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ATTORNEYS
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In re Los Angles Asbestos Litigation – General Orders |
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THIRD AMENDED GENERAL ORDER NO. 29 |
IT IS HEREBY ORDERED as follows:
Asbestos cases are designated as complex cases within the meaning of Rules 3.400 and 3.750 of the California Rules of Court.
I. Each plaintiff shall serve on all parties and file a completed Case Report in the form attached hereto within eight (8) months of the date of filing of the Complaint, unless plaintiff has filed a motion for preference in trial setting under Code of Civil Procedure, section 36, in which case plaintiff shall serve and file the Case Report by a date to be determined by stipulation of all the parties or by the trial court.
II. With the Case Report, plaintiff shall serve a copy of all discoverable and non-privileged medical reports, reflecting all x-ray results and evaluations and PFT numbers, in the possession or under the control of plaintiff or plaintiff’s counsel, which have not been previously provided to the defendants. To the extent said medical records exceed 50 pages in length, plaintiff may comply with this requirement by giving written notice to the defendants that such records are available for immediate copying by defendants at defendants’ expense.
III. To the extent that the Case Report identifies or lists a document which is not
attached, within three (3) business days of receipt of a written request for such document, plaintiff shall provide, at the expense of the requesting party, a copy of each requested document.
IV. With respect to product identification based causes of action, “product
identification witness” shall mean: any percipient witness known to plaintiff who has knowledge of: a) the identity by name (brand name, colloquial name, manufacturer, distributor, seller, supplier, and/or owner) and/or asbestos content of any asbestos containing product(s) to which plaintiff or plaintiff’s decedent is claimed to have been exposed; and/or b) the identity of any premises at which plaintiff or plaintiff’s decedent is claimed to have been exposed to asbestos containing products; and/or c) identify of any contractor defendant whose work plaintiff claims exposed plaintiff or plaintiff’s decedent to asbestos containing products. A plaintiff may additionally list an expert witness as a “product identification witness.” A “product identification document” shall mean any document(s) known to plaintiff that support(s) plaintiff’s allegations of exposure to any asbestos-containing products.
V. In the face of a motion to dismiss based upon the Case Report, or a motion for
summary judgment under Code of Civil Procedure section 437c, plaintiff may supplement the product identification witness and product identification document lists contained in the original Case Report without motion by filing and serving an amendment to the Case Report no later than ten (10) days prior to the hearing on any such motion provided that:
(1) Good cause exists for plaintiff’s failure to include any such additional witness or
document in the original Case Report; and,
(2) plaintiff provides the last known address of each additional witness or, if
represented by counsel, the name and address of the witness’ attorney (the plaintiff need not list such address if it is confidential, but in such event the plaintiff will be deemed to have represented to both the Court and counsel that plaintiff will produce such witness for deposition at a reasonably designated place and time); and,
(3) plaintiff provides defendants with a copy of each additional document listed in
said Case Report amendment.
VI. Even in the absence of a pending motion to dismiss or a motion for summary
judgment, plaintiff may supplement and/or amend the Case Report product identification witness and/or document lists at any time without motion, so long as: (1) any witness named in an amended Case Report is offered for a deposition to take place prior to the date of the Final Status Conference; (2) A product identification amendment based upon a document(s) is made prior to the Final Status Conference.
VII. After meeting and conferring with counsel for plaintiff regarding the factual basis
of a Case Report amendment, should a defendant believe that good cause did not exist for plaintiff’s failure to include a witness or document in the original Case Report, then, upon such defendant’s application, the Court may issue an order to show cause (hereafter “OSC”) requiring plaintiff to show cause (e.g., that the witness’ identity or document’s existence was only recently discovered) why such document or such witness should not be stricken from the Case Report. At such hearing, the Court may take into account the extent to which defendant has relied upon the submitted lists of witnesses or documents, whether defendant would be prejudiced if such unlisted witness was called at trial or such unlisted document was offered at trial, and whether any claimed prejudice can be reduced or avoided by permitting the defendant an opportunity for appropriate discovery. If after hearing the Court finds that good cause did exist, and that defendant’s objection based on absence of good cause did not have a substantial factual basis or justification, then the Court may award the plaintiff reasonable attorney’s fees and costs incurred in preparing for, and appearing at, such OSC.
VIII. (1) A motion to dismiss, without prejudice, all or some causes of action shall be
deemed filed on behalf of any defendant who is not identified in the Case Report, if defendant serves a written notice of motion to seek such a dismissal. Said motion shall be served no sooner than forty-five (45) days and no later than seventy-five (75) days after service of said Case Report. The motion shall contain a notice of hearing in accordance and with Code of Civil Procedure section 1005. The notice of motion to dismiss shall identify the cause(s) of action sought to be dismissed, and shall contain a brief statement of why the identified cause(s) of action should be dismissed. A copy of the Case Report shall be attached to the notice of motion. The notice of motion need not be accompanied by a further memorandum of points and authorities or declaration.
(2) Plaintiff’s opposition and any defendant reply to the motion to dismiss shall be filed
and served in accordance with the provisions of Code of Civil Procedure Section 1005. If plaintiff files and serves opposition, any defendant deemed to have made such a motion may withdraw its motion by written notice. Absent a withdrawal, the Court shall conduct a hearing on defendant’s motion. With respect to each cause of action as to any defendant for whom plaintiff does not list witness or document identification in the Case Report or proper amendment to the Case Report, the Court shall order dismissal without prejudice.
IX. Product identification witnesses and documents not listed in said Case Report, or
in a proper amendment to the Case Report, shall be excluded at trial, unless otherwise ordered by the Court for good cause shown.
X. Failure to timely file and serve said Case Report or failure to provide adequate
information in said Case Report may cause the Court to impose other appropriate sanctions pursuant to the provision of Code of Civil Procedure section 2023.010 et seq.
DATED:
Hon. Elihu M. Berle
Supervising Judge
of the Civil Departments
CASE REPORT
Injured/Deceased:____________________ LASC Case No._________________
Social Security No.___________________ Trial Date:_____________________
Wrongful Death Clmt.:________________ FSC Date: _____________________
Age/DOC/DOD:_____________________ Plaintiff Counsel: _______________
Dependents:______________________________________________________________
PLAINTIFF MEDICAL INFORMATION:
Diagnosis:_______________________________________________________________
Diagnosing Doctor:________________________ Date Diagnosed :________________
Smoking History (Pack years):_______________________________________________
Retirement Status/Reason: __________________________________________________
Wage Loss: $______________ Comp Lien: $_______________
EXPOSURE HISTORY (Attach additional sheets, if necessary)
DATES: LOCATION / JOB SITES: OCCUPATION:
_____________ __________________________ __________________
_____________ __________________________ __________________
_____________ __________________________ __________________
_____________ __________________________ __________________
_____________ __________________________ __________________
_____________ __________________________ __________________
_____________ __________________________ __________________
_____________ __________________________ __________________
_____________ __________________________ __________________
_____________ __________________________ __________________
PRODUCT IDENTIFICATION BASED CAUSES OF ACTION:
Identify the witnesses, known to plaintiff, who have knowledge of plaintiff’s exposure to any asbestos-containing products (“product identification witness”), and the document(s) known to plaintiff that support(s) plaintiff’s allegations of exposure to any asbestos-containing products.
A. For each witness state:
1. Full name;
2. Last known address or, if represented by counsel, the name and address of the witness’ attorney (plaintiff need not list such address if it is confidential, but in such event plaintiff will be deemed to have represented to both the Court and counsel that plaintiff will produce the witness for deposition at a reasonably designated place and time);
3. Each defendant’s product or asbestos-containing product of which the witness has knowledge;
4. Each place of exposure to a defendant’s product or products of which witness has knowledge;
5. The time period to which each identification applies.
For each such witness that has been previously deposed, list the court caption of each case in which the witness was deposed, the date and place of each deposition the witness has given, and the name and address of the person who, if requested, will make available to defendants’ counsel a copy of the deposition transcript.
B. For each such document state:
1. The title or nature of the document;
2. The date of the document;
3. The author of the document;
4. The addressees of the document;
5. Each defendant to which the document applies; and
6. Each defendant the document mentions or identifies.
NON PRODUCT IDENTIFICATION CAUSES OF ACTION:
For each non-product identification based cause of action (including by way of example, but not limited to, conspiracy, fraud and market share), attach a list of the witnesses known to plaintiff who have knowledge relevant to each such cause of action and the document(s) known to plaintiff that support(s) plaintiff’s allegations in each cause of action.
A. For each witness state:
1. Full name;
2. Last known address or, if represented by counsel, the name and address of the witness’ attorney (plaintiff need not list such address if it is confidential, but in such event plaintiff will be deemed to have represented to both the Court and counsel that plaintiff will produce the witness for deposition at a reasonably designated place and time); and
3. Each defendant to which the witness’ knowledge applies;
For each witness that has been previously deposed, list the court caption of each case in which the witness was deposed, the date and place of each deposition the witness has given and the name and address of the person who, if requested, will make available to defendants’ counsel a copy of the deposition transcript.
B. For each document state:
1. The title or nature of the document;
2. The date of the document;
3. The author of the document;
4. The addressees of the document;
5. Each defendant to which the document applies; and
6. Each defendant the document mentions or identifies.
ANSWER TO INTERROGATORIES:
Has the information submitted by plaintiff’s in previously served answers to interrogatories concerning plaintiff’s or plaintiff’s decedent’s exposure to asbestos-containing products, the identification of such products, medical treatment, diagnosis of asbestos-related disease, or special damages, changed in any way? If so, on a separate sheet, identify and briefly describe each change.
MEDICAL REPORTS:
Attach a copy of all medical reports describing or referring to the plaintiff’s (or plaintiff’s decedent’s) medical conditions.
REMAINING DEFENDANTS:
Attach a list identifying all remaining defendants in this lawsuit.
BANKRUPTCY PROOFS OF CLAIM:
Attach a copy of each bankruptcy proof of claim relating to asbestos exposure which p