Plaintiff’s Age and Medical Condition Proper Criteria under Statute to Set Trial Preference California Court of Appeal, First Appellate District, March 20, 2018

CALIFORNIA — The Foxes brought this action against several defendants for Ms. Fox’s development of lung cancer and asbestosis from alleged exposure to asbestos containing products from 1954-63. The plaintiffs moved for trial preference pursuant to Code 36 as Ms. Fox was 81 and suffered from declining health. Ms. Fox had also undergone chemotherapy, which had caused side effects according to the plaintiff’s attorney. Of the 18 defendants, only Metalclad Insulation and Sequoia Ventures opposed the motion.

The trial court denied the motion to set trial preference. On appeal, the court noted that the trial court was not obligated to give its reasoning as the issue was reviewable for abuse of discretion. However, the choice of the applicable legal standard was to be reviewed de novo. The court noted that Section 36 of the Code permitted claimants over 70 years in age to petition for trial preference provided the claimants meet certain criteria. The Foxes argued that the proof of clear and convincing evidence as to health was clearly established despite Metalclad’s opposition thereto. The court quickly agreed and pointed out that counsel for Metalclad conceded she had “no idea why that was in the opposition brief.” According to the court, Metalclad had “conflated” the sections of the Code which confused the trial court. The court moved on to the next statutory element of whether “death or incapacity might deprive her of the opportunity to have her case effectively tried.” The court interpreted this section to mean that a plaintiff need not show she will die but rather that her condition is such that the court ought to prevent the prejudice that may come should the plaintiff not be available for trial. The court was not persuaded by Metalclad’s argument that the trial court took a balancing approach in application of the statute. Relying on a recent photo of plaintiff SCUBA diving, Metaclad asserted that the trial court “assessed” the veracity of the plaintiff’s declarations. The court disagreed and found it uncontroverted that the plaintiff suffered from stage IV lung cancer and that she suffered from side effects of the chemotherapy. She may be able to participate in trial now but that might not be the case for long according to the court.

Consequently, the court ordered a trial setting within 120 days of its opinion.

Read the full decision here.

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