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California Legislature Limits Defendants’ Examination in Mesothelioma Cases

Attorney: Kendra E. Bray, Derek S. Johnson | Published 9.5.19

On August 30, 2019, CA Governor Gavin Newsom signed into law a bill that significantly limits the defense cross-examination time in depositions in cases where individuals have been diagnosed with mesothelioma or silicosis. Effective January 1, 2020, Senate Bill 645, codified as Code of Civil Procedure section 2025.295, limits defendants’ examinations of plaintiffs to seven (7) hours of total testimony if a licensed physician provides a declaration attesting that the plaintiff suffers from mesothelioma or silicosis, “raising substantial medical doubt of the survival of the deponent beyond six months.”

Defendants are provided some reprieve from this seven-hour limit in that they may request additional time to depose the plaintiff, and the Court makes the determination – at its discretion – that an extension of time is in the interest of fairness based on the number of defendants appearing at the deposition and further makes a determination that the health of the plaintiff does not appear to be endangered by the grant of additional time. If the Court makes these determinations, then it may grant an additional three (3) hours of testimony for a total of ten (10) hours of examination by defendants if there are more than ten (10) defendants appearing at the deposition, or an additional seven (7) hours of testimony for no more than fourteen (14) hours of total examination by defendants if there are more than twenty (20) defendants appearing at the deposition.

Notably, there is no time limit on the examination of a plaintiff by their own counsel.

While the deposition limitations apply only to those cases where plaintiffs can provide a declaration stating that the plaintiff’s survival beyond 6 months is in substantial doubt, we anticipate that Plaintiffs’ firms will begin obtaining such declarations from physicians and invoking the limitation in most, if not all, of their personal injury mesothelioma and silicosis matters. There is no requirement that the declaration come from a physician with experience treating mesothelioma or silicosis patients, or have a specialization or board-certification in pulmonology or oncology.

A defense position in opposition to the application of the time limits in Section 2025.295 may exist, even where there is a doctor’s declaration finding substantial doubt of survival beyond six months. Specifically, if the defense will dispute the mesothelioma diagnosis, it is arguable that Section 2025.295 is not triggered.

In the majority of cases where the diagnosis of mesothelioma is not disputed and Section 2025.295 is applied, defendants will face significant obstacles in conducting a thorough and complete deposition under the new time limits. Asbestos cases regularly involve work histories and allegations of exposure relating to hundreds of different products, defendants, employers and jobsites spread over the course of many decades. As a result, it is not uncommon for plaintiff depositions to take place over the course of numerous days and hours. These new time limits in mesothelioma cases, where the potential economic and non-economic damages are high, will greatly hamper defendants’ ability to effectively develop alternative exposures and meet their alternative cause burden under Proposition 51, and to fully examine plaintiffs on topics related to other defenses such as warnings, knowledge, and government contractor, making it even more difficult for defendants to defeat California’s increasingly strict standards of causation in mesothelioma cases. The potentially prejudicial impact of these time limits will be compounded where defendants are not provided with detailed and substantive responses to written discovery in advance of depositions or encounter evasive or non-responsive plaintiffs.

For more information, please contact Derek Johnson or Kendra Bray.