Trial Judge - Civil Procedure - Past Paper, Exams of Civil procedure

Download Trial Judge - Civil Procedure - Past Paper and more Exams Civil procedure in PDF only on Docsity! CIVIL PROCEDURE – FALL 2002 1) Please finish the following opinion as if you are the trial judge in the case: James McGonnell (McGonnell) filed a complaint in 1999 for personal injuries resulting from asbestos exposure. His complaint was amended to specify further claims and damages after he died in 2001. The suit alleged that McGonnell had been exposed to asbestos-containing products at various locations over many years, which caused severe injuries including lung cancer. The exposure occurred as he performed his duties as a plumber and pipefitter. The complaint listed his last job as Assistant Chief Engineer at California Pacific Medical Center (California Pacific) in San Francisco, from 1978 to 2000. The complaint named numerous defendants, including Kaiser Gypsum and Kaiser Cement. McGonnell was deposed before his death. He testified that he worked in every single building at the California Pacific medical Complex. Generally, his duties consisted of maintenance and repair of the plumbing in the various buildings. During the course of his duties he would regularly cut through or cut out walls to perform work behind the walls, where he would encounter insulation and fireproofing materials. McGonnell testified in his deposition that he had never heard of a company called "Kaiser Gypsum." As far as he knew, he had never worked with Kaiser Gypsum products, or near others using Kaiser Gypsum products. He had heard of "Kaiser Cement Company" and seen bags of cement with that name on it, but he could not recall where he had seen the bags. Based on this information from McGonnell's deposition, Kaiser Gypsum and Kaiser Cement moved for summary judgment. They asserted there was no evidence McGonnell had had any contact with their products, and, therefore, no evidence their products caused his injuries. In response, plaintiffs offered invoices that showed products manufactured by Kaiser Gypsum might have been delivered to California Medical Center in the 1970's and possibly used in building additions or renovations. They also produced discovery responses from Kaiser Gypsum that showed its principal business was manufacturing and marketing gypsum plaster, gypsum lath, and gypsum wallboard. According to the discovery responses, none of these products contained asbestos. Kaiser Gypsum, however, also manufactured various compounds for installing and finishing wallboard that did contain asbestos. Kaiser Gypsum ceased to use asbestos in these products in the early to mid-1970's. Plaintiffs also offered discovery responses from Kaiser Cement that showed its principal business was the manufacture and sale of Portland cement. Portland cement does not contain asbestos. Kaiser Cement did make two products that contained asbestos--"plastic cement" and "masonry cement." Kaiser Cement ceased using asbestos in the manufacture of plastic cement in Northern California in 1973, and in Southern California in 1976. Plaintiffs offered evidence that plastic cement might have been used in construction at California Pacific in the late 1970's. Finally, plaintiffs presented declarations from an expert who opined that McGonnell had been exposed to asbestos while performing his duties at California Pacific, and that asbestos-containing products from Kaiser "were used in the construction" of California Pacific during the 1970's. Plaintiffs submitted their own McGonnell deposition excerpts, which showed McGonnell would cut into walls and disturb building materials. Unfortunately for plaintiffs, they had little evidence that McGonnell disturbed Kaiser products, and virtually no evidence he had disturbed Kaiser products containing asbestos. Deposition excerpts from a contractor and building materials supplier showed Kaiser Cement plastic (stucco) cement might have been delivered for use on a project at California Pacific in the late 1970's. The building materials supplier was unsure of when he delivered the plastic cement, but he finally decided it was "more towards the end of the '70s," although he conceded it was just a guess. Plaintiffs' other evidence (discovery responses) showed Kaiser Cement stopped manufacturing plastic cement containing asbestos in Northern California in 1973, and in Southern California in 1976. Further, as defendants point out, plastic cement is applied to exterior walls for a stucco finish, and there was no evidence McGonnell worked with or around stucco. With respect to Kaiser Gypsum products, plaintiffs had Kaiser Gypsum invoices showing the sale of wallboard and joint compound to a contractor in 1972. There are indications on the invoices that the materials were for a project at California Pacific. Plaintiffs' other evidence showed Kaiser Gypsum did not use asbestos in its wallboard, but that the joint compound could have contained asbestos. Although the joint compound was delivered to the contractor a few years before McGonnell began his employment at California Pacific, it is at least within the realm of possibility that McGonnell encountered a wall with Kaiser joint compound during his 24 years of employment at California Pacific. Plaintiffs ask this court to consider the declarations they submitted from their expert, a certified industrial hygienist. In the first declaration, the expert opines that McGonnell more likely than not was exposed to significant levels of airborne asbestos while working at California Pacific. The expert opined that it was more likely than not Kaiser Gypsum and Kaiser Cement asbestos-containing products were used at California Pacific in the 1970's and that McGonnell had been exposed to them. The expert based his opinion on a review of the materials submitted in 1 opposition to the motion for summary judgment, plus "job specifications reflecting the proposed use of asbestos- containing plastic cement, wallboard and topping compound specified for use in the new construction of the Pacific Presbyterian Medical Center in the early 1970s." The motion is _______________. 2) Assume that the plaintiffs also respond to the motion for summary judgment by filing their own motion to file an amended complaint. In this amended complaint, they propose to add more companies to the list of defendants. The plaintiffs assert that these companies may have provided the materials used in construction projects at California Pacific. Should the court permit the amended complaint to be filed? 2 invoices that the materials were for a project at California Pacific. Plaintiffs' other evidence showed Kaiser Gypsum did not use asbestos in its wallboard, but that the joint compound could have contained asbestos. Although the joint compound was delivered to the contractor a few years before McGonnell began his employment at California Pacific, it is at least within the realm of possibility that McGonnell encountered a wall with Kaiser joint compound during his 24 years of employment at California Pacific. Does this possibility create a triable issue of fact? We think not. It is not enough to produce just some evidence. The evidence must be of sufficient quality to allow the trier of fact to find the underlying fact in favor of the party opposing the motion for summary judgment. All that exists in this case is speculation that at some time McGonnell might have cut into a wall that might have contained Kaiser joint compound that might have contained asbestos. The evidence creates only "a dwindling stream of probabilities that narrow into conjecture." * * * It is proper to grant a summary judgment to avoid a trial that would be "rendered 'useless' by nonsuit or directed verdict or similar device." Plaintiffs ask us to consider the declarations they submitted from their expert, a certified industrial hygienist. In the first declaration, the expert opines that McGonnell more likely than not was exposed to significant levels of airborne asbestos while working at California Pacific. Although the expert refers to the invoices discussed above, nowhere in his declaration does the expert tie Kaiser Gypsum or Kaiser Cement to the airborne asbestos at California Pacific. Perhaps realizing that flaw, plaintiffs submitted a supplemental declaration from this expert on the day of the summary judgment hearing. In this brief four-paragraph document, the expert opined that it was more likely than not Kaiser Gypsum and Kaiser Cement asbestos-containing products were used at California Pacific in the 1970's and that McGonnell had been exposed to them. He provided little explanation or reasoning for his conclusion. He purported to base his opinion on a review of the materials submitted in opposition to the motion for summary judgment, plus "job specifications reflecting the proposed use of asbestos-containing plastic cement, wallboard and topping compound specified for use in the new construction of the Pacific Presbyterian Medical Center in the early 1970s." The expert's supplemental declaration raises more questions than it answers: Where are these job specifications? Do they actually name Kaiser products containing asbestos? How does he know the Kaiser products contained asbestos? An expert's speculations do not rise to the status of contradictory evidence, and a court is not bound by expert opinion that is speculative or conjectural. Plaintiffs cannot manufacture a triable issue of fact through use of an expert opinion with self-serving conclusions devoid of any basis, explanation, or reasoning. The trial court properly granted defendants' motion for summary judgment. * * * 3. Comments about the exam answers. Taking good advantage of the open book format, most of you did a credible job in setting forth the standards for summary judgment under Rule 56. You worked through the shifting burdens identified in Justice Brennan’s opinion in Celotex, recognizing that because Kaiser Cement and Kaiser Gypsum did not have the burden of persuasion at trial, they had some choices in terms of how they could present their motions. I was looking for answers which did a good job of comparing the facts presented in the question to those presented in the Adickes and Celotex cases. It was useful to assert that the 5 6 defendants’ cases here were inadequate under one case or the other, but it was even more persuasive to compare the cases in detail. It was also useful to discuss each defendant separately. Some of you concluded that one defendant or the other had a better case for summary judgment, though most of you concluded that neither had met the standards of Rule 56 or CCP § 437c. I also wanted you to go beyond the question of whether the defendants had supported their motions adequately. It was important to determine whether the plaintiff had been able to “designate ‘specific facts showing that there is a genuine issue for trial.’” Celotex (Marcus at 416). Since the inquiry on summary judgment matches the standard for judgment as a matter of law, the ruling on summary judgment must be considered in light of the substantive evidentiary standard of proof that would apply in a trial on the merits. Thus, it would have been useful to assess the record in light of the cases we read on judgment as a matter of law. Was McGonnell in better or worse shape than were the plaintiffs in Galloway (Marcus p. 585), Lavender (p. 601), Chamberlain (p. 606), Boeing (p. 609) or Stout (p. 611)? For example, was McGonnell’s expert subject to the same sort of criticism as was Galloway’s? I.e., was the expert being asked to fill in too large a gap in the evidence? Another case you might have considered applying was Guenther (p. 613). This was potentially useful for two reasons. First, both Guenther and McGonnell had made statements which did not help their respective cases, but Guenther was allowed to have the jury decide whether his memory was faulty. Should McGonnell have been allowed to do something similar? Second, Guenther and the notes following discussed judicial skepticism of probabilistic evidence. Was McGonnell’s expert offering anything more than that? If so, what was the basis for the opinion? Turning to the question of whether the motion should have been decided differently under state law, most of you recognized that the burden on the moving party in California is effectively higher than it is in federal practice. Part of this is cultural, as we discussed, and part of this is reflected in the different standards. Thus, in California, there must be concrete evidence from the moving party, and not just a bare assertion, that the opposing party has no evidence to support a particular claim. Scheiding (K&L at p. 571). See also Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826, 850, 107 Cal.Rptr.2d 841, 24 P.3d 493 (2001) (latest views of the California Supreme Court on how § 437c differs from federal practice). Nevertheless, it was important to compare the record in the McGonnell situation from that in Scheiding. In the latter, the Dinwiddie Company was faulted for not even asking the plaintiff in the deposition about itself. McGonnell was evidently asked, but he could not recall any exposure to the defendants’ products. Was this enough of a difference to distinguish the cases? (See above, where the actual McGonnell court thought so.) See also Scheiding’s discussion of Hunter (K&L at p. 573) (“[I]t was enough to show through factually vague discovery responses that plaintiff lacked any significant probative evidence on the critical issue of causation”.) This sort of factual comparison made for a more complete and persuasive answer.