3 Cal.App.4th 1367, B060125, Cottle v. Superior Court

Docket Nº:B060125
Citation:3 Cal.App.4th 1367, 5 Cal.Rptr.2d 882
Opinion Judge:[11] Woods
Party Name:Cottle v. Superior Court
Attorney:[7] Rucker & Clarkson, Fred Rucker and John P. Doyle for Petitioners. [8] No appearance for Respondent. [9] Lewis, D'Amato, Brisbois & Bisgaard, Christopher P. Bisgaard, Allyn O. Kreps, John H. Shimada, Judith A. Zipkin, Arter, Hadden, Lawler, Felix & Hall, Stephen T. Swanson, Bart L. Kessel, Law...
Case Date:February 26, 1992
Court:California Court of Appeals

Page 1367

3 Cal.App.4th 1367

5 Cal.Rptr.2d 882

WILLIAM S. COTTLE et al., Petitioners,



OXNARD SHORES COMPANY et al., Real Parties in Interest.


California Court of Appeal, Second District, Seventh Division

February 26, 1992

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Rucker & Clarkson, Fred Rucker and John P. Doyle for Petitioners.

No appearance for Respondent.

Lewis, D'Amato, Brisbois & Bisgaard, Christopher P. Bisgaard, Allyn O. Kreps, John H. Shimada, Judith A. Zipkin, Arter, Hadden, Lawler, Felix & Hall, Stephen T. Swanson, Bart L. Kessel, Lawler, Bonham & Walsh, Byron J. Lawler, Carol A. Woo, Murchison & Cumming, Cindy Hiroto Roberts, Kenneth H. Moreno, Beth E. Graff, Nordman, Cormany, Hair & Compton, Glen M. Reiser and Jonathan Fraser Light for Real Parties in Interest.

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WOODS (Fred), J.—


Petitioners herein are plaintiffs in one of two consolidated toxic tort actions. Petitioners are known as the Cottle plaintiffs.1

In the underlying action, approximately 175 owners and renters of certain residential properties located in the Oxnard Dunes (the Dunes) residential subdivision in Oxnard, California sued various defendants (some of whom are real parties in interest herein) for personal injuries (both physical injuries and emotional distress injuries) and property damages as a result of defendants' construction and development of the Dunes on a site that for many years had been used as a dumping ground for certain oil industry hazardous wastes and other by-products. In particular, plaintiffs allege that they suffered injuries due to defendants' failure to disclose the prior use of the property.

After preliminary orders and hearings, the trial court issued an order excluding petitioners from submitting evidence at trial that their personal physical injuries were caused by exposure to chemicals at the Dunes. Petitioners sought review of that order by way of a writ petition, and we granted review. We conclude that the court acted within its authority, affirm its order as clarified and deny the petition for a writ of mandate.

Factual and Procedural Synopsis

In the complaint,2 each Cottle plaintiff claimed to have sustained a myriad of physical injuries and ailments ranging from: "liver damage, suppressed

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immune systems, increased susceptibility to leukemia, malignant neoplasms and other forms of cancer, risk of cancer, reproductive toxicity, birth defects, chromosomal damage, environmental acquired immune deficiency syndrome, respiratory diseases, neurological damage, mutagenesis, still births ...."

Early on in the litigation, the court determined that this case was a complex litigation case under section 19 of the California Standards of Judicial Administration.

In April 1989, plaintiffs responded to a master set of interrogatories. Interrogatory number 65 read:

"If you contend that you suffer any past, present or future Injury or Illness due to Exposure to Chemical Substances which resulted from the acts, errors or omissions of any defendant, give a detailed description of each such Injury or Illness. Your description should include the inclusive dates during which you suffered from each Injury or Illness."

The standard answer read:

"Objection: This interrogatory calls for both an expert medical opinion and a legal opinion as to the causal connection between exposure to chemical substances and negligent acts by the defendants. Plaintiff at this time cannot identify any injuries caused by exposure to chemical substances. However, plaintiff reserves all rights to assert claims for such injuries as more information becomes available."

The responses to other interrogatories inquiring into the identification of chemical substances to which plaintiffs had been exposed and the facts supporting their injury or illness and the manner of exposure were substantially the same.

In November 1990, The California Department of Health Services (DOHS) issued a draft remedial action plan and a remedial investigations report concerning the Dunes. The remedial report concluded that: "The waste materials do not pose any significant threat to the health of the residents living at the Dunes Subdivision ... or to the environment."

The remedial action plan was issued in final form in June 1991. The final report concludes that: "The Department has determined that the wastes, at present condition, do not pose any significant risks to public health or to the environment. Therefore, no further action is required at this site. The site will be delisted from the Hazardous Waste Bond Expenditure Plan List."

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On November 7, 1990, the court filed its case management order which provided that: "Each plaintiff shall file and serve a statement establishing a prima facie claim for personal injury and/or property damage. [¶] A. For personal injury claims, each plaintiff shall state the chemical or toxic substance to which that plaintiff was exposed; the date or dates and place of exposure; the method of exposure; the nature of plaintiff's injury; and the identity of each medical expert who will support the plaintiff's personal injury claim."

The case management order provided that the court "will issue Orders to Show Cause on its own motion as to why evidence should not be excluded at trial on behalf of any plaintiff who has failed to file such a statement." The case management order set February 1, 1991, as the deadline for plaintiffs' designation of experts and provided that: "No other witness will be permitted to testify as plaintiffs' expert, except upon order of the court based upon a showing of good cause."

Petitioners did not move for reconsideration or seek appellate review of the prima facie requirement.

Both groups of plaintiffs filed their statement of personal injury and property damages on January 7, 1991. In their uniform statement, the Cottle plaintiffs stated that: "it is virtually impossible to determine exactly how each Plaintiff resident was exposed, and to link the manner of chronic low level exposure to the symptoms manifested," and "[i]t is virtually impossible to determine specifically and exactly which of the substances ... present at the Dunes, each individual Plaintiff resident has been exposed to, exactly in what amounts (dosages), and precisely when." (Original italics.) Almost exactly the same language was used in the Dolan plaintiffs' uniform statement.

The Cottle plaintiffs also stated that: "[n]one of the Plaintiff residents have specifically been diagnosed by his/her treating physician as suffering from injury caused directly by exposure to the hazardous substances found in or around the Dunes," (fn. omitted), and "[t]he treating physicians were without benefit of knowing of the toxic exposures." Again, the Dolan plaintiffs used almost exactly the same language in their uniform statement.

The individual statements of the Dolan plaintiffs echoed that the individual plaintiff had not yet been diagnosed as suffering from injury caused by exposure and listed the known injuries, symptoms and complaints of the individual plaintiff.

In the individual statements of the 40 Cottle plaintiffs, the 21 nonresident owners stated that they did not claim personal injury damages. Of the 21

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nonresident owners, who all made emotional distress claims, 10 listed physical symptoms as part of their emotional distress claims. Of the remaining 19 residents, for 6 people, the only personal injury damages listed was emotional distress, and for 1 person, the only personal injury damages listed were emotional distress and loss of consortium. In other words, only 12 of the Cottle plaintiffs claimed to have suffered any personal physical injury due to exposure to chemicals at the Dunes.

Petitioners seem to link to the Dunes every physical infirmity or malady that they had suffered since becoming connected to the subdivision—headaches, dizziness, bronchitis, breathing problems, skin rashes, eye irritation, sinus problems, lack of energy, throat irritation, insomnia, muscle aches and cramps, stomach problems, diarrhea, ear infections, arthritis, and chronic colds and flu.

The court set a March 4, 1991, hearing on a motion to dismiss all plaintiffs' personal injury, emotional distress and property damages claims for failure to make the court-ordered prima facie showing.

The court found that plaintiffs had established their prima facie cases regarding their emotional distress and property damages claims, but not their personal physical injury claims.

In its March 12, 1991, ruling on submitted matter, the court stated that: "Implicit in this announced sanction [for failing to file a statement] was the ability to find that a prima facie showing had not been made, and to exclude evidence despite the actual filing of the document."

The court tentatively ordered the exclusion of "all evidence, by lay or expert witnesses, that plaintiffs have or will suffer any particular injury or illness based on exposure to toxic substances in the Dunes" unless plaintiffs could demonstrate by May 31, 1991, that viable claims for personal injury existed.

Petitioners again did not move for reconsideration or seek appellate review of the prima facie requirement.

On March 21, 1991, the McGrath defendants moved to delay the independent medical examination proposed for each of the plaintiffs in light of the plaintiffs' inability to set forth a prima facie showing of physical injury. The court granted the motion.

At the April 10, 1991, hearing on that...

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