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 order.  You don’t assume the role of judge and instruct a witness not to answer a question at a deposition.  That is a big no-no.”  (Id. at 1011.)

 

In other words, an attorney cannot instruct their witness not to answer in the absence of privilege.  When facing a privilege objection, you obviously should not just take the attorney at their word and ask exactly why the information is privileged.  If it is pretty evident that the information is protected, then you should move on.  If you have your doubts, you could potentially have sufficient grounds for bringing a motion to compel.

 

Lastly, assuming the law is on your side, you will need to meet and confer with opposing counsel, preferably on the record, to see if you can resolve the matter informally.  During this process, point out how your question is valid under Rifkind and how their instruction not to answer in the absence of privilege violates Stewart.  If this fails, then ask the court reporter to mark the transcript and inform opposing counsel that you intend to bring a motion to compel with sanctions.  Sometimes, the threat of sanctions alone will force your opponent to concede.  If opposing counsel “sticks to their guns” then you should have sufficient legal grounds, and a clear a record in support of a motion to compel.  Either way, you are likely to get the answer to your question.

 

In summation, when dealing with an attorney who instructs their witness not to answer where no privilege exists, you should follow these three easy steps:

 

  1. Determine whether your question is proper in under Rifkind. If you asked the witness to provide you with a comprehensive list, or to “state all facts that support their contention,” then you should probably rephrase your question in a more concise manner.
  2. Assuming your question is appropriate, you should meet and confer on the record and tell opposing counsel that they cannot instruct their witness not to answer where no privilege exists pursuant to Stewart.
  3. If your attempts at informal resolution fail, then ask the court reporter to mark the transcript, and inform opposing counsel that you intend to bring a motion to compel with sanctions.

 

 

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 on U.S. naval ships, were manufactured under the direction of Foster Wheeler personnel, and only later transported and installed upon U.S. naval ships.  Id.  In addition, Plaintiffs argued that there is no evidence that the government prohibited Foster Wheeler from warning those individuals constructing the boilers concerning the hazards associated with asbestos exposure. Id.

 

The Fourth Circuit reversed and remanded, finding that Foster Wheeler satisfied all three criteria to establish federal jurisdiction, namely that: (1) it acted under a federal officer; (2) it has a colorable government contractor defense; and (3) the charged conduct was carried out for or in relation to official authority. Id. With regard to the government contractor defense, the Fourth Circuit held that the defense applies to failure-to-warn claims where the defendant can demonstrate that: (1) the government exercised discretion and approved certain warnings; (2) the defendant provided the required warnings; and (3) the defendant warned the government about hazards that were known to it but not to the government.  But, the Court went one step further and held that “the government need not prohibit the contractor from providing additional warnings; the defense applies so long as the government dictated or approved the warnings the contractor actually provided.” Id.

 

In its application of that standard, the Fourth Circuit found that Foster Wheeler demonstrated that the Navy “exercised intense direction and control over all written documentation to be delivered with its naval boilers,” including those manufactured by Foster Wheeler. Id. The Court cited one of Foster Wheeler’s affidavits which stated that “Foster Wheeler would not be permitted, under the specifications, associated regulations and procedures, and especially under actual practice as it evolved in the field, to affix any type of warning or caution statement to a piece of equipment intended for installation onto a Navy vessel beyond those required by the Navy.” Id. It also found that Foster Wheeler actually gave the warnings that were required by the Navy and that the Navy would penalize any deviation. Id. Finally, the Court found that Foster Wheeler credibly demonstrated that the Navy’s knowledge of asbestos-related hazards exceeded Foster Wheeler’s during the relevant time period. Id.  Based on those findings, the Court held that Foster Wheeler had demonstrated that it was entitled to litigate this case in a federal forum. Id.

 

 

 

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 transaction and the parties, as all relevant events occurred there, and because Oxford “alleged no facts and presented no evidence suggesting that Hernandez’s contract and work for Oxford implicated Massachusetts in any way.” The Court therefore concluded that enforcement of the agreement’s choice-of-law provision “would result in substantial injustice to Hernandez by depriving him of the freedom to compete against Oxford in California that is guaranteed under California law, and it would do so based solely on a contract clause that Hernandez had no meaningful opportunity to negotiate when he was hired.”

In the second step of its analysis, the Court determined that the agreement’s forum selection clause was unenforceable under California law. Although generally enforceable, forum selection clauses in combination with choice-of-law provisions that violate public policy are themselves unenforceable as against public policy.

The final step of the Court’s analysis was to determine the proper venue for Oxford’s action in the absence of an enforceable forum selection clause. The Court exercised its broad discretion in concluding that it would be unfair to compel Hernandez to defend himself in Massachusetts, where all relevant events and witnesses were located in California, and the private and public interests weighed heavily in favor of California as the proper venue. Accordingly, the Court dismissed the action in Massachusetts and determined that California was the appropriate forum for Oxford to litigate its claims against Hernandez.

This case presents several key takeaways for Massachusetts practitioners and businesses dealing with employment agreements. For one, boilerplate language in an employment agreement is not free from scrutiny over the true bargaining power in the employer-employee relationship. Moreover, “remembered information” concerning the identity of customers—the employee’s “own memory of customers’ names, needs, and habits”—is too broad to be protected by the employer as confidential information, although an employer’s compilation of such information in a list or database will likely be protected. Finally, the mere location of a company’s principle place of business may not be enough to ensure that selection of that forum for litigation is adequate; some additional aspect of the work performed or the contract entered into must implicate the forum state.

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 the pendency of the Petitpas appeal, the California Supreme Court disapproved Campbell in Kesner v. Superior Court (2016) 1 Cal.5th 1132.  Kesner holds that “[T]he duty of employers and premises owners to exercise ordinary care in their use of asbestos includes preventing exposure to asbestos carried by the bodies and clothing of on-site workers.  Where it is reasonably foreseeable that workers, their clothing, or personal effects will act as vectors carrying asbestos from the premises to household members, employers have a duty to take reasonable care to prevent this means of transmission.”  (Kesner, 1 Cal.5th at p. 1140.)  The Court in Petitpas strictly construed the holding in Kesner with the regard to the requirement that the injured person be a household member.  Marline and Joseph were not married and did not live together at the time Joseph worked at the Exxon station.  Although Joseph argued he still came into contact with Marline, the Court declined to create a new class of secondary exposure plaintiffs.

Issue Three

Rossmoor was granted a nonsuit after Plaintiffs rested.  The trial court granted the nonsuit as to secondary exposures based on a Campbell theory that there is no duty to protect family members of workers on premises, as Plaintiffs contended Marline was exposed to asbestos through laundering Joseph’s clothes, riding in the car they shared, and through physical contact with Joseph at the conclusion of his workday.  As such, Plaintiffs failed to satisfy the requirements under Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953 to show Marline was actually exposed to asbestos-containing materials by Rossmoor with enough frequency and regularity to show a reasonable medical probability that the exposure was a factor in causing her injury.  Even though Kesner had displaced Campbell, Rossmoor’s nonsuit was affirmed on appeal because of the insufficient evidence of causation.  The Court ruled Plaintiffs were unable to bridge the gap between the possibility Marline was exposed via asbestos dust on Joseph’s person and clothes and the necessary showing of frequency, regularity, and proximity of exposure to rise to a level that would increase one’s risk of the development of an illness.

Additionally, Rossmoor moved for nonsuit as to the claim of primary exposure from Marline’s visits to the Rossmoor constructions sites, on the basis that Marline always visited after work had concluded for the day.  Plaintiffs provided no evidence that dust was present when Marline visited a Rossmoor site.  Citing Shiffer v. CBS Corporation (2015) 240 Cal.App.4th 246, 252 for the premise that mere presence at a site where asbestos was present is insufficient to establish legally significant asbestos exposure, the Court held Plaintiffs presented no evidence there were respirable asbestos fibers present at a site when Marline visited.

Issue Four

Joseph Petitpas claimed error by the trial court with respect to jury instructions.  One alleged error was that the Court gave a special instruction requested by Ford that stated “Ford Motor Company is not liable for Marline Petitpas’ exposure to asbestos that comes from other companies’ brakes, clutches or gasket products installed on Ford vehicles by parties other than Ford.”  The basis for this instruction is the O’Neil v. Crane Co. (2012) 53 Cal.4th 335 case that held “a product manufacturer may not be held liable in strict liability or negligence for harm caused by another manufacturer’s product unless the defendant’s own product contributed substantially to the harm, or the defendant participated substantially in creating a harmful combined use of the products.”  The Court held no design defect existed because the Ford vehicle did not require the use of asbestos-containing components in the brakes and Ford had no control of replacement brakes placed into the stream of commerce by other manufacturers.

Joseph Petitpas also argued the trial court erred in reading CACI jury instruction numbers 430 and 435, as opposed to just 435.  The Court of Appeals held that because 435 states “unless there are other defendants who are not asbestos manufacturers or suppliers, do not give CACI No. 430”, and Exxon as a premises defendant was neither a manufacturer nor a supplier, it was proper to instruct with 430.  The primary difference between 430 and 435 is that 430 focuses on the harm resultant from defendant’s conduct while 435 focuses on the risk of harm from defendants’ conduct.

Issue Five

The Court of Appeals affirmed the verdict in favor of Exxon after Joseph argued the evidence did not support the verdict.  The jury found that Exxon controlled the service station that Marline was exposed to asbestos at, and that Marline’s exposure at the station was a substantial factor in contributing to her risk of developing mesothelioma.  The jury did not find, however, that Exxon knew, or through the exercise of reasonable care should have known, that there was a condition at the station that created unreasonable risk to Marline.  Joseph claimed it was uncontroverted Exxon knew of the risks attendant to such an environment.  The Court of Appeals, however, agreed with Exxon that the evidence presented at trial did not show that Exxon had such knowledge or could have even come to know as such, as in the relevant time period—and even today—there are no studies documenting that performing brake work increases one’s risk for the development of mesothelioma.

Although the Petitpas decision did not create new law, it is a good example of how the courts will interpret, at least for now, increasingly common issues in California asbestos litigation with respect to causation and duty.

 

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 have a license in a narrow specialty, nor hold a particular title, as long as his or her knowledge, skill, experience, training, or education can deliver a helpful opinion of the fact-finder.” (Internal quotation omitted).

The Court also distinguished Soares v. Vestal, the case relied upon to bolster her argument that expert testimony should be confined to the expert’s field of expertise as required in medical malpractice cases.  632 A.2d 647, 647-48 (R.I. 1993).  In particular, the Court found that Soares was limited to the facts of that particular case and did not broadly pronounce that experts need be certified in a specific area in order to testify in medical malpractices.  Instead, the Court opined that the gravamen of the analysis is whether the opinion will aid the fact-finder and that decision rests soundly within the discretion of the trial justice.

Finally, the Court delineated Dr. Graham’s credentials as a board certified anatomic and clinical pathologist and serving Chief Medical Examiner, as well as his educational background, research, publications and experience.  Based on those qualifications, the Court found that Dr. Graham was qualified to testify to causation regarding asbestos-related diseases under Rule 702, that the testimony was relevant, and that an adequate factual foundation for the formation of his opinions flowed from his review of the Decedent’s medical records.