oxford in California; and reported to Oxford supervisors who were located in California. Indeed, the Court found that all relevant events and all of Oxford’s alleged injuries occurred in California. The only connection to Massachusetts, the Court noted, was Oxford’s allegation that its principle place of business was there.

Oxford sued Hernandez in Massachusetts alleging that Hernandez used information regarding the identity of Oxford’s customers to solicit those customers on behalf of a competitor in California. Hernandez moved to dismiss the action under the doctrine of forum non conveniens, which permits dismissal when “the court finds that in the interest of substantial justice the action should be heard in another forum.” Mass. Gen. Laws, ch. 223A, § 5. Despite the forum selection clause, Hernandez prevailed and the Court dismissed the action in order for it to be heard in a California court.

The Court engaged in a three-step analysis leading to dismissal. First, it determined that California law governed the agreement despite the choice-of-law provision favoring Massachusetts law because the agreement was an improper contract of adhesion since Hernandez did not have a meaningful opportunity to negotiate it. Oxford’s offer to Hernandez was a take-it-or-leave-it offer, no negotiation of the agreement’s terms took place, and Hernandez had no bargaining power as an entry-level employee with no previous experience in the industry. The Court discounted the agreement’s boilerplate language that Hernandez had the opportunity to consult a lawyer and that he was not under duress as insufficient to overcome the disparity in bargaining power between the parties.

Significantly, the Court found the choice-of-law provision to be an apparent attempt by Oxford to circumvent California’s public policy against the enforcement of noncompetition agreements. Without the provision, California law would have governed the agreement because California had the most significant relationship to the
Continue Reading

The Second District Court of Appeal, Division Four in Los Angeles handed down a decision in an asbestos case that involved appellate issues pertaining to causes of action for strict products liability and premises liability, primary and secondary (“take-home”) exposure, liability for replacement component parts, and proper jury instructions to be given in asbestos cases on the issue of substantial factor.  Joseph Petitpas v. Ford Motor Company, et al. (Cal. Ct. App., July 5, 2017, No. B245037), an opinion certified for publication on July 5, 2017, presents several factual scenarios to test a number of the decisions in the past decade that continue to shape asbestos litigation in California.   Motions for summary adjudication and defense jury verdicts were affirmed for Ford Motor Company and Exxon Mobile Corporation, while the trial court’s granting of a nonsuit for defendant Rossmoor Corporation was also affirmed.

Background

Plaintiffs  Marline and Joseph Petitpas filed suit against over 30 defendants, alleging Marline’s mesothelioma was caused by exposure to asbestos from sources including, but not limited to, direct exposure from being in the presence of automotive maintenance work, secondary exposure by coming into contact  with Joseph’s clothes and person after he performed automotive maintenance work, primary exposure by visiting Joseph at construction sites while he was employed as an architectural drafter for Rossmoor, and secondary exposure through contact with Joseph’s clothes and person after he  visited construction sites in the course of his employment with Rossmoor.  Marline passed away during the appeal.

Issue One

Prior to trial, Exxon was granted summary adjudication of Plaintiffs’ strict products liability claim.  Exxon, a premises defendant, demonstrated that in the course of Joseph’s work at a service station for which Exxon assumed liabilities, Joseph used replacement clutches and gaskets that came from a local independent auto parts store.  Exxon also showed that Joseph used brakes obtained from a mobile brake service company that not only provided brakes but also performed brake work at the service station.  Exxon’s evidence was sufficient to support an inference that the service station was not primarily in the business of supplying asbestos-containing vehicle parts.  In distinguishing this case from its decision in Hernandezcueva v. E.F. Brady Company, Inc. (2015) 243 Cal.App.4th 249, the Court found the service station was a provider of services rather than a seller or distributor of asbestos-containing parts.  The Court also found no relationship existed between the service station and parts manufacturers in which the station could exert any influence on product safety on the manufacturers.  Exxon was not in the stream of commerce for asbestos-containing vehicle parts to the extent strict liability was warranted.

Issue Two

Exxon had also been granted summary adjudication relating to Plaintiffs’ claims of secondary exposure to asbestos.  The trial court applied Campbell v. Ford Motor Co.  (2012) 206 Cal.App.4th 15 and found that Exxon was a property owner that had no duty to protect family members of workers on its premises from secondary exposure to asbestos used during the court of the property owner’s business.  During
Continue Reading

Plaintiff’s attempt to preclude testimony of expert witness in asbestos related products liability litigation meets impasse—court refuses to circumscribe competent experts to narrowly defined fields or specific licensure.

On Friday, June 9, 2017, Presiding Justice Alice Gibney of the Rhode Island Superior Court, Providence County, issued a decision denying a plaintiff’s motion to preclude the expert testimony of Dr. Michael Graham, proffered by the Defendant Crane Co., in an asbestos-related products liability action.

Plaintiff argued that Dr. Graham was not qualified to provide expert testimony regarding causation of asbestos-related diseases and sought to preclude his testimony, pursuant to Rhode Island Rule of Evidence 702, which provides that:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine ac fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of fact or opinion.

Defendant objected and maintained that the Court should allow Dr. Graham’s testimony as he was an experienced and qualified pathologist.  In the alternative, Defendant requested that any ruling on Plaintiff’s Motion be reserved until Dr. Graham had the opportunity to present his qualifications to the Court.

Plaintiff argued that Dr. Graham’s background as an expert pathologist, expert medical examiner, and expert at determining cause of death did not render him an expert in causation in connection with asbestos-related diseases.  Plaintiff noted that Dr. Graham’s professional publications were almost completely devoid of reference to asbestos and discussion of mesothelioma.  As a result of this alleged deficiency, Plaintiff contended that the testimony was not relevant and that it would be of no assistance to a jury.  Plaintiff urged the Court to circumscribe that limits of permissible expert testimony in a manner analogous to medical malpractice litigation—narrowing competent experts to those with specialized qualifications in narrowly defined fields.

Defendant countered by asserting that Dr. Graham was a board certified pathologist, had studied asbestos-related diseases for over thirty years and had the opportunity to review over 1000 case of asbestos-related diseases throughout his career.  Defendant also emphasized that Dr. Graham testified in more than 750 cases within the United States and specifically reviewed the Plaintiff’s pathology in forming his opinions in the case.

In reaching its decision, the Superior Court reaffirmed that “before admitting expert testimony, the trial justice must evaluate whether the testimony that a party seeks to present to the jury is relevant, within the witnesses’ expertise, and based on an adequate factual foundation.”  (Internal citation and quotation omitted).   The Court explained that it would evaluate the expert’s qualifications by reviewing his education, training, employment and experiences.  Thereafter, the Court would endeavor to determine whether the expert would present scientific, technical, or other specialized knowledge that would assist the trier of fact.

Justice Gibney quoted to the Rhode Island Supreme Court’s Opinion in Raimbeault v. Takeuchi Mfg. U.S., Ltd., 772 A.2d 1056, 1061 (R.I. 2001) with approval for the proposition that an expert witness “need not
Continue Reading