SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA

DANIEL CHRISTOPHER DOYLE and KRISTIE LYNN DOYLE,

Plaintiffs,

vs.

IMERYS TALC AMERICA, INC., et al.,

Defendants.
Case No. 18CV333609

TENTATIVE RULING RE: MOTION FOR TRIAL PREFERENCE

The above-entitled action comes on for hearing before the Honorable Thomas E. Kuhnle on November 9, 2018, at 9:00 a.m. in Department 5. The Court now issues its tentative ruling as follows:

I. INTRODUCTION

Plaintiffs Daniel Christopher Doyle and Kristie Lynn Doyle (together, “Plaintiffs”) filed their Complaint for Personal Injuries and Loss of Consortium (“Complaint”) on August 27, 2018. The Complaint alleges that Defendants Imerys Talc America, Inc. (and related entities) and Johnson & Johnson (and related entities) (collectively, “Defendants”) put asbestos-containing products, including Talc, into commerce. (Complaint, at p. 3.) Plaintiffs allege that Daniel Christopher Doyle (“Mr. Doyle”) was exposed to asbestos in Defendants’ products and as a consequence now suffers from mesothelioma, an incurable and inevitably fatal cancer. (Id. at pp. 3-4.) Based on these and related allegations Plaintiffs set forth three causes of action: (1) Strict Products Liability; (2) Negligence; and (3) Fraud.

Plaintiffs now move for trial preference.

II. APPLICABLE LAW

Code of Civil Procedure Section 36, subdivision (d), states: “In its discretion, the court may also grant a motion for preference that is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference.” Section 36, subdivision (e), states: “Notwithstanding any other provision of law, the court may in its discretion grant a motion for preference that is supported by a showing that satisfies the court that the interests of justice will be served by granting this preference.”

Code of Civil Procedure Section 36, subdivision (f), states: “Upon the granting of such a motion for preference, the court shall set the matter for trial not more than 120 days from that date and there shall be no continuance beyond 120 days from the granting of the motion for preference except for physical disability of a party or a party’s attorney, or upon a showing of good cause stated in the record. Any continuance shall be for no more than 15 days and no more than one continuance for physical disability may be granted to any party.”

III. DISCUSSION

Plaintiffs contend they are entitled to preference under Section 36 of the Code of Civil Procedure because Mr. Doyle is suffering from mesothelioma and is unlikely to live for more than six months.
In support of their motion, Plaintiffs submitted two declarations. The first is from Dr. Claire F. Verschraegen, a member of Mr. Doyle’s treatment team at The Ohio State University College of Medicine. (Decl. of Claire F. Verschraegen, M.D. in Support of Plaintiffs’ Motion for Trial Reference at ¶¶ 2-4.) Her declaration states that Mr. Doyle has been diagnosed with biphasic malignant mesothelioma because he has mixed epithelial and sarcomatoid malignant cells. (Id. ¶ 5.) This condition has no known cure and is invariably fatal. (Id. ¶ 10.) Mr. Doyle is not a candidate for surgery and while he is being treated with chemotherapy, it is only palliative, not curative. (Id. ¶ 11.) Dr. Verschraegen concludes “that there is substantial medical doubt of Mr. Doyle’s survival beyond six months from the date of this declaration.” (Id. ¶ 13.) The declaration was signed on October 10, 2018.

The second declaration is from Mr. Doyle’s wife, Plaintiff Kristie Lynn Doyle. It states that Mr. Doyle was diagnosed with mesothelioma in June 2018 and that his condition has declined steeply since them. (Declaration of Plaintiff Kristie Lynn Doyle, ¶¶ 3-7.) She states that as of October 10, 2018, Mr. Doyle had been in the hospital for four days with mouth sores, throat lesions and poor kidney test results, and was receiving nutrients through a peripherally inserted central catheter. (Id. ¶¶ 6-7.)

Defendants filed conditional opposition briefs to Plaintiffs’ motion for preference. Neither contests the information provided in the declarations submitted by Dr. Verschraegen and Ms. Doyle. Defendants argue, however, that granting the motion and setting trial within 120 days from the hearing will be contrary to the interests of justice and will cause substantial prejudice. Defendants propose the motion be denied but an early trial be set. They also propose a number of modifications to pre-trial deadlines for discovery and motion practice.

The Court finds that Plaintiffs have submitted clear and convincing medical documentation showing that Mr. Doyle suffers from an aggressive form of mesothelioma that raises substantial medical doubt of survival beyond six months. The Court agrees with Defendants, however, that safeguards may be needed to ensure the interests of justice are served. The Court is inclined to begin the trial on either February 25, 2019 or March 4, 2019. The Court understands the parties are meeting and conferring regarding modifications to pre-trial deadlines. The Court requests that ALL PARTIES APPEAR at the hearing to discuss these issues further.