SAN FRANCISCO (Legal Newsline) – A California appeals court has held that an expedited trial was necessary in an asbestos personal injury case, vacating the lower court’s order rejecting an earlier trial date.
Justice Stuart R. Pollak filed the opinion on Nov. 26 in California’s First District Court of Appeal, granting the claimant’s petition for an expedited trial date. Justices William R. McGuiness and Martin J. Jenkins concurred.
Plaintiffs Gerald and Judith Boyd filed their petition seeking an extraordinary writ commanding the superior court to vacate an Oct. 31 order denying their motion for an expedited trial date under the Code of Civil Procedure section 36. Specifically, they sought a trial date within 120 days of Oct. 31.
Section 36 of the Code of Civil Procedure requires trial preference for claimants more than 70 years of age whose health “is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.”
Pollak held that this is a mandatory preference if the elements of the statute are met.
According to the opinion, three of the 15 defendants named in the asbestos suit have opposed the petition.
After reviewing the request, the oppositions and supporting materials, the appeals court concluded that an expedited trial was proper and granted the writ.
The trial court vacated its July trial date and scheduled a trial before March.
Claimant Gerald Boyd, 71, developed mesothelioma as a result of asbestos exposure. His treating physician, Dr. Thierry M. Jahan, believes Boyd has been suffering from mesothelioma for more than two years.
Relying on Jahan’s declarations and medical opinions, Boyd moved for trial preference on Oct. 1.
Jahan stated that it is his professional medical opinion that Boyd’s mesothelioma raises a “substantial medical doubt” that he will survive beyond the end of March 2015.
“The declaration of Jahan is uncontradicted and establishes that there is a substantial medical doubt that Boyd will survive to the July 13, 2015 trial date that the court ordered,” Pollak stated.
The defendants opposing the request relied on the fact that Boyd is still feeling well, with stable weight and good energy.
However, the appeals court held that “there is no evidence that because Boyd is not yet debilitated, his life expectancy is lengthened.”
“The facts remain that he has a terminal diagnosis of mesothelioma, he is in stage III of that disease, in which rapid deterioration without progression to stage IV may occur, and, in the uncontradicted opinion of his medical expert, his survival beyond six months is subject to substantial medical doubt,” Pollak continued.
As a result, the appeals court concluded that entitlement to relief is “obvious” and there is an “unusual urgency” in this case requiring an expedited trial.
“Therefore, let a peremptory writ of mandate issue, directing the respondent superior court to vacate its Oct. 31, 2014 order, and to grant a new order setting trial in this matter within 120 days of Oct. 31, 2014,” the court held.
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