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Tilting at Windmills: Cottle Proceedings Are Not Legitimate Pretrial Devices to Dispose of Toxic Injury Cases

By Greg Coolidge


Introduction

In their May 9, 2001 article, “Eye-Balling It: Cottle Proceedings Are Powerful Pretrial Tools to Focus on the Merits of Claims, Defenses or Issue,” James P. Barber and William J. Baron argue that Cottle v. Superior Court (1992) 3 Cal.App.4th 1367 stands for the proposition that trial courts possess inherent authority to employ Cottle proceedings — whereby a plaintiff in a complex toxic injury case is required to make a prima facie showing of causation before the case is permitted to proceed — as legitimate pretrial devices for disposing of causes of action and cases.  As stated by the authors, in such a proceeding “there is no need for an initial showing by one party before the other party may be required to make a prima facie showing,” “there is no burden-shifting involved, as in summary adjudication,” and “[i]n many cases, it is simpler and less cumbersome than other pretrial procedures designed to eliminate cases with no factual support.”   Thus, the purpose of a Cottle proceeding is clear —  to provide defendants with an elusive and much sought after procedural short-cut — a non-statutory, pretrial device to dispose of complex toxic injury cases, without having to satisfy the requirements of  summary judgment, and without having to afford plaintiffs their right to a jury trial.

As a firm specializing in representing plaintiffs in toxic injury cases, we have faced Cottle motions in the vast majority of our cases over the past five years.  The authors state that Cottle proceedings will most likely be employed after the close of discovery and before trial (post-discovery proceedings).  However, in every case in which we have faced a Cottle motion, defendants have requested the court to require plaintiffs to make a prima facie showing of causation before discovery is allowed to proceed (pre-discovery proceedings), and if such a showing cannot be made as to particular defendants, the claims against these defendants will be dismissed.   Such motions are ordinarily disguised as proposed case management orders, in which defendants request the court to “narrow the issues” and “manage discovery” by limiting discovery and requiring plaintiffs to make the requisite prima facie showing before defendants “are required to undergo the time and expense of conducting extensive discovery and preparing summary judgment motions.”

Our firm has successfully defeated every Cottle motion we have faced because, contrary to the authors’ position, pre-discovery and post-discovery Cottle proceedings are not legitimate pretrial devices to dispose of complex toxic injury cases for the following reasons: (1) pre-discovery Cottle proceedings are preempted by Rule 981.1 of the California Rules of Court; (2) subsequent to Rutherford v. Owens-Illinois (1997) 16 Cal.4th 953, Cottle is no longer good law, because Cottle proceedings conflict with procedural due process, the Seventh Amendment right to a jury trial, the Civil Discovery Act, California Code of Civil Procedure Section 437(c), and the attorney work-product doctrine; and (3) assuming Cottle is still good law, Cottle proceedings are limited to the extraordinary circumstances present in Cottle, and even in their limited use, Cottle proceedings are no longer necessary because of subsequent changes in summary judgment procedures.

Pre-discovery Cottle Proceedings Are Preempted by California Rule of Court 981.1

The authors argue that “except as provided by local rules (principally for matters designated as ‘complex’), there is no statutory counterpart [to federal rules of procedure] for the pretrial review of evidence” employed in Cottle proceedings.  Nonetheless, pursuant to Sections 128(a)(8) and 187 of the Code of Civil Procedure and Section 19 of the Standards for Judicial Administration (now Rule 1800 of the California Rules of Court), the authors argue that Cottle proceedings are authorized by the inherent authority of trial courts to establish local procedures to govern, manage, and administer matters before them.   That is, as part of their inherent authority to manage complex litigation, trial courts are purportedly authorized to adopt local pretrial procedures that require plaintiffs to make a prima facie showing of causation before plaintiffs are permitted to proceed with discovery.

However, such pre-discovery Cottle procedures are preempted by Rule 981.1 of the California Rules of Court, which has been in effect since July 1, 2000.  Pursuant to Rule 981.1(a), “[t]he Judicial Counsel preempts local court rules relating to pleadings, demurrers, ex parte applications, motions, discovery, provisional remedies, and form and format of papers.  No trial court, or any division or branch of a trial court, shall enact or enforce any local rule concerning these fields.  All local rules concerning these fields are null and void as of the effective date of this rule . . . .”  Pursuant to Rule 981.1(b), the only local rules or procedures that may be adopted in the above areas are those relating to “trial and post trial proceedings” and “local court rules adopted under the Trial Court Delay Reduction Act.”

A local pretrial procedure that conditions discovery on first making a prima facie showing of causation affects the right and timing of discovery, procedural matters concerning which the Legislature has enacted comprehensive legislation, to wit, the Civil Discovery Act.  Section 20 of the Civil Discovery Act provides:  "This act shall govern all discovery proceedings in actions filed on or after [its effective date]."  The Act is comprehensive in its scope, includes substantial penalties for misuses of discovery, and does not include any provisions that condition discovery on the making of a prima facie showing.   Since the Act governs all discovery proceedings in civil actions, and the Act does not condition the right or timing of discovery on first making a prima facie showing of causation, a local pretrial procedure that conditions discovery on such a showing is preempted by Rule 981.1.

 

Subsequent to Rutherford, Cottle Is No Longer Good Law

The Cottle court affirmed the trial court’s prima facie procedure on the basis of a trial court’s inherent authority under Sections 128(a)(8) and 187 of the Code of Civil Procedure and Section 19 of the Standards for Judicial Administration to manage, govern, and administer complex litigation.   However, subsequent to Cottle, the California Supreme Court decided  Rutherford v. Owens-Illinois (1997) 16 Cal.4th 953, in which the court invalidated a local court procedure designed to shift the burden of proof for causation in asbestos litigation.  The court held that, although trial courts possess inherent authority to adopt local procedures to manage complex litigation,  “regardless of their source of authority, trial judges have no authority to issue courtroom local rules which conflict with any statute or are inconsistent with law.  If the [local rule or procedure] conflicts with any statewide statute, rule of law, or Judicial Council rule, then it is an inappropriate exercise of that court's powers under section 19 of the Standards of Judicial Administration.”  Id. at 967.    Subsequent to Rutherford, Cottle proceedings are no longer permissible, because requiring a plaintiff to make a prima facie showing of causation before discovery proceeds, or before a plaintiff’s case is allowed to proceed to trial, conflicts with numerous constitutional rights and statutes, including procedural due process, the Seventh Amendment right to a jury trial, the Civil Discovery Act, California Code of Civil Procedure Section 437(c), and the attorney work-product doctrine.

First, pre-discovery and post-discovery Cottle proceedings violate procedural due process rights, because no procedural mechanism exists under California law to implement such arbitrary proceedings.   The Civil Discovery Act and Code of Civil Procedure Section 437(c) do not suffer constitutional invalidity because detailed procedures for discovery and summary judgment have been established.  Parties are given notice and an opportunity to be heard,  parties have the right and opportunity to object, and the parties are required to satisfy established burdens of proof, all of which constrain arbitrary judicial discretion when deciding discovery disputes or determining whether to dispose of a plaintiff’s case.   None of these procedural due process protections are provided under court-made Cottle proceedings.  Assuming a trial court adopts a procedure that requires a plaintiff to make a prima facie showing of causation, how is the plaintiff to do this?  On affidavits?  Would the court hold a mini-trial?  A mini-trial for each defendant?  For each product?  Would the rules of evidence apply?   How is this to happen, other than through the imposition of arbitrary procedures that will determine the fate of an injured  plaintiff’s case?   Further, what standard would apply to determine whether a plaintiff has made the requisite prima facie showing?  The authors suggest that “the controlling standard is essentially the same as on a nonsuit motion: The test is whether the party has made a prima facie showing.”  However, the Cottle court did not adopt or suggest such a standard, and no statute or case provides a standard for Cottle proceedings, leaving trial courts free to adopt arbitrary standards of proof on a case by case basis.

Second, since there are no established procedures that prohibit a trial court from making factual determinations and weighing evidence when determining whether a prima facie showing of causation has been made, pre-discovery and post-discovery Cottle proceedings violate a plaintiff’s Seventh Amendment right to a jury trial.   Code of Civil Procedure Section 437(c) is constitutionally permissible only because a trial court determining the appropriateness of summary judgment is prohibited from making factual determinations and weighing evidence, both of which are functions exclusively within the purview of the jury.  The authors suggest that “Cottle is not a license to evaluate the credibility of witnesses or evidence,” but there are no established procedures that prohibit a trial court from making such factual determinations, and this prospect partially explains why defendants are so enamored with Cottle proceedings.  The prospect of an arbitrary process that terminates a plaintiff’s case prior to trial is simply too inviting for defendants to resist.

Third, pre-discovery Cottle proceedings clearly conflict with the Civil Discovery Act.  As previously discussed, the Act is comprehensive in nature, and does not provide that the right and timing of discovery may be conditioned on a prima facie showing of causation.  Further, in Coriell v. Superior Court (1974) 39 Cal.App.3d 487, 492, 114 Cal.Rptr. 310 Williamson v. Superior Court, 21 Cal.3d 829, 582 P.2d 126, 148 Cal.Rptr. 39 (1978) Kenney v. Superior Court (1967) 255 Cal.App.2d 106, 63 Cal.Rptr. 84 South Tahoe Public Utility District v. Superior Court (1979) 90 Cal.App.3d 135, 154 Cal.Rptr. 1C.C.P. § 2034.

In making its decision to affirm the trial court’s procedure, the Cottle court recognized the importance of the attorney work product doctrine by noting that the designation of plaintiffs’ experts had occurred prior to the date on which plaintiffs were required to make a prima facie showing of causation: “The final order was made on the eve of trial, apparently at a time after petitioners had submitted their lists of designated experts. Had the order been made earlier in the proceedings, we would be more inclined to hold that the order was an abuse of the court's discretion.” Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1379.

Cottle Is Limited by its Extraordinary Facts and Even in their Limited Use, Cottle Proceedings Are No Longer  Necessary Because of Changes in Summary Judgment Procedures

Even assuming Cottle is still good law, Cottle simply does not stand for the proposition that a trial court in any complex toxic injury case is authorized to adopt a procedure that requires a plaintiff to make a prima facie showing of causation.  Cottle was an extraordinary case, in which approximately 175 owners and renters of contaminated property sued various defendants for personal injuries and property damage allegedly caused by chemical substances contaminating their property.  In response to a master set of interrogatories jointly propounded by all defendants, the plaintiffs conceded that they could not identify any toxic injuries caused by exposure to chemical substances, but reserved their rights to assert personal injury claims as more information became available.  When such information was not produced a month before trial, and after all discovery had been conducted, the trial court required plaintiffs to make a prima facie showing of causation before their personal injury claims could proceed to trial.  The court subsequently issued an order excluding all evidence of personal injury when plaintiffs failed to provide any admissible evidence to support a prima facie showing of causation.

In affirming the trial court’s procedure and order, the Cottle court noted that this was a mass toxic tort case brought by hundreds of plaintiffs, who attributed headaches, colds, cramps, insomnia, and myriad other injuries to exposure to toxic chemicals, but who failed through the course of discovery to produce any evidence that these injuries were caused by toxic chemicals, and the impending trial was estimated to last as long as two years.   The court expressly stated that its decision was predicated on the unique facts of the case and the fact that all discovery and designation of experts had been completed prior to the court’s order:   “[W]e conclude that a court should consider the totality of the circumstances of the particular case in deciding how to manage a complex litigation case.  In the instant case, the timing of the order is crucial to its legitimacy. The order was issued on July 2, 1991, and the trial was set to commence on August 5, 1991. Thus, the final order was made on the eve of trial, apparently at a time after petitioners had submitted their lists of designated experts.   Had the order been made earlier in the proceedings, we would be more inclined to hold that the order was an abuse of the court's discretion.”   Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1379.   The court stated further: “In order to recover damages for physical injury, petitioners would need to introduce evidence that to a degree of reasonable medical probability, their injuries had been caused by exposure to chemicals.  Certainly, early in the proceedings, it would have been unreasonable to expect petitioners to make such a connection prior to conducting discovery, but on the eve of trial, requiring such a showing is not unreasonable.  Id. at 1384.

Thus, Cottle does not provide authority for the proposition that a trial court may adopt a pre-discovery procedure that requires a plaintiff to make a prima facie showing of causation as a condition of proceeding with discovery.  In fact, Cottle explicitly rejects such a proposition.  Further, Cottle does not provide authority for the proposition that a trial court, in any complex toxic injury case,  may adopt a post-discovery procedure requiring a prima facie showing of causation before a plaintiff’s case is permitted to proceed to trial.  Rather, such a post-discovery procedure is limited to extraordinary toxic injury cases, in which hundreds of plaintiffs allege toxic injuries as a result of their exposure to numerous chemical substances, where on the eve of trial and after all discovery and expert designations have been completed, plaintiffs have failed to produce any evidence that their injuries are attributable to these chemical substances, and given the large number of plaintiffs,  alleged injuries, and chemical substances, summary judgment motions on the issue of causation are impracticable.  Such a procedure is simply not necessary or permissible in the ordinary toxic injury case, in which a single plaintiff alleges an identifiable toxic injury as the result of exposure to the chemical products or substances of a single defendant or multiple defendants.   In such ordinary cases, none of the extraordinary facts are present that compelled the Cottle court to affirm the trial court’s prima facie procedure.

Even in their extremely limited use, Cottle proceedings are no longer necessary to dispose of complex toxic injury cases without factual support.  At the time Cottle was decided, to successfully move for summary judgment, the various defendants were required to offer evidence that negated an essential element of the plaintiffs’ claims to satisfy their initial burden of proof.   Faced with the difficulties of presenting scientific evidence that negated the causation claims of 175 plaintiffs exposed to numerous chemical substances, the defendants in Cottle did not bring summary judgment motions, but rather waited until the eve of trial and requested the trial court to require the plaintiffs to make a prima facie showing of causation before proceeding to trial.   Pursuant to the 1992 and 1993 amendments to Code of Civil Procedure Section 437(c), and cases interpreting the amendments such as Union Bank v. Superior Court (1995) 31 Cal.App.4th 573 and Lopez v. Superior Court (1996) 45 Cal.App.4th 705, a defendant moving for summary judgment may now satisfy its initial burden of proof by showing that a plaintiff possesses no evidence to support an essential element of a claim.  The burden then shifts to the plaintiff to show the existence of a triable issue of fact.   Given existing summary judgment procedures,  the various defendants in Cottle could have easily satisfied their initial burden of proof, because plaintiffs maintained throughout the course of discovery that they could not identify any toxic injuries caused by exposure to chemical substances,   Thus, defendants in complex toxic injury cases seeking summary judgment under similarly unique circumstances no longer face the difficulties of proof that compelled the Cottle court to affirm the trial court’s extraordinary prima facie procedure. 

In short, Cottle was an aberrant decision, in which the court affirmed the trial court’s prima facie procedure as a result of extraordinary facts and circumstances that may never be repeated.   Thus, Cottle is a classic example of the legal truism that good facts make bad law.   This truism is clearly illustrated by the repeated attempts of defendants to invoke Cottle as support for the proposition that trial courts possess inherent authority in any toxic injury case to adopt Cottle proceedings that require injured plaintiffs to make a prima facie showing of causation before proceeding with discovery or proceeding to trial. Cottle proceedings are simply not the panacea that defendants have been searching for, but are rather the unique exception to the rule that defendants seeking to dispose of  toxic injury cases are required to follow proper procedures, including motions for summary judgment and defending plaintiffs’ claims at trial.

 

Greg Coolidge is a senior attorney with the Metzger Law Group, a Professional Law Corporation.  Mr. Coolidge’s practice focuses on occupational toxic tort cases, including hematological diseases from benzene exposure and interstitial lung diseases from inhaled toxins.



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