The Death of Cottle Proceedings in California

by Greg Coolidge, Esq.

In an article entitled, “Tilting at Windmills: Cottle Proceedings Are Not Legitimate Pretrial Devices to Dispose of Toxic Injury Cases,“  I responded to a May 9, 2001 article by James P. Barber and William J. Baron entitled, “Eye-Balling It: Cottle Proceedings Are Powerful Pretrial Tools to Focus on the Merits of Claims, Defenses or Issue,” who argued that Cottle v. Superior Court (1992) 3 Cal.App.4th 1367 allows trial courts to dispose of causes of action and even entire cases by means of a “Cottle” hearing -- a hearing in which the plaintiff in a complex toxic injury case is required to make a prima facie showing of exposure and causation before the case is permitted to proceed.

In my previous article, I argued that both pre-expert designation Cottle proceedings, (i.e., where a plaintiff is required make a prima facie showing of exposure and causation prior to expert designation and depositions), and post-designation Cottle proceedings, (i.e., where such a prima facie showing is to be made after expert designation and depositions occur), are contrary to California law.   Specifically, I argued that  pre-expert designation Cottle proceedings
unavoidably violate and contravene the attorney work product doctrine and Code of Civil Procedure Section 2034, because a prima facie showing of exposure and causation requires the disclosure of expert exposure and causation opinions, and all such expert opinions are privileged  attorney work product prior to expert designation and depositions.   Moreover, I argued that post-designation Cottle proceedings violate and contravene Code of Civil Procedure Section 437c, because any prima facie procedure which permits a trial court to dismiss defendants for lack of an evidentiary showing violates and contravenes Code of Civil Procedure Section 437c, which provides that summary judgment is the exclusive pretrial procedure to dismiss a toxic injury action for insufficiency of evidence.

On September 29, 2003, the Second District Court of Appeal issued a landmark decision in Hernandez v. Superior Court (2003), 112 Cal.App.4th 285, 4 Cal.Rptr.3d 883, in which the Court of Appeal held that a trial court, even in a multi-defendant toxic injury action designated as complex litigation, is prohibited from requiring a plaintiff to disclose the exposure and causation opinions of his experts prior to expert designation and depositions as part of a prima facie showing of exposure and causation, because such disclosure violates the attorney work product doctrine and C.C.P. Section 2034.  Moreover, the Court of Appeal noted that even after expert designation and depositions occur, a trial court may not dismiss defendants for lack of a prima facie showing of exposure or causation, because Code of Civil Procedure Section 437c requires defendants to bring properly supported motions for summary judgment on the issues of exposure and causation to be dismissed from a toxic injury action for insufficiency of evidence.  In so doing, the Hernandez court pronounced the death of Cottle proceedings in California.

In Hernandez, a widow and her seven children represented by the firm at which I am employed allege that Jose Hernandez’s interstitial pulmonary fibrosis and death was caused by his exposure to toxic metallic and inorganic fumes and dusts which were generated during the use of various grinding and sanding machines, abrasive products, chemical products, and aluminum alloy products manufactured and distributed by approximately eighty named defendants.   As part of a case management order requested by defendants, the trial court ordered plaintiffs to make a prima facie showing of exposure and causation, which required plaintiffs to unilaterally disclose the exposure and causation opinions of their experts several months before expert designation, and therefore several months before defendants would be required to disclose the exposure and causation opinions of their designated experts.   The trial court’s CMO also provided that in lieu of motions for summary judgment, the trial court retained the authority to issue terminating sanctions as to those defendants for which plaintiffs failed to make the requisite prima facie showing.   Plaintiffs thereafter filed a Petition for Writ of Mandate, in which plaintiffs requested the Court of Appeal to strike these portions of the trial court’s CMO.

The Hernandez court held that a trial court may not manage and control litigation in a complex toxic injury action by requiring plaintiffs to unilaterally disclose the exposure and causation opinions of their experts prior to expert designation and depositions, because such disclosure violates the attorney work product doctrine and C.C.P. Section 2034:  “[T]he trial court's case management order . . . , was in conflict with procedures specified by statute and established rules of law, insofar as it required the unilateral disclosure of the identity of each medical expert who would support petitioners' claims, the expert's curriculum vitae, and the expert's opinion with regard to causation. It was not, therefore, a proper exercise of the trial
court's power to manage complex litigation  (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967) (Trial courts may not adopt procedures that conflict with any statute).”  Hernandez v. Superior Court (2003) 4 Cal.Rptr.3d 883, 895.     The Hernandez court also noted that a unilateral disclosure of expert opinions violated the inherent equity of Code of Civil Procedure Section 2034, which provides that all expert opinions must be disclosed simultaneously so neither side in the litigation is provided with an unfair advantage. Hernandez v. Superior Court (2003) 4 Cal.Rptr.3d 883 (“In general, fairness demands adherence to the statutory procedures, since they were designed to place the parties on roughly equal footing”).

In so holding, the Hernandez court rejected defendants’ argument that Cottle provides authority for such court-ordered disclosure expert opinion, because the Cottle court required plaintiffs to make a prima facie showing of exposure and causation long after expert designation and depositions had taken place:  “The issue in Cottle was whether the trial court may, on the eve of trial, exclude evidence of physical injury in complex litigation, where the plaintiffs have admitted that they had not been  diagnosed with any physical injury or ailment as a result of their exposure to toxic substances. The question of whether a trial court may order an early, unilateral exchange of experts was not considered by the appellate court, and its opinion is therefore not authority on that issue.”   Hernandez v. Superior Court (2003) 4 Cal.Rptr.3d 883, 896.  

The holding of the Hernandez court is consistent with previous California decisions which provide, without exception, that a trial court may not order the unilateral disclose of expert opinions prior to the voluntary disclosure of such opinions at the expert’s deposition after expert designation has taken place, because the disclosure of such opinions at the depositions, and not the mere fact of designation, waives attorney work product protection.  See  County of Los Angeles v. Superior Court (1990) 222 Cal.App.3d 647, 271 Cal.Rptr. 698; Shadow Traffic Network v. Superior Court (2nd Dist. 1994) 24 Cal.App.4th 1067, 1079; Shooker v. Superior Court (2003) 3 Cal. Daily Op. Serv. 7952, 2003 Daily Journal D.A.R. 9869.

Greg Coolidge is an associate with the Metzger Law Group.  His practice is concentrated on litigating occupational toxic tort cases, mostly for hematologic malignancies and pulmonary diseases.