October 19, 2011
By:
On November 15, 2011, the San Francisco Superior Court will hold a hearingonPresiding Judge Katherine Feinstein's intention to issue an order ("Order") that will rescind most San Francisco County Asbestos General Orders ("General Orders") and cease the grouping of asbestos cases. According to Pang Ly, Asbestos Litigation Settlement Manager, Judge Feinstein's decision reflects the opinion of S.F. Superior judges that the General Orders are outdated and unnecessary.
In the late 1990s, S.F. Superior promulgated the General Orders to better manage the then-existing massive asbestos caseload. The General Orders address a variety of pre-trial issues common to every asbestos case, including mandating that both Plaintiffs and Defendants provide responses and annual updates to a standard set of interrogatories, setting forth discovery timelines (including timelines for expert discovery), and authorizing Berry & Berry to serve as Designated Defense Counsel.
Although this may appear to be a sweeping change, there are exceptions that will dilute the Order's impact. Berry & Berry will remain Designated Defense Counsel until December 31, 2013. In addition, General Orders covering expert witness discovery, depositions, and responding to standard interrogatories, with the exception of the annual update requirement, will also remain in effect until the end of 2013. General Orders mandating electronic filing and designating asbestos cases as complex will remain in effect indefinitely.
In addition to the foregoing exceptions, the Order vests the asbestos case management judge with the discretion to reinstate General Order(s) in specific cases (this is common practice in Alameda County, where the General Orders were rescinded earlier this year), and allows parties to stipulate to the application of General Order(s) in particular cases. We expect reinstatement and/or stipulations to occur in preference cases with respect to discovery and expert deadlines as well as filing summary judgment motions within 30 days of trial on shortened time.
Of significance is that under the Order, the Court will cease the practice of "grouping" asbestos cases by plaintiffs' firm, personal injury or wrongful death, and disease. Parties may still stipulate "that any two or more cases will be treated as a 'group' for discovery or any other purpose." Currently, groups of up to 12 cases, with 60 or more defendants are routinely assigned to trial departments. We expect the Plaintiff Bar to file stiff opposition to this portion of the proposed Order.
Judge Feinstein has invited the Asbestos Bar to comment on the Order, which she intends to sign prior to the end of the year. Initial comments must be served by October 21st, and responses must be served by October 28th. The court will hold a hearing on November 15, 2011 at 2:00 p.m. so that interested parties may make their positions known to the court. Although Judge Feinstein will be signing the Order, it is not clear whether Judge Feinstein or some other judge will conduct the hearing.
Dean Pollack is a trial lawyer whose practice focuses on product liability and asbestos litigation. He can be reached at 510.835.6705 or dpollack@burnhambrown.com. Bina Ghanaat's practice focuses on insurance coverage analysis and advice. She can be reached at 510.835.6730 or bghanaat@burnhambrown.com. Burnham Brown's San Francisco Bay Area location is in walking distance to Alameda County Superior Court and an 18 minute BART ride to San Francisco Superior Court.