Judge: Laura A. Seigle, Case: 23STCV30056, Date: 2024-03-26 Tentative Ruling
Case Number: 23STCV30056 Hearing Date: March 26, 2024 Dept: 15
[TENTATIVE] ORDER RE MOTION FOR PREFERENCE
On December 8, 2023,
Plaintiffs Gilbert Cornejo and Mary Cornejo filed their action for personal
injury caused by asbestos exposure. On
March 1, 2024, Plaintiffs moved for trial preference under Code of Civil
Procedure section 36, subdivision (d) and (e).
The court has
discretion to grant a motion for trial preference accompanied by clear and
convincing medical documentation concluding that one of the parties suffers
from an illness or condition raising substantial medical doubt of survival of
that party beyond six months and satisfying the court that the interests of
justice will be served by granting the preference. (Id., § 36, subd. (d).) Moreover, the court in its discretion may
grant a motion for preference supported by a showing that satisfies the court
that the interests of justice will be served by granting the preference. (Id., § 36, subd. (e).) “Upon the granting of such a motion for
preference, the court shall set the matter for trial not more than 120 days
from that date and there shall be no continuance beyond 120 days from the granting
of the motion for preference except for physical disability of a party or a
party’s attorney, or upon a showing of good cause stated in the record.” (Id., § 36, subd. (f).) “Any continuance shall be for no more than 15
days and no more than one continuance for physical disability may be granted to
any party.” (Ibid.)
Gilbert Cornejo was
diagnosed with malignant mesothelioma in July 2023. (Burns Decl., Ex. 1; Presser Decl., ¶ 15.) Dr. Presser reviewed his medical records and
surgical pathology reports and had a telemedicine visit with Cornejo on
February 20, 2024. (Presser Decl., ¶¶
14, 20.) Gilbert Cornejo’s treatment
plan included placing a Mediport, immunotherapy. In December 2023, a CT scan showed increased
activity associated with a mass in the left pelvis cephalad. He had an exploratory laparotomy with tumor
debulking and hyperthermic intraperitoneal chemotherapy on January 30, 2024. (Id. ¶¶ 17-19.) He suffers from weight loss, nausea,
exhaustion, loss of appetite, severe pain that requires narcotics, and a
general lack of energy. (Id. ¶
20.) The HIPEC surgery is very high
risk, has a very difficult recovery process, and placed a toll on Plaintiff’s
body. Plaintiff’s age, gender, and fact
that his disease is continuing to progress weigh against his long-term
survival. His health will decline and
there is substantial medical doubt as to his survival beyond the next six
months. (Id. at ¶¶ 23-25.)
Defendants argue that Dr.
Presser is not Gilbert Cornejo’s treating physician and did not give a basis
for his opinions about Cornejo’s expected life expectancy and current medical
status. (Chattem’s Opposition at p. 4.) Defendants contend that HIPEC surgery, far
from shortening Plaintiff’s life, is likely to increase Plaintiff’s 5-year
survival, citing a 2023 article.
(Chattem Opposition at p.5.)
In their reply, Plaintiffs
argue the 2023 article is a generalized study that cannot be used to predict Cornejo’s
survival, and the participants in the study were younger, female, and received
a different kind of surgery. (Reply at
p. 5.) However, neither party provided a
copy of the article. Nor did Plaintiffs
provide Cornejo’s more recent medical records regarding the surgery and his
post-surgery condition.
The motion is CONTINUED
to April 16, 2024 for Plaintiffs to produce his medical records from 2024 and
Defendant to file a copy of the article.
Those documents are to be filed by April 9, 2024
The moving party is to
order to give notice.