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.

 

celldriveOn December 23, 2016 in Santa Clara, California, in Modisette v. Apple, Inc., 16CV304364, the family of a five-year-old girl killed in a car crash on Christmas Eve 2014 filed a lawsuit against Apple alleging that Apple’s FaceTime application distracted a driver and caused the death of Moriah Modisette.  Like the majority of distracted driver accidents, this one could have been prevented. On the one hand, the driver could have waited until he stopped driving before using the FaceTime application. On the other hand, Apple could have designed a lock-out feature or warned FaceTime users of the dangers of driving while FaceTiming.

In Modisette v. Apple, Inc., the court must decide whether a smartphone manufacturer like Apple has a duty to protect the public and FaceTime users by preventing the use of the application while driving. FaceTime is a factory-installed video communication service similar to Skype and Google Hangouts that allows Apple device users to conduct one-on-one video calls. Ultimately, this case raises an important question: Should a smartphone manufacturer be liable for injuries caused by distracted drivers using a phone application, and if so, are distracted drivers a superseding intervening cause?

Plaintiffs allege that Apple’s iPhone was defective because Apple failed to install and implement the safer alternative design for which it sought a patent in December 2008, which was later issued in April 2014. The alternative design would “lock out” a driver’s ability to FaceTime while driving. In addition, Plaintiffs allege that Apple failed to warn drivers that FaceTiming while driving was likely to be dangerous.  Plaintiffs further allege that the conduct of the driver is “inextricably intertwined” with Apple’s failure to implement the patented lock out feature, and as a result, Apple allegedly failed to exercise reasonable care.

This is not the first time Apple has been involved in a products liability lawsuit arising out of an accident caused by a distracted driver. In 2015, in Meador v. Apple, Inc. (2016) WL 4425527 (E.D.Tex.), Apple was sued for a 2013 crash involving a driver distracted by checking her text messages. The question raised in Meador is similar to the Modisette’s case: Does a smartphone manufacturer have a duty to prevent drivers from using the device while driving? On August 16, 2016, in a pretrial report and recommendation, United States Magistrate Judge K. Nicole Mitchell recommended that the case be dismissed with prejudice because a “real risk of injury did not materialize until [the driver] neglected her duty to safely operate her vehicle by diverting her attention to the roadway.” Meador v. Apple, Inc. (E.D. Tex., Aug. 16, 2016) WL 7665863, at 4. Thus, Judge Mitchell opined that Apple’s failure to lock out the driver did “nothing more than create the condition that made Plaintiffs’ injuries possible.” Id. As a result of Judge Mitchell’s recommendation, the Meador case has been stayed pending an order from the District Judge on Apple’s Motion to Dismiss.

In a similar case involving text messages against a network provider in Oklahoma, in Estate of Doyle v. Sprint/Nextel Corp., (Okla. Civ. App. 2010) 248 P.3d 947, the Oklahoma court of appeals affirmed the trial court’s granting of Sprint’s motion to dismiss.  The court held that “the purchase and use of a cellular phone or cellular service are not inherently dangerous acts, nor is it foreseeable that the sale and subsequent use of such a phone would cause an accident. Even if using a cell phone while driving is foreseeable, it is not necessarily foreseeable that it will cause a collision or unreasonably endanger a particular class of persons.[citation omitted] It is not reasonable to anticipate injury every time a person uses a cellular phone while driving.” Estate of Doyle v. Sprint/Nextel Corp., at 951.

Although the Modisette case was recently filed, the outcome will have rippling effects. The court will ultimately have to decide whether FaceTiming while driving was an inherent danger in the purchase of an iPhone that Apple should be responsible for. Should plaintiffs be successful, the case will likely invite waves of future lawsuits against application developers and manufacturers of cars, navigation systems, radios, and of any device that could have prevented a distracted driver, but failed to do so.

 

ffonseca_articleCalifornia has become a hub for asbestos litigation.  Its plaintiff-friendly law and juries have attracted plaintiffs from both California and across the country.  A case currently pending in the Supreme Court of California concerning whether a duty is owed to a plaintiff who alleges “take-home” asbestos exposure could have a major impact on whether California becomes an even greater hotbed for asbestos litigation.  Should the Court impose a duty on an employer for “take home” exposures, this expansion of an employer’s duty is likely to lead to increased asbestos filings as plaintiffs seek out attractive jurisdictions based on substantive legal doctrine.

Recently, the Supreme Court of California heard oral arguments in coordinated “take-home” asbestos cases. In both cases, at issue is whether an employer owes a duty of care to members of an employee’s household who could be affected by asbestos brought home on the employee’s clothing.

In Kesner v. Superior Court, 226 Cal.App.4th 251 (2014), plaintiff, the nephew of a brake manufacturer’s employee, alleged that he developed mesothelioma as a result of exposure to asbestos from his uncle’s dirty and dusty clothing during frequent visits to his uncle’s home. In finding that the brake manufacturing company employer owed plaintiff a duty of care, the court found that “[a]s a general matter, harm to others from secondary exposure to asbestos dust is not unpredictable.” Kesner 226 Cal.App.4th at 259. Further, the harm “from a lack of precautions to control friable asbestos that may accumulate on employees’ work clothing is generally foreseeable.” Id.  As for employers, the court found that “extending the duty of care to [an employee’s household members or long term occupants of a residence] does not threaten employers with potential liability for an intangible injury that can be claimed by an unlimited number of persons.”  Id. at 261. Thus, the court not only imposed a duty on an employer for “take home” exposures, it extended a duty to any guest that frequents an employee’s home.  It is important to note, however, that despite the fact that plaintiff claimed that he was exposed to asbestos through his uncle’s clothing, plaintiff’s claim was premised on a theory of products, not premises, liability.

That distinction is important, as a month later a different appellate court ruled against extending a duty of care based on “take home” exposure in the context of a case alleging premises liability. In Haver v. BNSF Railway Co., 226 Cal.App.4th 1104 (2014), the heirs of an employee’s deceased wife claimed that she developed mesothelioma as a result of exposure to asbestos from the clothing her husband wore home while employed by the defendant company. Deciding not to follow the earlier Kesner decision, the Haver court distinguished the two cases by pointing out that Kesner was a products case while Haver involved allegations of premises liability. Importantly, though, the court noted that courts should be wary of the consequences of extending employers’ liability too far. Id. at 1110.

A decision by the California Supreme Court which extends a duty to the family and/or guests of an employee is likely to result in a huge uptick in asbestos claims filed in California, as plaintiffs look for favorable jurisdictions in which to bring their cases.  That is what has occurred in Illinois, where the Illinois Supreme Court upheld the appellate court’s reversal of an order granting an employer’s dismissal based on the lack of a duty to an employee’s spouse, and allowed plaintiff to re-plead foreseeability.  See Simpkins v. CSX Transp., Inc., 2012 Ill. 110662.  Conversely, multiple jurisdictions, such as Georgia, have shut the forum shopping door by holding that employers and premises owners owe no duty to a member of a household injured by take home exposure to asbestos. CSX Transp., Inc. v. Williams, (2005) 278 Ga. 888.  

Should the Supreme Court of California expand the scope of an employer’s duty to include “take home” exposure, venue selection flexibility and favorable new legal doctrine may very well cause a seismic shift in asbestos filing activity, leaving California at the epicenter.

 

About the Author

Freddy Fonseca is an associate with Manion Gaynor & Manning and an FAA licensed airframe and power plant technician. Clients have come to rely on Freddy for his eight-year career as an aircraft maintenance technician, knowledge of federal aviation regulations and airport operations, and enthusiasm for aviation, to defend toxic tort and products liability aviation cases.  Prior to attending law school, Freddy was an aircraft technician for a major airline performing engines changes, sheet metal repairs, brake changes, and avionics and systems troubleshooting.  Utilizing his aviation experience, he brings a unique practical perspective to his civil litigation law practice.