Foster Wheeler LLC v. Superior Court OF San Francisco County (2007)

Our plain-English summary of Foster Wheeler LLC v. Superior Court OF San Francisco County (California Court of Appeal, November 2, 2007).

Foster Wheeler LLC was a defendant in two San Francisco asbestos cases that the trial court consolidated for trial after jury selection had begun in one of them. The Oxford case involved wrongful death claims over mesothelioma. The Gray case involved Jersey Gray, who had kidney cancer and was not expected to live long, and his wife's loss of consortium claim. Gray had worked at a power plant, gas station and municipal buildings as a mechanic and custodian, with exposure from 1970 to 2006. Mr. Oxford had worked as a boiler tender in shipyards, bases and naval vessels from 1963 to 1967. Foster Wheeler petitioned the Court of Appeal for a writ of mandate. The court compared the cases using factors from a federal decision, Malcolm v. National Gypsum. Only the shared plaintiffs' counsel favored consolidation. The worksites, jobs, exposure periods, diseases and living or deceased status all differed. The court also saw a causation question in the Gray case. It held that the trial court had abused its discretion and that jury instructions would not cure the prejudice. It ordered the consolidation order vacated.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: California Court of Appeal, 1st Appellate District, 2nd Division
• Decided: November 2, 2007
• Stage: Appeal from other
• State: California

Outcome. The Court of Appeal granted Foster Wheeler's petition and directed the trial court to vacate its order consolidating the Gray and Oxford asbestos cases for trial, finding an abuse of discretion.

What the court held. A trial court's discretion to consolidate cases under Code of Civil Procedure section 1048(a) is limited. Courts may use the Malcolm v. National Gypsum factors (worksite, occupation, time of exposure, disease, living or deceased, discovery status, counsel, cancer type), and consolidation was an abuse of discretion where most factors weighed against it.

Issues decided: Trial Procedure and Discovery.

The people and their exposure

• Mr. Oxford: mesothelioma; died

• Jersey Gray: kidney cancer

The defendants

• Foster Wheeler LLC

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Malcolm v. National Gypsum Co. (U.S. Court of Appeals, Second Circuit, 1993). The Second Circuit reversed the $226,038 judgment that Roberta Kranz, executrix of Lee Lewis's estate, won against Keene Corporation, and remanded for a new trial because consolidating 48 asbestos cases for trial was improper and prejudiced Keene.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

FOSTER WHEELER LLC, Petitioner,

v.

THE SUPERIOR COURT OF SAN FRANCISCO COUNTY, Respondent;

JERSEY GRAY et al., Real Parties in Interest.

A119429

November 2, 2007

Court of Appeals of California, First Appellate District, Division Two

BY THE COURT:[1]

Petitioner Foster Wheeler LLC is the defendant in two separate asbestos cases that were consolidated for trial after voir dire had already begun in one of the cases. Two days after the court ordered the cases consolidated, petitioner filed a petition for writ of mandate seeking immediate relief from the trial court's order of October 16, 2007, consolidating the cases entitled Jersey Gray and Shirley Gray v. Asbestos Defendants (B-P), San Francisco Superior Court Case No. CGC-07-274042 (hereafter Gray case) and Judy Oxford, etal. v. Asbestos Defendants (B-P), San Francisco Superior Court Case No. CGC-05-440328 (hereafter Oxford case), for trial. Pending determination of the petition, we issued a temporary stay of the October 16 order consolidating the cases for trial and requested real parties in interest to file points and authorities in opposition to the petition. Plaintiff real parties in interest have filed a brief in opposition to the petition, and two defendant real parties in interest have filed briefs in support of the petition.

On October 9, 2007, the Oxford case was sent to Judge Tomar Mason in Department 608 for trial. The jurors had filled out questionnaires, been examined for hardship, and were to begin voir dire on October 16, 2007. Before the beginning of voir dire, the Gray case was also sent to Judge Mason for trial on October 16, 2007. The parties appeared before Judge Mason to discuss scheduling matters regarding both cases. At that time the Oxford case was a group of three wrongful death actions involving decedents who died from mesothelioma.[2] The Gray case is a personal injury action involving a plaintiff who is suffering from renal (kidney) cancer and his wife who is seeking damages for loss of consortium. The Gray case was granted trial preference on May 22, 2007, because of substantial medical doubt that Mr. Gray would survive beyond six months. Brayton Purcell, counsel for plaintiffs in both cases, asked the court to either send the Gray case back to the presiding judge for reassignment because of serious concerns that Mr. Gray would die soon, or to allow it to be tried first with the jury panel then being called, or failing those two options, to consolidate the Oxford and Gray cases for purposes of trial.

Judge Mason said she was "not in a position" to request the master calendar court to reassign the Gray case and stated that as between the available alternatives, advancing the Gray case or consolidating the cases, she was inclined to consolidate the two cases. Judge Mason does not appear to have seriously considered the option of advancing the Gray case. Indeed, she gave no reason for rejecting that option. Defense counsel in both cases objected to consolidating them, noting that they involve different diseases, work situations, and causes of action. Defense counsel asserted that there are serious causation issues in the Gray case that are not present in the Oxford case. Defense counsel urged advancing the Gray case and trying it before the Oxford case. The court, however, reaffirmed its intention to consolidate the cases, finding that under Code of Civil Procedure section 1048, the actions involve a common question of law or fact and that a joint trial in these would be just and would tend to avoid unnecessary costs or delays. The court concluded that limiting instructions and instructions in general to the jury would allay the defense fears of prejudice.

Code of Civil Procedure section 1048, subdivision (a) provides: "When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay." (Hereafter referred to as section 1048(a).) The decision whether to consolidate cases pursuant to section 1048(a) lies within the trial court's discretion. (Todd-Stenberg v. Dalkon Shield Claimants Trust (1996) 48 Cal.App.4th 976, 978-979.) Such discretion is not unlimited; it is subject to the legal principles governing the subject of its action and to reversal where no reasonable basis for the action is shown. (Westside Community for Independent Living, Inc. v. Obledo (1983) 33 Cal.3d 348, 355.)

FOSTER WHEELER LLC v. SUPERIOR COURT OF SAN FRANCISCO COUNTY, Cal: Court of Appeal, 1st Appellate Dist., 2nd Div…

Section 1048(a) is virtually identical to Federal Rule of Procedure 42(a), which was considered in Malcolm v. National Gypsum Co. (2d Cir. 1993) 995 F.2d 346, where the Second Circuit articulated the criteria commonly used by federal courts for evaluating whether the trial court had abused its discretion in consolidating asbestos cases: (1) common worksite, (2) similar occupation, (3) similar time of exposure, (4) type of disease, (5) whether injured workers are living or deceased, (6) status of discovery in each case, (7) whether all plaintiffs are represented by the same counsel, and (8) type of cancer alleged. (Id. at pp. 350-351.) Given the virtual identity of our statute and the federal rule, and the familiarity of courts and counsel in California with these criteria, we think it appropriate to employ them. (See Hypertouch, Inc. v. Superior Court (2005) 128 Cal.App.4th 1527, 1544.)

The only factor listed in Malcolm clearly supporting consolidation in this case is that the same counsel represents all plaintiffs.[3] Virtually all other factors militate against consolidation. The worksites were different. Mr. Gray worked at a power plant, gas station and municipal buildings. Mr. Oxford worked in shipyards and bases and naval vessels. The occupations were different. Mr. Gray was a mechanic and custodian, whereas Mr. Oxford was a boiler tender. The times of exposure differed. Mr. Gray's exposure was between 1970-2006, and Mr. Oxford's was between 1963-1967. The types of disease are different. Mr. Gray has renal cancer, and Mr. Oxford died of mesothelioma. One victim is living and the other is dead. The types of cancer are also different. Mesothelioma and renal cancer have different etiology and pathology, and there appears to be a substantial question regarding causation in the Gray case.

Given the predominance of dissimilar issues in this case and the absence of any meaningful consideration to the option of trying the Gray case first, we conclude that the trial court abused its discretion in ordering the cases consolidated for trial. We are not convinced that instructions to the jurors will be sufficient to dispel the potential prejudice to the defendants from having one jury try these two cases with issues involving different diseases, different exposure sites, different time periods, and damage claims. An additional aspect of prejudice to the defendants is the time and expense incurred from having to sit through lengthy portions of a trial in which they have no involvement. At least two of the defendants are involved in only one of the trials.

We have reached our decision after notice to all parties that we might act by issuing a peremptory writ in the first instance. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177-189.) The entitlement to relief is obvious and there is a compelling need for immediate action. (See Alexander v. Superior Court (1993) 5 Cal.4th 1218, Ng. v. Superior Court (1992) 4 Cal.4th 29.) Accordingly, let a peremptory writ of mandate issue commanding respondent court to vacate its order consolidating its order of October 16, 2007, consolidating for purposes of trial Judy Oxford, etal. v. Asbestos Defendants (B-P), San Francisco Superior Court Case No. CGC-05-440328, with Jersey Gray, et. al. v. Asbestos Defendants (B-P), San Francisco Superior Court Case No. CGC-07-274042. The temporary stay of the order previously imposed is hereby dissolved. Petitioner is awarded costs. (Cal. Rules of Court, rule 8.490(m).) Our decision is final as to this court immediately. (See Cal. Rules of Court, rule 8.264(b)(3).)

[1] Before Kline, P.J., Lambden, J and Richman, J.

[2] The opposition brief filed by plaintiff real parties in interest states that the Oxford group of cases has since dropped to only the Oxford cause of action.

[3] There appeared to be some dispute about the status of discovery.

FOSTER WHEELER LLC v. SUPERIOR COURT OF SAN FRANCISCO COUNTY, Cal: Court of Appeal, 1st Appellate Dist., 2nd Div…

Sources

• The opinion on Google Scholar
• California asbestos laws
• California asbestos exposure sites