Backlogs mean dying plaintiffs can’t get to trial in time, lawmaker says

Dying plaintiffs have been confronting yet another harsh reality this year: Jumping to the front of a line doesn't mean much when the line isn't moving.

Now Assembly Judiciary Committee chair Mark Stone, D-Scotts Valley, says he is planning hearings for next year to address backlogs that have plaintiffs dying before they get their day in court.

"I am very concerned that civil litigants are being denied their day in court and especially the terminally ill," Stone said in an email Monday. "The courts should be prioritizing terminally ill patients' claims, even during this pandemic. As chair of the Judiciary Committee I have formally requested the Judicial Council to provide us with data from the courts. That will allow us to determine the scope of the problem and how the Legislature should address it."

Stone's office has asked the council to survey the state's 58 county superior courts to find out how often they are missing a 120-day deadline to hold an initial hearing for cases filed by a terminally ill plaintiff. He is also planning investigative hearings for next year on how COVID-19 has affected the court system.

His staff declined to give further details on what Stone might do in the coming year. But one potential legislative change would be to create "survival laws" for at least some types of claims.

This term refers to legal regimes in several other states that allow heirs to continue cases and receive damages in cases filed by a plaintiff who later dies. The rationale for such laws is that most terminally ill plaintiffs aren't seeking damages for themselves. They are hoping to help spouses and dependents they can no longer support after their deaths. Such systems help ensure survivors need not file a separate wrongful death case, restarting the clock and entailing further attorney fees.

"It is very much true," said David L. Amell, a partner with Maune, Raichle, Hartley, French & Mudd in Emeryville. "Unfortunately we've had several clients who because of the continuances and the court closures passed before they were able to see their day in court."

He said before the pandemic, the courts were "pretty good" about meeting the 120-day requirement. Amell added that wrongful death cases often provide less to survivors.

"If our clients pass before they see their day in court, they lose pain and suffering damages," he said.

The 120-day standard was part of a larger court operations bill passed in 2008. AB 1949 was labeled "noncontroversial" in committee analyses and passed without receiving a no vote. It included a provision -- barely debated at the time -- that scheduling preference be given to plaintiffs over 70 or who "suffer from an illness or condition raising substantial medical doubt of survival of that party beyond six months."

Then COVID related shutdowns hit an already overburdened civil court system. The crisis may be most prevalent in mesothelioma cases, in which the plaintiffs claim their terminal cancer was caused by products such as asbestos or talc. For instance, earlier this month a mesothelioma case against Johnson & Johnson in Alameda County was cut short when plaintiff Rosalino Reyes died. Reyes v. Johnson & Johnson, RG20052391 (Alameda Sup. Ct., filed Jan. 29, 2020).

Plaintiffs often die during mesothelioma cases. But the timing around Reyes' case helps illustrate the problem Stone is seeking to address.

Reyes' attorneys filed his complaint when COVID was still a distant, troubling story from the other side of the Pacific. After multiple pandemic-related delays, the court held his first hearing 127 days later. Reyes lived to see the beginning of his trial nearly five months after that, but not the end. His attorneys then announced they would file a wrongful death case instead.

One could hardly call Reyes lucky, but many subsequent plaintiffs may be even less likely to live to see their trial dates. Several large courts have announced they have backlogs of thousands of criminal cases that must be heard before most civil matters.

"While they're technically open, there's no one home," said Consumer Attorneys of California President Micha Star Liberty. "Most courts are not even functioning on a civil level right now."