California’s First District Court of Appeals has vacated a lower court’s order that rejected a request for an expedited trial in an asbestos personal injury case.
The plaintiffs, Mr. Gerald and Mrs. Judith Boyd, sought a trial within 120 days of October 31, but their request was denied. The appeals court upheld the plaintiffs’ request under the Code of Civil Procedure, Section 36, which mandates trial preference for claimants over the age of 70. Originally, the Boyds’ case would not reach trial until July, 2015; with the appeals court’s writ, the case will now be heard before March, 2015.
Mr. Boyd, who is 71 years old, has been diagnosed with mesothelioma, an asbestos-related type of cancer. Mesothelioma has an extremely high mortality rate; less than 10% of its victims survive for five years. His physician, Dr. Thierry M. Jahan, believes that Mr. Boyd has already had the disease for more than two years, which, according to Dr. Thierry, presents the possibility that Mr. Boyd would not survive beyond the end of March, 2015. This, coupled with the fact that Mr. Boyd is over 70, justified an expedited trial date.
“The declaration of Jahan is uncontradicted and establishes that there is a substantial medical doubt that Boyd will survive to the July 13, 2015 trial date that the court ordered,” said Justice Stuart R. Pollak in the appeals court’s opinion.
The Boyds’ personal injury case is against 15 defendants; of those, only three opposed the petition for an expedited trial. Those defendants argued that Mr. Boyd, despite his potentially fatal diagnosis, is still in good health. The appeals court refuted this argument, stating in its opinion that “there is no evidence that because Boyd is not yet debilitated, his life expectancy is lengthened. The facts remain that he has a terminal diagnosis of mesothelioma, [and] he is in stage III of that disease, in which rapid deterioration without progression to stage IV may occur.”
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