Claiming injury from exposure to asbestos, the plaintiff sued in Texas and answered questions during an abbreviated deposition (limited by Texas law). Defendants may have cases against them dismissed in Texas if no evidence connects their products to the alleged exposure, so they generally do not engage in extensive questioning that would increase the likelihood that their product would be included. However, California has a different procedure, and a company must engage in extensive questioning of the plaintiff, without time limits, to prove that their product was not involved.
When the Texas claim was dismissed, the plaintiff filed a similar suit in California, but died before the defendant could cross-examine him. As a result, the company will have to endure higher risk and substantial legal fees.
On June 29, the NAM and other groups filed an amicus letter in the California Supreme Court asking it to review the California procedures to make sure that plaintiffs’ lawyers do not unfairly game the system in this way. The case presented an opportunity to reevaluate the costs and benefits of California’s current deposition practices and summary judgment procedures, and to take steps to discourage forum shoppers that have made California one of the most popular jurisdictions for asbestos claims. Unfortunately, on July 8, the court declined to hear the appeal. Although the trial court had found that the plaintiff’s law firm was engaging in a “type of judicially sanctioned extortion,” and said that the firm had played the same “grisly game of asbestos litigation” in at least nine cases, it allowed the case to proceed.