February 08, 2016 Articles

Using Cottle Orders to Resolve Multiplaintiff Litigation in California Courts

By G. Gregg Webb and Edward Gaus

Cottle orders represent a practical tool formulated by California courts for disposing of facially defective claims in multiplaintiff cases, particularly those lacking causation. Such orders can save time and money for parties and courts; however, using them effectively requires respecting both their strengths and limitations.

If your client is a defendant in a products liability, toxic tort, or other personal injury action involving multiple plaintiffs, among your top priorities will be obtaining early dismissal of as many nonmeritorious claims as possible. For example, if serious general causation issues call into question the plaintiffs' ability to connect the alleged exposure to the claimed injuries, you will want to challenge such claims as quickly and efficiently as possible and avoid awaiting an outcome at trial. Counsel for the plaintiffs, of course, must master and respond to such challenges.

To these ends, this article addresses the basic contours of Cottle orders in California state court. Cottle orders are case management orders fashioned by California courts requiring plaintiffs to submit prima facie evidence of certain elements of their claims (usually general or specific causation) to demonstrate their viability or face exclusion of evidence at trial. Such orders are similar in certain respects to "Lone Pine orders" used in federal courts, though their content and timing is generally more restricted under California law. See Lore v. Lone Pine Corp., No. L-33606-85, 1986 WL 637507 (N.J. Super. Ct. Nov. 18, 1986).

Cottle v. Superior Court (1992)
Cottle orders derive their name from Cottle v. Superior Court, 5 Cal. Rptr. 2d 882 (Ct. App. 1992), a toxic tort case in which the trial court issued a case management order requiring certain plaintiffs to make a prima facie showing of their claims for physical injuries. The case management order stated:

Each plaintiff shall file and serve a statement establishing a prima facie claim for personal injury and/or property damage. 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.

Id. at 1373. In response, the plaintiffs contended that it was "virtually impossible" to determine how each plaintiff was exposed and to link the manner of exposure to the symptoms manifested. The plaintiffs also conceded 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." Id. (alteration in original). Because the plaintiffs could not present even the most basic substantiation for their claims, the trial court found that the plaintiffs could not establish a prima facie case to sustain their personal injury claims.

On appeal, the appellate court affirmed the trial court's case management order, holding that the order was justified in light of (1) the trial court's "broad and inherent power" to control matters before it; (2) designation of the case as "complex," rendering it subject to specialized case management procedures; and (3) the Trial Court Delay Reduction Act (TCDRA), which afforded "wide latitude" in developing procedures to reduce litigation delays. Observing how the plaintiffs had received multiple opportunities to substantiate their claims, the appellate court commented favorably on the timing of the order, issued just before trial, reasoning that "[h]ad 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." Id. at 1380. The appellate court also expressly limited its holding to cases designated "complex" so that trial courts could "manage and control the case," declining to extend the ruling beyond such cases. The appellate court also left open the circumstances when such orders might be issued, concluding it was "not possible to set forth precise guidelines as to when such an order can be issued or what other kinds of procedure can be used," but the court instructed that the "totality of the circumstances" should be considered in deciding how to manage a particular case. Id.

Notwithstanding the affirmance, one appellate judge issued a strongly worded dissent. The dissent rejected the majority's reasoning that the trial court's case management order had been justified in light of its inherent powers and its special authority when hearing cases designated "complex." The dissent argued that resort to inherent powers had been recognized in past cases only "because of the absence of any statute or rule governing the situation." Id. at 1391 (Johnson, J., dissenting). Here, the dissent reasoned, there "was no statutory void," and the trial court's order amounted to an improper "quasi-summary judgment" procedure, ignoring the protections built into the summary judgment statute such as placing the initial burden of proving lack of any triable issues on defendants seeking dismissal. Id. at 1393. The trial court's order further lacked authority under the standards governing "complex" cases in California based on an analysis of certain authorities underlying those standards. The dissent's arguments, especially that the trial court's order ran afoul of the summary judgment statute, remain persistent criticisms of Cottle.

Subsequent Case Law Following Cottle
Since the decision in Cottle, several California appellate courts have identified certain contours for using Cottle orders in complex litigation.

Hernandez v. Superior Court (2003). In Hernandez v. Superior Court, 4 Cal. Rptr. 3d 883 (Ct. App. 2003), several plaintiffs brought wrongful death claims due to exposure to toxic materials. The trial court issued a case management order requiring the plaintiffs to unilaterally disclose, via declaration and early in the litigation, their experts and their experts' opinions to establish a prima facie claim of exposure and causation. The order also required each plaintiff to identify the name of each product, equipment, or substance causing injury; the nature of injury; the date of exposure; the manner of exposure; and the identity of each medical expert supporting the plaintiffs' claims. The plaintiffs challenged the order, arguing it exceeded the trial court's authority to formulate procedural rules for managing complex litigation.

On appeal, the appellate court clarified the authority of courts to impose Cottle orders. First, the court noted that in California, courts have inherent power "to adopt any suitable method of practice, both in ordinary actions and special proceedings." Id. at 893. However, such inherent authority may only be exercised "if the procedure is not specified by statute or by rules adopted by the Judicial Council." Id. Because the California statute governing expert discovery required a mutual and simultaneous exchange of expert disclosures, the appellate court found that the trial court had exceeded its inherent power in ordering the plaintiffs to unilaterally disclose their expert witnesses. Though it struck the portion of the trial court's order requiring unilateral and early expert disclosures from the plaintiffs, Hernandez upheld the order's other provisions, including its demand that the plaintiffs provide the factual underpinnings for their exposure and causation claims.

The Hernandez court also distinguished its decision from Cottle. First, the court highlighted the factual differences between the cases, observing that "[t]he question of whether a trial court may order an early, unilateral exchange of experts was not considered by the [Cottle] court," meaning "its opinion is therefore not authority on that issue." Id. at 896. Second, the court noted the different timing at issue in Hernandez, where the trial court's order that the plaintiffs establish a prima facie case of causation came "before discovery was complete and before a trial date had been set." Id. However, the Hernandez court declined to rule on the timeliness of the court's order, because "the prima facie showing was to be made with the declarations of experts, and we have already held that part of the order to be invalid." Id.

In sum, Hernandez affirmed the trial courts' inherent authority to manage cases through appropriate case management orders, but such orders cannot conflict with existing statutes. In particular, Hernandez narrowed the scope of information a trial court can demand from plaintiffs through Cottle orders—precluding unilateral and early expert disclosures—and cautioned against issuing such orders before discovery had closed and a trial date had been set. Yet, Hernandez also acknowledged the benefits of such orders in speeding up otherwise protracted proceedings, recognizing that such orders can "achieve in short order" the release of information that plaintiffs would have to provide anyway.

Lockheed v. Continental (2005). In Lockheed Corp. v. Continental Insurance Co., 35 Cal. Rptr. 3d 799 (Ct. App. 2005), disapproved on other grounds by State v. Allstate Insurance Co., 201 P.3d 1147, 1167 n.11 (Cal. 2009), an aircraft company brought suit against an insurer seeking coverage under various policies for pollution-related liability. Phase III of the litigation was set for a jury trial on Lockheed's indemnity claims; however, prior to Phase III, the court conducted a Cottle hearing to evaluate the claims.

The appellate court noted that the Cottle decision permits a trial court to "use its inherent powers to manage complex litigation by ordering the exclusion of evidence if the plaintiff is unable to establish a prima facie case prior to the start of trial." Id. at 211–12. The court likened Cottle hearings to a hearing on a nonsuit motion in that "the trial court may not weigh the evidence or consider the credibility of witnesses, but must accept as true the evidence most favorable to the plaintiff, indulging every legitimate inference in the plaintiff's favor." Id. at 212.

Adopting a standard of appellate review for Cottle orders, the court noted that "[w]e apply the same rules in our review of the court's assessment of the evidence presented in connection with the Cottle proceedings" as when evaluating a motion for nonsuit. Id. at 817–18. The court observed that, "[o]n review, a judgment of nonsuit is not reversible if the plaintiffs' proof raises nothing more than speculation, suspicion, or conjecture"; whereas, reversal would be warranted if there is some substance to the plaintiff's evidence "upon which reasonable minds could differ." Id. at 817. The court then held that Lockheed had not met this burden, concluding that "even crediting all of the evidence Lockheed submitted, it was not enough to prove its case at trial. Pursuant to Cottle, the trial court was justified in excluding the evidence." Id. at 823 (citation omitted).

Lockheed affirmed the inherent power of trial courts to fashion case management orders requiring plaintiffs to present a prima facie showing to sustain their claims. However, when evaluating evidence in a Cottle proceeding, the trial court may not weigh it or assess the credibility of witnesses and must accept as true the evidence most favorable to the plaintiff. Only if the plaintiff's proof fails to meet this low bar is exclusion proper.

Alexander v. Exxon Mobil (2013). In Alexander v. Exxon Mobile, 162 Cal. Rptr. 3d 617 (Ct. App. 2013), a group of plaintiffs sued for injuries sustained while living in low-income housing built on a former oil storage facility. The trial court issued a case management order requiring the plaintiffs to submit offers of proof with their amended complaint "regarding each and every plaintiff . . . showing, among other things: where they lived during the relevant time period, . . . the exact factual circumstances in which each person learned about the contamination, whether that person has experienced any physical or psychological injury. If they haven't, what medical evidence corroborates their fear [of developing cancer]." Id. at 624 (alteration in original) (internal quotation marks omitted). The trial court ordered each plaintiff to provide such information in individual "Cottle declarations," which the plaintiffs subsequently submitted with their amended complaint.

The Alexander court did not reject the trial court's Cottle order. However, echoing concerns raised by the court in Hernandez, the appellate court expressed "significant concerns" about permitting such an order at such an early stage in the case. The court also cited an absence of authority approving Cottle-type procedures at the pleadings stage, but it nonetheless accepted the trial court's order because "plaintiffs have not raised any issue regarding the trial court's 'Cottle' order. We will therefore proceed as if the order were valid." Id. at 625 n.3.

As one of the most recent appellate considerations of Cottle orders, Alexander is instructive on several fronts. First, it emphasizes that the timing of Cottle orders continues to play a significant role in their reception on appeal. Such orders are more likely to be deemed valid where discovery has been completed and the case set for trial than at an earlier stage. Second, the plaintiffs' response may play a significant role in determining the trial court's appetite for imposing such an order, as well as the appellate court's appetite for upholding it. Plaintiffs who do not oppose such orders risk waiving the ability to challenge them on appeal. On the other hand, defendants who press for and obtain Cottle orders too early in a case face a high risk of having any resulting gains reversed. Thus, there may be advantages for both parties in cooperating to fashion joint proposals that permit the information that otherwise would be sought in a Cottle order to be provided without forcing the actual entry of such an order.

Analyzing Cottle Orders under California Law
The above precedents, while representative and not exhaustive, highlight several important factors to consider when contemplating use of a Cottle order or a response thereto. First, your case likely should be designated "complex" under California procedure. While full discussion of the criteria and considerations underlying complex designation is beyond the scope of this article, most multiplaintiff products liability or environmental tort matters likely would qualify. The court in the original Cottle decision limited its holding expressly to such cases. Judges in complex cases generally are assigned for all purposes through trial and are given more latitude to devise case management orders to streamline the case and conserve judicial and party resources. Although all civil courts have inherent administrative powers to control and streamline litigation, judges in complex cases may possess valuable familiarity with the case as well as access to specialized case management tools, including Cottle orders.

Second, a party working with a proposed Cottle order should evaluate carefully the timing and content of the proposed order. Such orders are more likely to be accepted and upheld on appeal when there has been significant discovery on the issues addressed and when a trial date has been set. One potential mechanism for moving up the timing of a Cottle order is the status of related proceedings in other jurisdictions. In mature litigation involving the same products, significant discovery may have taken place in parallel or predecessor litigation in the other venues (MDL, sister state court actions, etc.). Adopting existing discovery may permit a party to seek a Cottle order faster. Also, when fashioning a proposed Cottle order, defendants should focus on requesting information that (1) reasonably should be in the possession of the other party (e.g., medical records of plaintiffs identifying specific injury, records confirming exposure); (2) is easily obtainable (e.g., certification by a treating or consulting doctor); or (3) has been generated previously in either the present or predecessor/parallel litigation (e.g., already produced records or other materials).

Third, any proposed Cottle order should avoid violating existing statutory requirements. A prime example is mandating plaintiffs to disclose their experts' identities and opinions before the regular exchange of expert discovery authorized under the California Code of Civil Procedure. The court in complex cases has wide latitude to structure the case but cannot contravene statutory requirements.

Cottle orders represent a practical tool for disposing of facially defective claims, particularly those lacking causation, with potential cost and resource savings for both parties and the courts. However, effective use of such orders requires respecting both their strengths and limitations.

Keywords: litigation, products liability, Cottle, causation, civil procedure, complex litigation

Copyright © 2018, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).