Also, the practical effect of this order has been that if one defendant uses its allotted challenge to a judge in one case in the consolidated group, the court will deny any additional challenge of any defendant in another case in the group.
Defendants in the San Francisco Asbestos Litigation have routinely objected to these consolidations as being prejudicial and denying defendants their due process rights. Most recently, in an especially egregious situation, two very dissimilar cases were consolidated for trial after jury selection had already begun in one of the cases. One was a wrongful death mesothelioma action and the second a personal injury kidney cancer action. Foster Wheeler, a party to one of the cases filed a writ with the court of appeal.
In an unpublished decision, the court of appeal found that the trial court abused its discretion and vacated the consolidation. As a result, earlier this week, the San Francisco Superior Court issued an order sua sponte vacating all consolidation orders in San Francisco asbestos matters. In an order signed by Judge A. James Robertson II dated May 14, 2008, the Court ruled that all previously consolidated asbestos matters are now grouped for pretrial discovery and administrative purposes only.
This order will not effect the trial dates originally set for asbestos groups. Rather, those cases will remain grouped until the time of trial. At that time, the trial judge will have the discretion to consolidate previously grouped matters (hopefully with a more critical eye toward case law requirements for consolidation of cases), or to try each case individually.
This is a very positive development for defendants sued in asbestos litigation in San Francisco, where it has long been believed that defendants lost several important rights and were often unfairly prejudiced by the court's consolidation methods. Of most importance, by having matters grouped rather than consolidated, defendants are no longer bound by a co-defendant's previous peremptory challenge in a separate matter within the group. One peremptory challenge will now lie with each side, in each individual case. Representatives of all plaintiff and defense firms, as well as Berry & Berry were present and given the opportunity to be heard on the matter.
If you would like more information on this subject, please contact Lisa Ackley, Ingrid Campagne, Deidre Cohen Katz, or any other WFB&M attorney with whom you have an existing relationship.
