A recent decision suggests that opposing motions for California trial preference by an allegedly dying plaintiff over 70 may have just gotten more difficult.

Frequently, defendants oppose such motions by attacking the specificity or foundation of the supporting doctor’s declaration. In Boyd v. 3M, Alameda Superior Court asbestos coordination Judge Jo-Lynne Q. Lee denied a motion for preference because she found the plaintiff’s doctor’s declaration conclusory, without sufficient detail about plaintiff’s current condition, symptoms, and impairments. In an unpublished decision, the Court of Appeal reversed. “[I]n the absence of contrary evidence, the failure to provide further specificity does not justify denial of the motion.”

Although the decision is [at present] unpublished and therefore may not be cited in California courts, it is significant because the decision will certainly be known to, and will likely affect future rulings, from the asbestos courts in Alameda, San Francisco and perhaps even Los Angeles counties, which three account for the bulk of California asbestos cases.  Accordingly, defense counsel opposing such motions should be forewarned that objections to medical declarations filed in support of motions for preference may not be sufficient, and to defeat such motions may require conflicting medical evidence.

Boyd involved a 71-year-old plaintiff.  While the doctor’s progress notes had indicated that plaintiff was actually doing well,

The fact remains that he has a terminal diagnosis of mesothelioma, he is in Stage III of that disease, in which rapid deterioration without progress to Stage IV may occur and, in the uncontradicted opinion of his medical experts, his survival beyond six months is subject substantial medical doubt.  Absent of the evidence to the contrary, Boyd is entitled to preference under [Code of Civil Procedure] section 36, subdivision (a).

The Court of Appeal found that the declaration of his treating doctor was “uncontradicted and establishes that there is a substantial medical doubt that [plaintiff] will survive to the [early] July 13, 2015 [non-preferential] trial date that the court ordered.”

One ray of hope for defendants in this decision (other than its unpublished status) is that it specifically refers to trial preference under subdivision (a), which is mandatory but applies only when a dying party is over 70. The decision agreed that a conclusory doctor declaration might be sufficient to deny trial preference under subdivision (d), which allows for discretionary trial preference where a party is under 70, and requires “clear and convincing medical documentation.”

Another ray of hope is that the decision does contemplate opposing pretrial preference motions with contrary evidence. The decision does not specify the form any such “contrary evidence” should take.

As a postscript, Judge Lee immediately vacated the trial date, and set a new one for the end of February 2015, within the required 120 days from the preference motion hearing date. Because of statutory time restrictions and plaintiffs’ counsel’s refusal to shorten notice, this essentially eliminated the ability of defendants to bring any motions for summary judgment.