I'm back from an at least partially-deserved vacation, and thought that this opinion was worth at least brief mention. The Court of Appeal holds that the statute -- Section 2025.295 of the Code of Civil Procedure -- means what it says, and it's hard to argue with that conclusion. CCP 2025.295 caps the amount of time the defendant(s) may depose a plaintiff if the plaintiff is suffering from (and suing for) mesothelioma and a licensed physician declares there's "substantial medical doubt of the survival of the [plaintiff] beyond six months.” The cap is "seven hours of total testimony,” a trial court can grant up to an additional seven hours -- “for no more than 14 hours of total deposition" -- if more than 20 defendants appear at the deposition, the court determines that the additional time is warranted in the interest of fairness, and the additional time does not appear to endanger the plaintiff’s health. The Legislature enacted that statute in 2019 in direct response to a prior Court of Appeal ruling that held that a deposition beyond 14 hours could be compelled in such circumstances, finding that this rule was being used to allow “marathon depositions” that were inflicting “undue emotional and physical harm on victims during their final days of life — even hastening death.”
Okay. So that's the rule. And the text of the rule is pretty darn clear.
Ordinarily, that'd also seem like just a fine rule. Fourteen hours of deposition is a fairly long time. Not infinite, to be sure. You'd certainly like more if you were being sued for millions of dollars. But a pretty decent amount of time regardless. Especially for someone terminally ill with mesothelioma.
Now, here, there are not just 30 defendants. There are over a hundred of them. So you can see why the defendants might take some umbrage at being hard capped at 14 hours. Each defendant understandably wants to examine the plaintiff at some length about his or her alleged exposure to the product of the particular defendant at issue. Because, among other things, that's usually the most vulnerable part of the plaintiff's case. Sure, s/he has mesothelioma, and it's almost certainly from exposure to asbestos. But did it come from exposure to my asbestos product? That's the core issue.
The Court of Appeal says that each defendant was able to depose the plaintiff within the 14-hour period about the individual products at issue "briefly." I'm sure that's true. But having done the math, even if the 100-plus defendants didn't depose the plaintiff about anything else (e.g., the common claims and defenses), each defendant would only have 8 minutes -- max -- to depose the plaintiff about exposure to defendant's particular product.
That ain't much.
It'd be different, of course, if the defendants were able to fully question the plaintiff at trial. But we all know that's not likely to be the case, and that plaintiff probably won't be around at that point. So the only testimony is going to come from the deposition.
So those eight minutes are pretty darn precious.
Still, the Court of Appeal says that the statute says what it says, and that the Legislature made the call. Defendant argues that it's got a due process right to examine the plaintiff, but the Court of Appeal says there's not much of a constitutional right to discovery in the first place -- we could (if we wanted) have the parties go directly to trial -- so there's no constitutional bar to doing what the Legislature has done.
Okay. You can see why the case comes out that way.
To me, though, one of the disturbing parts of this fact pattern is that the plaintiff's lawyer got to depose the plaintiff himself -- at that same deposition -- for over eight hours. You've got a right, of course, to depose your own client, and if you think your client might well not be around for trial, that's probably a pretty good idea. You'll want to introduce that testimony at trial.
There just seems something fundamentally wrong, however, about having a time-unlimited ability for a plaintiff to depose himself and yet imposing a hard 14-hour cap on the defendants. I'm not sure that it's a due process problem (though maybe it is). It just seems unfair and/or unfounded. I get that we don't want dying victims harassed in a deposition forever during their final days. But if the plaintiff can -- and wants -- to use his own deposition to advance his own claims for a lengthy period of time, it seems only fair that defendants obtain at least a "fair" amount of time in response.
And I'm not sure that 8 minutes a defendant counts as fair.
The statute says what is says, and to a substantial degree, the Legislature gets to make the call. But I definitely wouldn't want to be a defendant in this procedural posture. Particularly with millions of dollars on the line.
