Judge: Kenneth R. Freeman, Case: 21STCV35846, Date: 2024-05-08 Tentative Ruling


Case Number: 21STCV35846    Hearing Date: May 8, 2024    Dept: 14

WILZIG v. MONSANTO COMPANY


MOTION FOR PREFERENCE AND TRIAL SETTING

 

TENTATIVE RULING

 

            Grant motion for trial preference; set matter for trial within 120 days from the Court’s final order on the motion.

 

DISCUSSION

 

I. Background

 

This is a products liability action filed against Defendant Monsanto Company, a manufacturer of glyophosphate herbicide, marketed under the brand name Roundup®. [Complaint, ¶1.] Additionally, as of 2009, Monsanto was allegedly the world’s leading producer of seeds, accounting for 27% of the world seed market. [Complaint, ¶2.] The majority of these seeds are the Roundup Ready® brand. [Id.] The stated advantage of Roundup Ready® crops is allegedly that they substantially improve a farmer’s ability to control weeds, since glyphosate can be sprayed in the fields during the growing season without harming the crops. [Id.]

 

The International Agency for Research on Cancer (“IARC”) has classified glyphosate as a Group 2A herbicide, which, Plaintiff alleges, is probably carcinogenic to humans. [Complaint, ¶6.] Plaintiff alleges that he consistently applied Roundup® and/or other Monsanto glyphosatecontaining products (“Roundup”) beginning in approximately the early 1980s and continuing up until 1998. [Complaint, ¶17.] Plaintiff alleges that as a result of his exposure to Roundup® and/or other Monsanto glyphosatecontaining products (“Roundup”) in the state of California, County of Los Angeles from approximately the early 1980s to 1998, Plaintiff was diagnosed with non-Hodgkin lymphoma in April 2004. [Complaint, ¶18.] Plaintiff alleges that as a direct and proximate result of Plaintiff’s use of Roundup® and/or other Monsanto glyphosate-containing products (“Roundup”), supplied and/or distributed by Defendants, Plaintiff suffered significant harm, conscious pain and suffering, physical injury and bodily impairment including, but not limited to non-Hodgkin lymphoma and other cancers, other permanent physical deficits, permanent bodily impairment and other injury sequelae. [Complaint, ¶19.] Plaintiff’s injuries required medical intervention to address the adverse physical effects and damage caused by Plaintiff’s use of Roundup® and/or other Monsanto glyphosate-containing products (“Roundup”). [Id.]

 

Plaintiff alleges claims for: 1. Strict Liability – Design Defect; 2. Strict Liability – Failure to Warn; 3. Negligence; 4. Fraud; 5. Breach of Express Warranties; 6. Breach of Implied Warranties; 7. Loss of Consortium; and 8. Exemplary and Punitive Damages.

 

Plaintiff has moved for a trial preference pursuant to CCP §36(a).

 

II. Defendant’s Evidentiary Objections

                        1. Objections to Declaration of David Wilzig

            1. Wilzig Decl., ¶5: Overruled.

 

            2. Wilzig Decl., ¶6: Overruled.

 

                        2. Objections to Declaration of Mark P. Robinson

            1. Robinson Decl., ¶3 and Exh. 1 thereto: Overruled.

 

            2. Robinson Decl., ¶4: Overruled.

 

            2. Robinson Decl., ¶5: Overruled.

 

III. Motion for Trial Preference

                       

Plaintiff moves for preference pursuant to CCP §36(a), or, alternatively, under CCP §36(e). In support of the motion, Plaintiff has submitted his own declaration, and the declaration of counsel Robinson.

 

            Plaintiff declares that he was born June 10, 1942, and is presently 81 years old. [Wilzig Decl., ¶2.] He declares that in late 2003, he started to have upper respiratory and cold symptoms. [Wilzig Decl., ¶3.] When his symptoms did not improve, he was referred for a bone marrow biopsy, which he underwent in March 2004. [Id.] Following the biopsy in 2004, Plaintiff declares, he was diagnosed with Chronic Lymphocytic Leukemia. [Id.] He underwent another bone marrow biopsy in 2016 and his doctors revised his diagnosis to splenic marginal zone lymphoma. [Id.]

 

            Plaintiff declares that he has undergone treatment for cancer since 2004. [Wilzig Decl., ¶4.] With treatment with Rituxan, Plaintiff declares, he has achieved periods of remission followed by periods of relapse. [Id.]

 

            Recently, Plaintiff attests, his doctors informed him that Rituxan was no longer sufficiently treating his cancer. [Wilzig Decl., ¶5.] His doctors started him on chemotherapy, with the first cycle of chemotherapy medications (Bendamustine and Obinutuzumab) administered on January 30. [Id.] Plaintiff declares that his doctors informed him that he will have cycles of chemotherapy for four months. [Id.] The chemotherapy treatments, according to Plaintiff, have been extremely hard, and he declares he has suffered from neuropathy and brain fog. [Id.]

 

            Plaintiff declares that because his health is deteriorating, he is very concerned that he may not live long enough to see his trial or be in sufficient health to be able to testify and participate in his trial. [Wilzig Decl., ¶6.] Mr. Wilzig declares that he wishes to live long enough to see this case to verdict, but is fearful that his cancer will not allow that wish to come true. [Wilzig Decl., ¶7.]

 

            In addition to Plaintiff’s declaration, he has submitted the declaration of counsel Mark Robinson. Mr. Robinson declares that Plaintiff is 81 years of age and was diagnosed with chronic lymphocytic leukemia of B-cell type, a form of Non-Hodkin’s Lymphoma, in 2004. [Robinson Decl. ¶2.] Counsel attests that despite having undergone treatment for nearly 20 years, Mr. Wilzig continues to suffer from recurrences of his NHL, and is set to undergo additional rounds of chemotherapy and radiation treatment, which counsel understands will further deteriorate his medical condition. [Robinson Decl., ¶3.] He attaches as Exhibit 1 a true and correct copy of Plaintiff’s medical records.

 

Counsel declares that his understanding, based on information and belief with respect to his client’s medical diagnosis and prognosis, is that Mr. Wilzig’s medical condition is deteriorating such that additional chemotherapy is necessary in order help Plaintiff survive the cancer. [Robinson Decl., ¶4.] Counsel’s understanding is that Mr. Wilzig recently began undergoing this chemotherapy treatment. [Id.]

 

Given Mr. Wilzig’s deteriorating medical condition, counsel believes that his client may not survive long enough to see the day his case goes to trial, or he may be in a condition that deprives him from meaningfully participating, attending, or testifying at trial, which would substantially prejudice his interest in the litigation. [Robinson Decl., ¶5.]

 

            Preliminarily, there is no dispute that Plaintiff satisfies the requirement under CCP §36(a) and (a)(1) – namely, that he is over 70 years of age (he is 81) and that he has a substantial interest in the litigation as a whole. The issue in connection with the §36(a)(2) analysis is whether Plaintiff’s health “is such that a preference is necessary to prevent prejudicing [Plaintiff’s] interest in the litigation.”

 

            Counsel’s declaration can be based on hearsay and can be based on counsel’s information and belief as to Plaintiff’s medical diagnosis and prognosis. Counsel’s declaration is based on such hearsay evidence, is premised on information and belief, and attaches a medical report dated September 30, 2022. Plaintiff himself attests that he recently has commenced chemotherapy treatment (the first dose having been administered this past January), these treatments have been hard, and declares that he has suffered from neuropathy and brain fog. [Wilzig Decl., ¶5.] Mr. Robinson himself declares that based on information and belief, Mr. Wilzig’s condition is deteriorating. [Robinson Decl., ¶¶3, 4.]

 

            Defendant has opposed the motion, arguing that Plaintiff fails to provide any information that his health or cognitive abilities are significantly impaired now or will be in the future. [Opposition at 1:6-8.] According to Defendant, there is no evidentiary foundation established for Plaintiff’s beliefs, concerns, and understandings. Defendant has also submitted the Declaration of Dr. William Fleming, M.D., Ph.D., a board-certified and practicing oncologist. Dr. Fleming concludes there is no evidence that a trial preference is necessary, that there is no reliable basis for Plaintiffs’ concerns that Plaintiff may not survive if the action proceeds to trial in ordinary course, or that he will be so impaired that he cannot meaningfully participate in the case.

 

            In Fox v. Superior Court (2018) 21 Cal.App.5th 529, the Court of Appeal reversed a trial court’s denial of a CCP §36(a) preference motion. The plaintiff (Ms. Fox) had sued a group of defendants, alleging personal injuries as a result of asbestos exposure. She sought preference under §36(a), on grounds that she suffered from Stage IV lung cancer and related ailments. The plaintiff had submitted, inter alia, a declaration from her counsel, reporting that not only had the cancer metastasized to the plaintiff’s demur, clavicle, and spine, but that she also suffered from asbestosis, asbestos-related pleural disease, severe coronary artery disease, and anemia. Fox  at 532. The court also recounted that the plaintiff received chemotherapy treatments every three weeks, was responding to the chemotherapy, and was in partial remission, but that she experienced severe side effects (including “chemo brain” or fogginess in the thought process).

 

            Two defendants, including defendant Metalclad, opposed the motion, and the court granted the motion. The Court of Appeal, in reversing, determined that the trial court conflated the more rigorous evidentiary requirement of CCP §36(d) with the more relaxed requirement of CCP §36(a). The Fox court reiterated the requirement under subdivision (a) that “a showing that the party’s ‘health…is such that a preference is necessary to prevent prejudicing [her] interest in the litigation.’” Fox at 534 (citing CCP §36(a)).

 

The Fox court stated:

 

Metalclad purports to dispute the extent of Ms. Fox's health problems and claims the trial court was entitled to assess the “veracity” of her declarations. And in making that assessment, we are told, the absence of more medical details, including some indication of her “life expectancy,” was relevant. If by way of opposition Metalclad had submitted, say, a photograph of 81-year-old Ms. Fox scuba-diving in the Galapagos Islands just last fall, there might be some basis to expect more medical detail, but on this record we see no genuine dispute that Ms. Fox is very sick. It is uncontroverted she suffers from stage IV lung cancer and severe coronary artery disease, among other ailments. She is undergoing chemotherapy treatments, but is in constant discomfort and has difficulty performing basic life functions. And critically, her mental state has deteriorated to a point where she becomes confused and forgetful. All told, the evidence shows that while Ms. Fox is currently able to participate in a trial, she has good reason for concern that will not be the case for much longer as her health deteriorates. In the face of this uncontroverted showing, we think it was error to deny her preference on the trial calendar. We see no basis for the ruling here other than the mistaken interpretation of section 36, subdivision (a) urged by Metalclad.

 

Beyond the proof the Foxes offered, we are hard pressed to see what more they would need to present to justify entitlement to calendar preference under subdivision (a). For those in Ms. Fox's unfortunate situation, the end may come quickly with little warning; years may pass with gradual, relentless decline before the battle is lost; or, happily, there may be sustained remission after episodic periods of improvement and relapse. Anyone who has ever heard a physician say in these circumstances, “we just can't predict with any certainty,” will appreciate that indeterminacy is not only inherent in the situation, but is part of the challenge of dealing with it. We therefore agree that, on this record, the absence of more specifics about Ms. Fox's prognosis was insufficient reason to deny the Foxes’ request for calendar preference. Metalclad's position to the contrary, in our view, grafts the more stringent standard of subdivision (d) onto subdivision (a) in derogation of the text and structure of the statute. Fox, supra, 21 Cal.App.5th at 535-536 (emphasis added).

 

            Here too, the standard under which Plaintiff moves for preference is the more relaxed standard of CCP §36(a) – not the more stringent standard of CCP §36(d). As in Fox, Plaintiff here has recently started chemotherapy treatments, and these treatments are expected to last another month. Plaintiff declares he has experienced “brain fog”, and under a fair reading of Plaintiff’s declaration at ¶5, the brain fog was due to the chemotherapy. Both plaintiff and his counsel declare that his health is deteriorating. This evidence is not entirely specific, but, as Fox and the authorities above make clear, it need not be in order to grant preference. The Court is satisfied that the relaxed standards for preference under CCP §36(a) are satisfied, and the motion is granted under this section.

 

            Alternatively, Plaintiff moves for preference pursuant to CCP §36(e). This section provides:

 

(e) Notwithstanding any other provision of law, the court may in its discretion grant a motion for preference that is supported by a showing that satisfies the court that the interests of justice will be served by granting this preference.

 

            Given the Court’s finding that preference is warranted under CCP §36(a), the Court need not address the alternative grounds for preference under CCP §36(e).