First District Eyes Joint Asbestos Trial

Posted on Saturday, 27 October 2007

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The Recoreder
By Matthew Hirsch
October 27, 2007
Judge Tomar Mason

 

With sworn jurors waiting in the wings, a pair of asbestos suits in San Francisco Superior Court are on hold as the First District Court of Appeal reviews a judge’s 11th-hour decision to send both cases to trial before the same jury.

 

In San Francisco, bundling similar asbestos cases filed by the same plaintiff firm is not uncommon. What’s unusual, at least from the defense perspective, is grouping cases that involve different types of cancer.

 

HUGO PARKER’s Edward Hugo, a defense lawyer in the two suits consolidated last week by Judge Tomar Mason, argues there is no common theme between the claims. One case is a wrongful death suit based on a diagnosis of mesothelioma. The other is a personal injury suit based on a kidney cancer diagnosis — the court gave that severely ill plaintiff preferential status that had put his case on a fast track with an Oct. 18 trial deadline.

 

Most experts agree that asbestos is the sole cause of mesothelioma, while kidney and other cancers can be caused by all sorts of different things.

Tried in tandem, Hugo said the prejudice to his client, Foster Wheeler, would be “extreme.”

 

On Monday, Hugo persuaded First District Justice J. Anthony Kline to stay Mason’s consolidation order while the appeal court decides whether to vacate it.

The personal injury suit brought by plaintiff Jersey Gray was assigned to Mason’s courtroom after the wrongful death suit had already begun jury selection.

Gilbert Purcell, plaintiffs’ counsel in both cases, says that when that happened, his first request was for the second case to be reassigned to another judge. Purcell, of Novato’s Brayton Purcell, said Mason denied that request, but accepted his second request to combine the two cases for trial.

 

In other states, Purcell said, judges have consolidated “thousands of cases that mix disease and firm and whether [plaintiffs] are alive or dead,” and those decisions have all survived constitutional challenges.

 

He said jurors can distinguish between evidence presented in separate cases. “We’ve got a lot of smart jurors on this panel and in San Francisco,” Purcell said.

Mason has postponed opening statements until Nov. 13, and Purcell has until Monday to file an opposition to Hugo’s writ petition in the First District.

 

Other Objections

 

Hugo isn’t the only defense attorney who has raised objections since the consolidation of the two suits.

At a hearing Tuesday, Knox Ricksen’s Patrick Byrne, a defense attorney for Allis-Chalmers Corporation Product Liability Trust, asked for a mistrial because Purcell mentioned mesothelioma during jury selection. Byrne’s client is only in the kidney cancer case. Mason didn’t rule at the time, but said, “I’ve never heard of a mistrial granted on the grounds you are suggesting.”

 

Hassard Bonnington’s Robert Nelder, a defense lawyer for John Crane Inc. in the kidney cancer case, asked the judge to start with evidence of the cause of that plaintiff’s disease. He said evidence about mesothelioma would be “irrelevant” in the case he is defending.

 

But Purcell told Mason he would be “vehemently opposed” to arguing medical evidence first as Nelder suggested. To prove that Nelder’s client is liable for negligence, Purcell said he will argue at trial that asbestos products that were “sold and marketed without warning posed a panoply of disease risks,” including mesothelioma and other forms of cancer.

 

“It’s a misnomer to believe the evidence can be sanitized down to the particular disease the plaintiff may have,” he said.

 

In most California courts, the issue of grouping asbestos cases does not come up because they are each handled individually.

 

In Alameda County, for example, asbestos cases have not been bundled for trial for several years, according to Judge Robert Freedman, who took over the asbestos assignment early last year.

But San Francisco has a larger asbestos docket than most courts around the state. As of Oct. 22, there were 468 asbestos cases set for a jury trial over the next six months, according to Presiding Judge David Ballati.

Unlike most California courts, San Francisco’s will group together as many as 30 asbestos suits early on in proceedings, if the people who claim exposure to asbestos suffer from the same type of disease. Typically, Ballati said, many settle before trial; those that remain are tried together.

Ballati said the court has been grouping asbestos cases for more than a decade.

But some defense attorneys have long opposed the practice as unfair.

Schiff Hardin’s Eliot Jubelirer, who is not involved in the cases before Mason, said bundling asbestos cases is “tremendously disadvantageous” to the defense.

Even if several plaintiffs share similar medical diagnoses, Jubelirer said, they often have different work histories and asbestos exposures that occurred decades apart.

“How do you sort all that out in front of a jury? It’s very difficult,” he said.

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