Trial Preference Granted on Appeal for Kidney Cancer Plaintiff Court of Appeal, First District, Division 2, California, January 30, 2019
CALIFORNIA — A three judge appellate panel in California issued a writ of mandate requiring the trial court to vacate its prior order, and to grant oetitioner/olaintiff David Ellis’ motion for trial preference. The plaintiff alleged that he suffered from asbestos-related kidney cancer and pleural disease, and filed suit against numerous defendants in 2016. After having his case set for trial and then continued on four occasions due to lack of courtrooms, the plaintiff moved for trial preference under California Code of Civil Procedure section 36(a), which requires a trial court to schedule a trial within 120 days if the moving party is over 70-years-old, has a substantial interest in the case, and his or her health is such that preference is necessary to avoid prejudicing his or her interest in the litigation.
The plaintiff’s motion was supported by a declaration from Richard A. Levy, M.D., a cardiologist and internist, that discussed the plaintiff’s conditions. The trial court denied the plaintiff’s motion in part because Dr. Levy possessed no training or experience related to the treatment of cancer. The panel concluded that the trial court had overlooked Dr. Levy’s background as an internist, and that he was certainly competent to adequately review the plaintiff’s records and opine that his ability to participate in trial is impaired and will continue to decline.