The Brief Case: DRI Committee News

Product Liability: An Update from the PLC

Shopping for Preference in California

By Edward R. Hugo and Bina Ghanaat

Beaches, mountains, weather, wineries, world class cuisine, and unparalleled diversity. California has everything, including a number of laws that favor asbestos plaintiffs. See, e.g., California Code of Civil Procedure § 2025.295(b)(2) (in mesothelioma and silicosis cases where a licensed physician attests in a declaration that there is substantial medical doubt of the survival of the deponent beyond six months, defendants collectively are limited to a total of 14 hours even if there are 100+ defendants and even though deponent’s counsel has unlimited time to examine their client on both direct and re-direct examination, including trial preservation testimony); id. § 377.34(b) (“. . . in an action or proceeding by a decedent’s personal representative or successor in interest on the decedent’s cause of action, the damages recoverable may include damages for pain, suffering, or disfigurement if the action or proceeding was granted a preference pursuant to Section 36 before January 1, 2022, or was filed on or after January 1, 2022, and before January 1, 2026.”) One law worth shopping for is Code of Civil Procedure 36, California’s trial preference statute, which requires courts to set a civil action “for trial not more than 120 days” from the granting of the motion and limits any continuance to “no more than 15 days and no more than one continuance.” To qualify, a plaintiff must be over the age of 70 or provide “clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months,” or “that the interests of justice will be served by granting this preference.” This has led to an ever-increasing number of out-of-state plaintiffs choosing to file claims in The Golden State. As some defendants have noted, “[t]here is a growing consensus that California has become ‘the courthouse to the world,’ as out-of-state plaintiffs – lured by a perception that there are favorable laws and generous juries – travel here to invoke the state’s jurisdiction.” Memorandum in Support of The Colgate-Palmolive Company’s Motion to Stay for Forum Non Conveniens in Elaine Adelia Hickey Herman, et al. v. 3M Company, et al., Los Angeles Superior Court, Case No. 22STCV32540, at pp. 1:1-4. Forum shopping is problematic under any circumstances, but it is especially problematic now as California courts struggle to work through backlogs created by the COVID-19 pandemic.

For more than 30 years, California law has been clear: when resolving aforum non conveniens motion pursuant to Code of Civil Procedure section 430.10, “the fact that an alternative jurisdiction’s law is less favorable to the litigant than the law of the forum should not be afforded any weight . . . provided, however, that some remedy is afforded.” (Stangvik v Shiley, Inc. (1991) 54 Cal. 3d 744 at 745 (emphasis added).) This is because if “weight is given to the circumstances that the law in the forum state is more favorable to the plaintiff than the one in the alternative jurisdiction,” litigation in the forum state “would increase and further congest already crowded courts.” Id. (internal citations omitted). No case since Stangvik has altered its holding.

Despite Stangvik’s holding, plaintiffs who shop for trial preference in California contend that they are entitled to cut the litigation line in front of actual California residents even though (1) they are not current residents of California, (2) they have lived outside of California for the majority of their lives, (3) none of their medical providers are located in California, (4) many of the relevant witnesses are located outside of California, (5) the vast majority of defendants are not residents of, and do not have principal places of business, in California, and (6) plaintiffs’ suit is not barred by the statute of limitations in the proposed alternate forum. Elaine Adelia Hickey Herman, et al. v. 3M Company, et al., Los Angeles Superior Court, Case No. 22STCV32540. The problem with the argument “the fact that plaintiffs [in California] can get a really early trial date trumps all else” is that it “open[s] the doors in California for anybody who can sue a defendant in California regardless of whether all other defendants have connections to California.” Transcript of hearing re forum non conveniens motion in Elaine Adelia Hickey Herman, et al. v. 3M Company, et al., Los Angeles Superior Court, Case No. 22STCV32540 at p. 6 (April 5, 2023).

More troublingly, as recently recognized by the Superior Court of California for the County of Los Angeles in a ruling that was upheld on appeal, such an argument: (See the order denying Plaintiffs’ petition for writ of mandate in Elaine Adelia Hickey Herman, et al. v. 3M Company, et al., Los Angeles Superior Court, Case No. 22STCV32540 (Court of Appeal of the State of California, Second Appellate District, Division One, No. B328352).

… seems to then create all kinds of tactics if Plaintiffs know that that’s - - if that trumps everything, then Plaintiffs can file in California even if the case really – it makes sense for it to be someplace else and then just say, ‘Well, now that we filed in California and we have spent six months or so dealing with all the preliminary stuff and getting discovery, now we can’t go to the other state because the plaintiff is about to die.’ 

And if this is the trump card and – then it has to stay here even if it really makes sense for it to be someplace else, then that allows Plaintiffs to always require it to stay in California. And I didn’t see any law that says that that’s a factor to consider.    

So, then, why don’t all Plaintiffs just file in California, you know, everybody brings their motions and everybody is doing discovery and it takes a while for the motions to make their way through the system and now it’s six months later and now we’re finally getting to a time – or decisions on these motions and Plaintiff stands up and says, ‘Well, Plaintiff is going to die soon, therefore, we can’t go to another state,’ I mean, would just – it becomes a tactic that does away with all the various factors of balancing that’s supposed to be done. Transcript of hearing re forum non conveniens motion in Elaine Adelia Hickey Herman, et al. v. 3M Company, et al., Los Angeles Superior Court, Case No. 22STCV32540 at p. 15 (April 5, 2023).

Given this tactic, it is incumbent upon defendants to ascertain the viability of a forum non conveniens motion as soon as possible and, critically, prior to plaintiffs filing a motion for preference. Before a plaintiff’s deposition is noticed, defendants should seek detailed information by way of written discovery regarding the dates and locations of plaintiff’s residence, the locations of witnesses, the locations of medical providers, and where and when plaintiff alleges exposure to asbestos. Defendants should also determine who amongst them is incorporated in (or has a principal place of business in) California and whether that defendant will consent to jurisdiction outside of California. Only in this way can defendants seek to stem the ever-growing tide of out-of-state litigants seeking to take advantage of California’s plaintiff-friendly laws. 

Edward R. Hugo is a trial attorney, appellate lawyer, litigator and litigation manager for cases involving products and premises liability, toxic torts, environmental claims, construction defect, personal injury, wrongful death, insurance, professional negligence, sexual molestation and criminal law. He has also been retained as an expert witness and testified in trial, arbitration and deposition regarding: the duties of defense counsel, the effectiveness of defense strategies, the reasonableness of settlement values and defense costs, and insurance coverage issues. 

The Big Problems With Mini-Openings

By Edward R. Hugo and Bina Ghanaat

Many states now encourage, or even require, mini-opening statements. From the judiciary’s point of view, these statements are intended to increase the efficiency of the juror selection process by disclosing facts which spark the interest of potential jurors and promote their willingness to serve. In reality, however, mini-opening statements can be manipulated to increase the inefficiency of the juror selection process by amplifying a juror’s feelings on case-specific subjects to the point of creating more challenges for cause. 

In contrast to a traditional Opening Statement that is designed to convince jurors of the strength of a party’s case, mini-opening statements often purposefully omit the party’s best facts and disclose the worst facts in order to promote negative opinions about the case. The expression of those negative opinions serves as a means of identifying and eliminating potential jurors who are critical of the weaknesses of a party’s case. 

Additionally, mini-opening statements are often used by plaintiffs’ counsel to introduce the damages being sought. Potential jurors’ reactions to the types and amounts of damages sought are the greatest indicator of whether they will be pro-plaintiff or pro-defense in a civil case. And, introducing large amounts can cause strong reactions. For example, this is an asbestos plaintiffs’ attorney’s proposed mini-opening statement in a wrongful death case: 

Good morning ladies and gentlemen, my name is [Plaintiffs’ Counsel] and I am an attorney with [Plaintiffs’ Law Firm]. We represent the people bringing the lawsuit in this case. 

Our clients’ father was diagnosed with a cancer called mesothelioma in 2019, and died of mesothelioma shortly after his diagnosis. Our clients’ father worked as a child in the Los Angeles area in the family business, with his father and brothers, maintaining and renovating two hundred apartments, using materials that included joint compounds, to seal up and smooth joints between sheets of drywall that make up walls. Our clients’ grandfather was thrifty so he would purchase whatever the cheapest joint compounds were for sale. Because of this, the boys worked with six different joint compounds. One of the brands of Joint Compound was made by [ ], the Defendant in this case. These joint compounds and other building materials they worked with contained asbestos. 

Mesothelioma is a cancer, and is caused by exposure to asbestos. Asbestos is a naturally occurring mineral that was added to construction products. The evidence will be that the father’s exposures to all these asbestos-containing materials, taken together, caused his deadly cancer. 

Prior to his diagnosis, our clients’ father worked in Northern California as a chiropractor. He was sixty-seven years old when he passed. Prior to his death he had various medical issues such as being severely obese and having two heart attacks. These medical conditions were being treated by his doctors. 

At the end of the case the jury will be asked to provide money for the losses caused by [the Defendant]. There are two types of damages in a case like this. One type is called economic damages and is to pay for such things like lost wages and medical expenses. Those economic damages are not in dispute in this case. The other type is to pay for non-economic or nontangible damages. This would be for the loss of [the Plaintiff’s] love, his companionship, his comfort, his care, his assistance, his protection, his affection, his society, and his moral support. Essentially, the loss of everything that makes us human and what makes us enjoy life. We are going to ask you to be open to the possibility that these non-tangible damages are worth over 34 million dollars. 

Wennerholm vs. DAP Products, Inc., JCCP 4674, Los Angeles Superior Court, Case No. 19STCV15874 (1/31/23), emphasis added. 

The first problem with presenting exorbitant numbers, such as $34 million in the example above, is that it directly violates the law which requires that jurors “must use [their] judgment to decide a reasonable amount based on the evidence and [their] common sense”. CACI No. 3921 (emphasis added). Thee second problem is that the numbers are intended to offend people who do have common sense and drive them off of the jury. The third problem is that research has shown that when attorneys throw out large amounts, they drive up a potential verdict by desensitizing the prospective jurors to huge numbers and suggesting those huge numbers are “reasonable” amounts for a verdict. (See, e.g., J. Campbell et al., Countering the Plaintiff’s Anchor: Jury Simulations to Evaluate Damages Arguments, 101 Iowa L. Rev. (2016); see also Mollie W. Marti & Roselle L. Wissler, Be Careful What You Ask For: Anchoring Effects in Personal Injury Damage Awards, 6 J. EXPERIMENTAL PSYCHOL. APPLIED 91, 91–103 (2000); Gretchen B. Chapman & Brian H. Bornstein, The More You Ask For, the More You Get: Anchoring in Personal Injury Verdicts, 10 APPLIED COGNITIVE PSYCHOL. 519 (1996); Verlin B. Hinsz & Kristin E. Indahl, Assimilating to Anchors for Damage Awards in a Mock Civil Trial, 25 J. APPLIED SOC. PSYCHOL. 991 (1995); John Malouff & Nicola A. Schutte, Shaping Juror Attitudes: Effects of Requesting Different Damage Amounts in Personal Injury Trials, 129 J. SOC. PSYCHOL. 491 (1989); Edward (Ted) L. Sanders, et al., Reptiles, Picassos, and Stealth Bombers: Combating Inflated Non-Economic Tort Damages, MUNICIPAL LAWYER: THE JOURNAL OF LOCAL GOVERNMENT LAW, pp. 19-23 (Vol. 60, No. 6, Nov./Dec. 2019).) Anchoring by counsel is inherently unfair and prejudicial during all phases of trial, especially during voir dire when no evidence has been presented yet and the jurors’ only information is plaintiffs’ counsel’s argumentative suggestion regarding the proper order of magnitude of damages. 

Indeed, various federal circuits have noted that suggestions by counsel of a specific dollar amount, including during summations, is problematic because such suggestions tend to “anchor the jurors’ expectations of a fair award at a place set by counsel, rather than by the evidence.” (Consorti v. Armstrong World Indus., Inc., 72 F.3d 1003, 1016 (2d Cir. 1995)  (judgment vacated on other grounds by Consorti v. Owens-Corning Fiberglas Corp. (1996) 518 U.S. 1031); see also Waldorf Shuta (3d Cir. 1990) 896 F.2d 723, 744 (holding that lawyers may not “request a specific dollar amount for pain and suffering in [their] closing remarks”). Cf. Sandidge v. Salen Offshore Drilling Co. (5th Cir. 1985) 764 F.2d 252, 258 . (“The principle distinguishing proper from improper inquiry on voir dire is that examination cannot search the result of a case in advance.”).) 

Seeking to Preclude “Anchoring” in California 

Unfortunately, unlike federal jurisprudence, California case law evinces a lack of understanding (or willful ignorance) of the dangers of anchoring, as shown by Fernandez v. Jimenez (2019) 40 Cal.App.5th 482, which is often cited by plaintiffs for the proposition that informing jurors of the damages a plaintiff seeks (hundreds of millions of dollars in Fernandez) is not improper preconditioning. Thus, any motion in limine or trial brief by defense counsel seeking to preclude reference to “tens of millions” or “hundreds of millions” of dollars during voir dire (and beyond) will have to contend with Fernandez. 

Several potential lines of argument for distinguishing Fernandez are as follows:

• Fernandez came before the appellate court after the trial court denied a motion for new trial on the ground that the damages were excessive. Given this procedural posture, the appellate court noted that “[t]he amount of damages to be awarded is a question of fact committed, first to the discretion of the trier of fact, and then to the discretion of the trial court on a motion for new trial,” and, accordingly, “[a]n appellate court gives great weight to the determinations of the jury and the trial court.” (Id. at p. 490 (internal citations omitted).) By contrast, at the trial court level, the court is fully vested with the discretion to determine the scope of proper voir dire and need not defer to any other court. 
• In Fernandez, the plaintiffs’ counsel did not introduce the figure of $200 million to the jury, but rather a juror asked if they could award “$200 million-plus.”
• The Fernandez court found that “even if informing prospective jurors that plaintiffs were seeking hundreds of millions of dollars . . . was error, it was not prejudicial” (emphasis added). Of course, at the trial court level, the court is not determining whether an error is prejudicial, but rather is seeking to avoid such errors as allowing an attorney to precondition the jury.
• Ultimately, in Fernandez, the jury awarded less than a total of $200 million, “suggesting the plaintiffs’ demand for $200 million did not inflame the jury’s passions.” (Id. at pp. 493-494 (emphasis added).) Whether an improper comment by a plaintiff’s attorney will “inflame the jury’s passions” by the end of the case is not a risk that defendants can take; instead, the trial court should foreclose any such possibility at the voir dire stage rather than permitting a case to go to verdict with a tainted jury. 

If plaintiffs’ true aim is to seat an unbiased jury, they can ascertain jurors’ opinions regarding the measure of damages in a non-prejudicial way by asking questions like the following: “Is there a certain dollar amount that you feel would be too high to award in this case even if the plaintiffs prove their case?” Questions like the foregoing avoid preconditioning jurors to specific dollar amounts by eliciting the jurors’ own views regarding damages rather than injecting plaintiffs’ counsel’s opinion regarding the potential verdict before any evidence has been presented. If plaintiffs instead insist on presenting specific (and excessive) dollar amounts to the jury, their aim is clear: to “anchor” the jurors’ expectations of what a “reasonable” award is, and to continue to drive up verdict amounts. Given the big problems presented by mini-openings, defense counsel needs to raise the issues presented in their case with the judge as soon as possible and before any potential jurors are called to serve.

Edward R. Hugo is a trial attorney, appellate lawyer, litigator and litigation manager for cases involving products and premises liability, toxic torts, environmental claims, construction defect, personal injury, wrongful death, insurance, professional negligence, sexual molestation and criminal law. He has also been retained as an expert witness and testified in trial, arbitration and deposition regarding: the duties of defense counsel, the effectiveness of defense strategies, the reasonableness of settlement values and defense costs, and insurance coverage issues. 

Bina Ghanaat is a Partner with experience in toxic torts, insurance coverage, bad faith, habitability, and personal injury cases. She manages her cases from inception to resolution, handling discovery, depositions, law and motion, and trial preparation in state and federal courts. Ms. Ghanaat has defended a wide range of clients, including manufacturers, suppliers, contractors, insurance carriers, building owners, and trucking companies. She has drafted numerous motions for summary judgment that have resulted in dismissals of her clients or significantly reduced demands. She has also drafted and argued successful motions for summary adjudication as to punitive damages and various causes of action in asbestos matters venued in San Francisco and Alameda. For those cases in which a dispositive motion has not been viable, Ms. Ghanaat has prepared them for trial in an efficient manner with an emphasis on achieving optimal results for her clients. In Fall 2020, Ms. Ghanaat was co-counsel in one of the first “virtual” trials in Alameda County. 

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