October 1, 2019
Senate Bill 645 (“SB 645”) was introduced by California’s Senator Monning (D) on February 22, 2019 and was signed into law by Governor Gavin Newsom on August 30, 2019. SB 645 adds a new section to the California Code of Civil Procedure relating to the timing of depositions in cases involving mesothelioma and silicosis.
The law allows a party to obtain discovery in the form of oral depositions of any person or party to an action. In complex cases where a licensed physician attests to the condition creating substantial doubt of survival beyond six months, the deposition is limited to two days, not to exceed seven hours each day. Cal. Code Civ. Proc. §2025.010. California Legislature’s analysis of SB 645 determined that, historically, the provision has been broadly interpreted to give trial judges discretion in allowing time limits for these depositions. However, even with these time limits, defendants often seek leave of court for additional time given the numerous defendants named by plaintiffs in mesothelioma and silicosis cases.
This new measure inserts Section 2025.295 to the California Code of Civil Procedure, to limit the deposition of plaintiffs in mesothelioma and silicosis cases to a total of 7 hours where a physician attestation is provided that there is substantial medical doubt of survival beyond 6 months. The measure limits defendants’ examination in these matters to seven hours. However, it allows the court to grant an additional three hours if there are more than ten defendants, not to exceed ten hours total. It allows an additional seven hours of time in cases where more than twenty defendants appear, not to exceed fourteen hours total. The measure also allows the courts to grant additional time, in excess of the requirements, in the interest of fairness, by allowing courts to consider the total number of defendants and whether additional time appeared to threaten the health of the deponent.
It is well established that liberal discovery is a right granted to all parties. However, this bill seems to have devastating consequences on the ability of defendants to cross-examine plaintiffs in these matters. Plaintiffs will name anywhere from thirty to over one-hundred defendants in any given case. The time limits have always been restrictive to defendants, and parties have often sought leave of court for additional time for examination. The additional time limits imposed, given the number of defendants generally named, impacts the due process rights of defendants in these cases.As depositions are currently noticed by the plaintiffs, there is inequity in allowing plaintiffs counsel to elicit testimony for hours at a time while limiting the time allowed for numerous defendants identified during these depositions in parallel. While defendants’ are hindered from eliciting essential testimony to defend their case, they can attempt to minimize the harms imposed by these stringent requirements by streamlining examinations and increasing cooperation amongst defendants to elicit the required testimony.
For more information on this topic, or to discuss the new law, please contact MKC&I’s Farah A. Ballout.