California Court of Appeal, Ng v. Super. Ct., Docket G064257M

Medical Malpractice

 

Survival Claim

 

Wrongful Death Claim

 

Personal Injury

 

Noneconomic Damages

 

Motion to Strike

 

Motion for Leave to Amend

 

Writ of Prohibition

 

Writ of Mandate

 

California Law

 

 

 

In this case for medical malpractice and wrongful death, plaintiff Joely Ng (Ng) and defendant Los Alamitos Medical Center, Inc. (the Medical Center), dispute whether recent amendments to the cap on noneconomic damages (Civ. Code, § 3333.2) under the Medical Injury Compensation Reform Act of 1975 (MICRA) and to the availability of noneconomic damages in survival actions (Code Civ. Proc., § 377.34) permit Ng to recover noneconomic damages under one or two MICRA caps. In this petition, Ng seeks a writ of prohibition or mandate directing respondent court to vacate its May 24, 2024, order granting the Medical Center’s motion to strike portions of Ng’s complaint that allege her entitlement to seek two MICRA caps. We conclude Ng’s claims are subject to two separate MICRA caps. Accordingly, we grant the petition and direct the court to vacate its order and enter a new and different order denying the motion.

 

 

(…) The complaint alleges two causes of action against all defendants: (1) wrongful death, in Ng’s individual capacity; and (2) medical malpractice, in Ng’s capacity as successor in interest to the Decedent (the survival claim). In addition to economic damages, Ng sought noneconomic damages for each claim: (1) for the wrongful death claim, damages for the loss of the Decedent’s love, companionship, comfort, care, assistance, protection, affection, society, and moral support, up to the cap allowed in Civil Code section 3333.2; and (2) for the survival claim, damages for the Decedent’s pre-death pain and suffering, up to the cap allowed in Code of Civil Procedure section 377.34, subdivision (b).

 

 

Objecting to Ng’s request for two separate caps for noneconomic damages, the Medical Center filed a motion to strike the following language from the complaint (at paragraph 20 and repeated verbatim in the prayer): “This is separate, apart, and in addition to the general damages sought by Kenneth Ng’s widow in the first cause of action. (See Keys v. Alta Bates Summit Medical Center (2015) 235 Cal.App.4th 484, 488; Atkins v. Strayhorn (1990) 223 Cal.App.3d 1380.)” Although the Medical Center agrees that Ng is entitled to seek noneconomic damages for both claims, it contends those damages are subject to one MICRA cap. In other words, the Medical Center interprets the relevant statutes as prohibiting Ng from recovering two separate noneconomic damages caps, one for each claim.

 

 

Respondent court granted the motion. The court reasoned that because “the wrongful death claim is not separate and distinct from a medical negligence claim, it cannot be . . . subject to a separate MICRA cap.” The court, however, “noted that while the MICRA cap affects the final judgment, it does not have any impact on the jury’s verdict itself or the amount determined to be plaintiff’s actual noneconomic losses.” Although the court denied leave to amend, it did so “without prejudice to plaintiff bringing a motion for leave to amend to assert the two claims as separate and distinct for purposes of the MICRA cap, should plaintiff discover and allege facts that support a finding the wrongful death claim is separate and distinct from the medical negligence claim.”

 

 

A trial court may “strike out any irrelevant, false, or improper matter inserted in any pleading” and “all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (§ 436, subds. (a), (b).) Generally, we review a ruling on a motion to strike for abuse of discretion. (Cal-Western Business Services, Inc. v. Corning Capital Group (2013) 221 Cal.App.4th 304, 309.) But where, as here, the ruling concerns “the proper interpretation of a statute, and its application to undisputed facts,” it is a question of law which we review de novo. (Ibid.)

 

 

At issue here is whether the recent amendment to Code of Civil Procedure section 377.34, which authorizes a decedent’s personal representative or successor in interest to recover noneconomic damages, means a plaintiff can seek two MICRA cap awards (one for himself or herself and one for the decedent) under Civil Code section 3333.2. We conclude it does. Because a wrongful death claim and a survival claim—even when premised on the same alleged medical malpractice—are separate and distinct claims, a plaintiff suing for both claims can seek to recover two MICRA caps.

 

 

Ng’s action, filed in 2023, is subject to the recent amendments to these statutes. As relevant here, effective January 1, 2022, subdivision (b) was added to section 377.34 of the Code of Civil Procedure to allow for the recovery of damages for a decedent’s “pain, suffering, or disfigurement” in survival actions “filed on or after January 1, 2022, and before January 1, 2026.” (Stats. 2021, ch. 448, § 1.) It also provided that “nothing in this section alters Section 3333.2 of the Civil Code.” (Code Civ. Proc., § 377.34, subd. (e).) Effective January 1, 2023, Civil Code section 3333.2 was amended to, among other things, increase the $250,000 cap on noneconomic damages. (Id., § 3333.2, subds. (a)–(c) [$350,000 in medical malpractice cases not involving wrongful death, $500,000 in wrongful death cases, with annual increases]; Stats. 2022, ch. 17, § 3.) These amendments raised the question of whether a survival claim was subject to a separate MICRA cap.

 

 

A survival claim (§ 377.30) is “a separate and distinct cause of action which belonged to the decedent before death but, by statute, survives that event. [Citation.] The survival statutes do not create a cause of action. Rather, ‘they merely prevent the abatement of the cause of action of the injured person, and provide for its enforcement by or against the personal representative of the deceased.’” (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1264 (Quiroz).) In contrast, a wrongful death claim (§ 377.60) compensates the heirs of the decedent “for the loss of companionship and for other losses suffered as a result of the decedent’s death.” (Quiroz, supra, 140 Cal.App.4th at p. 1263.) Such “damages . . . are in the nature of compensation for personal injury to the heir” and “include (1) the loss of the decedent’s financial support, services, training and advice, and (2) the pecuniary value of the decedent’s society and companionship.” (Id. at p. 1264.) “Unlike some jurisdictions wherein wrongful death actions are derivative,” California’s wrongful death statute “‘creates a new cause of action in favor of the heirs as beneficiaries, based upon their own independent pecuniary injury suffered by loss of a relative, and distinct from any the deceased might have maintained had he survived.’” (Horwich v. Superior Court (1999) 21 Cal.4th 272, 283.)

 

 

Crucially, a wrongful death claim may not include any damages recoverable as part of a survival claim, and the claims may be tried separately. (§ 377.61; Wilson v. John Crane, Inc. (2000) 81 Cal.App.4th 847, 861.) For these reasons, we conclude respondent court erred in finding the claims were “not separate and distinct” and subject to one MICRA cap.

 

 

DISPOSITION

The petition is granted. Let a peremptory writ of mandate issue, directing the trial court to vacate its May 24, 2024, order granting the Medical Center’s motion to strike and to issue a new and different order denying the motion. Petitioner to recover costs of this proceeding. (Cal. Rules of Court, rule 8.493(a)(1)(A).)

 

 

 

 

 

(California Court of Appeal, Feb 20, 2025, Ng v. Super. Ct., Docket G064257M, Certified for Publication)

California Court of Appeal, Yaffee v. Skeen, Docket No. C097746

Hospital Lien Act (HLA)

 

Lien Upon the Damages Recovered

 

Workers’ Compensation

 

California Law

 

 

 

 

With the HLA, “the Legislature established one mechanism through which hospitals that provide emergency services can recoup costs from an entity other than a patient’s health care service plan.” (Dameron Hospital Assn. v. AAA Northern California, Nevada & Utah Ins. Exchange (2022) 77 Cal.App.5th 971, 985.) Section 3045.1 states, every person or entity “maintaining a hospital licensed under the laws of this state which furnishes emergency and ongoing medical or other services to any person injured by reason of an accident or negligent or other wrongful act not covered by workers’ compensation shall, if the person has a claim against another for damages on account of his or her injuries, have a lien upon the damages recovered, or to be recovered, by the person... to the extent of the amount of the reasonable and necessary charges of the hospital and any hospital affiliated health facility, as defined in Section 1250 of the Health and Safety Code, in which services are provided for the treatment, care, and maintenance of the person in the hospital or health facility affiliated with the hospital resulting from that accident or negligent or other wrongful act.”

 

 

When a hospital receives payment from a patient and his health insurer at a reduced negotiated rate under a prior agreement in which the hospital agreed to accept that payment as “payment in full” for its services, the hospital cannot assert a lien under the HLA to “recover the difference between its usual and customary charges and the amount received from the patient and his insurer.” (Parnell, supra, 35 Cal.4th at p. 598.) (Parnell v. Adventist Health System/West (2005) 35 Cal.4th 595, 604.) However if, “hospitals wish to preserve their right to recover the difference between usual and customary charges and the negotiated rate through a lien under the HLA, they are free to contract for this right” when negotiating their contracts with insurers. (Dameron Hospital Assn. v. AAA Northern California, Nevada & Utah Ins. Exchange (2014) 229 Cal.App.4th 549, 554.)

 

 

We agree with defendants that the plain language of section 3045.1 requires a hospital to provide emergency services before the hospital can assert a lien under the HLA, and to the extent the trial court found otherwise, it erred.

 

 

(…) Thus, the Legislature contemplated the amendments would cover nonemergency services that flow from the provision of emergency services when patients remain in the hospital.

 

 

(…) The issue in Parnell was whether a hospital could assert a lien under the HLA to recover the difference between its usual and customary charges and the amount received from a patient and its insurer when the hospital had agreed to accept the amount the patient and insurer paid as “payment in full” for its services. (Id. at p.598.) Our Supreme Court concluded the hospital could not. (Ibid.)

 

 

 

 

 

(California Court of Appeal, Dec. 17, 2024, Yaffee v. Skeen, Docket No. C097746, Certified for Publication)

 

 

 

California Court of Appeal, Yaffee v. Skeen, Docket No. C097746

Personal Injury Complaint

 

Complaint in Intervention

 

Damages for Past Medical Expenses

 

Collateral Source Rule

 

Future Non-Economic Damages

 

California Law

 

 

 

 

Appeal from a judgment of the Superior Court of Sacramento County. Reversed in part and affirmed in part.

 

 

A jury awarded plaintiff, David Yaffee, $3,299,455 in damages for past and future economic earnings and noneconomic loss for injuries he received when his vehicle was hit from behind in 2015 by a truck driven by defendant Joseph Skeen while Skeen was driving for his employer KLS Transportation, Inc. (KLS). National Liability & Fire Insurance Company (National) appeared on behalf of KLS in the litigation. We hereafter refer to National and Skeen as defendants.

 

 

Trial Court Proceedings: Plaintiff filed a personal injury complaint against Skeen and KLS. National filed a complaint in intervention as KLS’s liability insurance carrier. The court considered various motions in limine the parties filed prior to trial.

 

 

A plaintiff seeking compensatory damages for the cost of past medical services must establish that the charges for those services were reasonable. (Moore v. Mercer (2016) 4 Cal.App.5th 424, 436-437 (Moore); Calhoun v. Hildebrandt (1964) 230 Cal.App.2d 70, 73.)

 

 

A plaintiff must satisfy a two-step burden to prove the reasonableness of charges for past medical services. (Moore, supra, 4 Cal.App.5th at pp. 436-437.) “First, plaintiff must prove that she actually incurred the medical expenses and the amount of the patient’s liability for the expenses caps her potential recovery. ... Second, plaintiff must prove the reasonable value of the medical services but is entitled to no more than the expenses the patient actually incurred.” (Id. at p. 437.) In Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal. 4th541(Howell) our Supreme Court considered the proper measure for calculating past medical expenses of a plaintiff with private health insurance and held, “that an injured plaintiff whose medical expenses are paid through private insurance may recover as economic damages no more than the amounts paid by the plaintiff or his or her insurer for the medical services received or still owing at the time of trial.” (Id. at p.566.)

 

 

The collateral source rule precludes deduction of compensation the plaintiff has received from a source independent of the tortfeasor to reduce recoverable damages and evidence of such payments is inadmissible for that purpose. (Howell, supra, 52 Cal.4th at pp. 548, 552.)

 

 

An injured party may collect damages for detriment “certain to result in the future.” (§ 3283.) California decisional law has noted that, “the ‘requirement of certainty... cannot be strictly applied where prospective damages are sought, because probabilities are really the basis for the award.’ (6 Witkin, Summary of Cal. Law, supra, Torts, §1552, p.1027.) Still, ‘“‘there must be evidence to show such a degree of probability of their occurring as amounts to a reasonable certainty that they will result from the original injury.’[Citations.]”’ (Bellman v. San Francisco H. S. Dist. (1938) 11 Cal.2d 576, 588.)” (Behr v. Redmond (2011) 193 Cal.App.4th 517, 533.) With respect to future medical damages, an injured plaintiff “is entitled to recover the reasonable value of medical services that are reasonably certain to be necessary in the future.” (Cuevas v. Contra Costa County (2017) 11 Cal.App.5th 163, 182; see also Bermudez, supra, 237 Cal.App.4th at p.1326 [stating a jury instruction according to this principle was correct].)

 

 

Future Non-Economic Damages: “‘“Non-economic” damages are such “subjective, non-monetary losses as pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation.”’ [Citation.] ‘To recover future damages, a plaintiff must prove that his or her detriment is reasonably certain to result in the future.’ [Citation.]” (Audish v. Macias (2024) 102 Cal.App.5^th 740, 752.) “‘While there is no clearly established definition of “reasonable certainty”, evidence of future detriment has been held sufficient based on expert medical opinion which considered the plaintiff’s particular circumstances and the expert’s experience with similar cases.’ [Citation.] However, expert testimony is not required in all cases. For example, it is unnecessary if the injury is such that the jury could conclude, based on all the evidence and relying upon its own experiences and common knowledge, that the future harm is reasonably certain to occur. ... Courts have affirmed a jury’s finding of future damages based on the plaintiff’s testimony of continued pain and suffering at the time of trial.” (Colucci v. T-Mobile USA, Inc. (2020) 48 Cal.App.5th 442, 460.) “The amount of damages to be awarded is a question of fact committed, first to the discretion of the trier of fact, and then to the discretion of the trial court on a motion for new trial.” (Fernandez v. Jimenez (2019) 40 Cal.App.5th 482, 490.) We give great weight to the jury and trial court’s determinations. (Ibid.) “The amount to be awarded is ‘a matter on which there legitimately may be a wide difference of opinion.’” (Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 508.) We will interfere if the verdict is so large that, “at first blush, it shocks the conscience and suggests passion, prejudice or corruption on the part of the jury.” (Id. at p.507.)

 

 

 

 

(California Court of Appeal, Dec. 17, 2024, Yaffee v. Skeen, Docket No. C097746, Certified for Publication)

California Court of Appeal, Gutierrez v. Tostado, Docket No. H049983

Personal Injury Claims

 

Statute of Limitations

 

Personal Injury Action for Negligence: Two Years

 

Suits Against Health Care Providers for Professional Negligence: One Year

 

Does MICRA Applies Where the Plaintiff Is Injured During the Provision of Professional Services, as a Result of Those Services, But Was Not the Recipient of the Services?

 

(Action Against an Attorney for a Wrongful Act or Omission, Other Than for Actual Fraud: One Year)

 

Claims Time-Barred

 

 

Procedure:

 

Notice of Appeal

 

Appeal premature

 

Order to Show Cause

 

Dismissal

 

Judgment Filed

 

Notice of Submission of Judgment

 

Order to Show Cause Discharged

 

 

California Law

 

 

 

(Santa Clara County

Super. Ct. No. 20CV361400)

 

 

Francisco Gutierrez appeals from a judgment entered after the trial court granted summary judgment in favor of respondents Uriel Tostado and ProTransport-1, LLC, on the basis that Gutierrez’s personal injury claims were time-barred under the Medical Injury Compensation Reform Act (MICRA). Gutierrez contends that the trial court erred when it found MICRA’s one-year statute of limitations for professional negligence applicable. We conclude that because Tostado was a medical provider rendering professional services at the time the alleged negligence occurred, MICRA’s statute of limitations bars Gutierrez’s claims. We thus affirm the judgment.

 

 

Gutierrez was driving on Interstate 280 when he was forced to stop. Shortly after Gutierrez stopped, Tostado, who was driving an ambulance, rear-ended him.  At the time of the accident, Tostado was an emergency medical technician (EMT) employed by ProTransport-1, LLC and was transporting a patient from one medical facility to another. While Tostado drove, his partner attended to the patient in the rear of the ambulance.

 

 

Gutierrez was injured in the collision and visited a chiropractor for treatment within ten days of the incident. Almost two years later, Gutierrez filed a complaint against Tostado and ProTransport-1, alleging various personal injury claims. The respondents filed a motion for summary judgment on the sole ground that Gutierrez’s claims were time barred under MICRA’s one-year statute of limitations. The trial court agreed that MICRA applied and granted the motion. The trial court concluded that because Tostado was transporting a patient at the time of the accident, he was rendering professional services. The trial court held that Gutierrez’s claims against the defendants were time-barred under the statute. Gutierrez timely appealed from the judgment.

 

 

(Gutierrez filed his notice of appeal on April 19, 2022, after the trial court had granted summary judgment in favor of the defendants but prior to judgment being entered. We issued an order to show cause as to why Gutierrez’s appeal should not be dismissed as premature. After the trial court filed the judgment and Gutierrez submitted a notice of submission of judgment, we discharged the order to show cause and deemed Gutierrez’s notice of appeal filed on July 11, 2022, the date judgment was entered. Fn. 1).

 

 

In this case, the trial court granted summary judgment based on its statutory construction of MICRA. We review issues of statutory construction de novo. (Aldana v. Stillwagon (2016) 2 Cal.App.5th 1, 6 (Aldana).)

 

 

The trial court granted summary judgment on the sole ground that Gutierrez’s action was barred by the statute of limitations set forth in MICRA. Gutierrez contends that the trial court erred in dismissing his claims because MICRA does not apply to his personal injury claims. A personal injury action for negligence must generally be filed within two years of the date on which the injury occurred. (Code Civ. Proc., § 335.1.)

 

 

However, suits against health care providers for professional negligence must be filed within one year. (§ 340.5.) Gutierrez argues that the one-year statute of limitations does not apply to his action because his claims are for general negligence not professional negligence, and the duty that Tostado violated by crashing into his car was a duty of care generally owed to the public, not a professional duty owed by a medical provider to a patient.

 

 

MICRA defines professional negligence as “a negligent act or omission to act by a health care provider in the rendering of professional services.” (§ 340.5, subd. (2).) The parties do not dispute that an EMT transporting a patient in an ambulance is providing medical care to the patient for purposes of the statute. (Lopez, supra, 89 Cal.App.5th at p. 347; Canister v. Emergency Ambulance Service, Inc. (2008) 160 Cal.App.4th 388, 407 (Canister).) However, only actions “alleging injury suffered as a result of. . .the provision of medical care to patients” are covered. (Flores v. Presbyterian Intercommunity Hospital (2016) 63 Cal.4th 75, 88, (Flores).) In this appeal we must decide whether a driver in a separate vehicle, injured in a collision with an ambulance transporting a patient, was injured as a result of the provision of medical care, such that MICRA’s one year statute applies. Gutierrez urges us to find that any injury here was caused by ordinary negligence. He argues that where a medical provider owes no professional duty to the plaintiff and allegedly breaches only a duty owed to the general public, a claim for personal injuries should be governed by the two-year statute of limitations applicable to ordinary negligence. Conversely, respondent suggests that the critical question is not whether defendant owed plaintiff a professional duty, but simply whether plaintiff was injured as a result of the provision of medical services by defendant; in other words, was plaintiff’s injury a foreseeable consequence of defendant’s act of providing medical care?

 

 

The Supreme Court in Flores examined what it means for a health care provider to render professional services under MICRA. There, a hospital patient sued the hospital for negligence after the latch on her bedrail broke, causing her to fall and injure herself. (Flores, supra, 63 Cal.4th at p. 89.) The court considered the difference between regular negligence arising out of the duty owed to the general public, the negligence in the maintenance of equipment and premises that are merely convenient for, or incidental to, the provision of medical care to a patient, and the negligence that arises from the duty owed to patients in the rendering of professional services. (Id. at pp. 88-89.) The court found that “Even those parts of a hospital dedicated primarily to patient care typically contain numerous items of furniture and equipment—tables, televisions, toilets, and so on—that are provided primarily for the comfort and convenience of patients and visitors, but generally play no part in the patient’s medical diagnosis or treatment. Although a defect in such equipment may injure patients as well as visitors or staff, a hospital’s general duty to keep such items in good repair generally overlaps with the ‘obligations that all persons subject to California’s laws have.’ [Citation.]” (Ibid.)

 

 

(Lee v. Hanley (2015) 61 Cal.4th 1225, 1237 (Lee): In Lee, the Court considered “section 340.5’s neighboring provision imposing a one-year statute of limitations for ‘an action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services.’ [Citation.]” (Flores, supra, 63 Cal.4th at p. 87.) The court decided «that section 340.6(a) is properly read to apply to claims that ‘depend on proof that an attorney violated a professional obligation in the course of providing professional services.’ [Citation.]” (Ibid.) Explaining that the statute excludes services unrelated to the law or matters that entail violations of professional obligations that may overlap with obligations that all persons have, the court emphasized that the statute applies when an attorney violates a professional obligation as opposed to some generally applicable nonprofessional obligation. (Id. at pp. 87-88.)

 

 

(…) The court concluded that the hospital’s alleged negligence in the maintenance of plaintiff’s bedrail did not overlap with its general duty owed to the public because it was “integrally related to plaintiff’s medical diagnosis and treatment,” and was therefore professional negligence encompassed by MICRA. (Id. at p. 89.)

 

 

Flores and Lee both considered whether the injury to the patient or client was caused by negligence in the provision of professional services or whether the injury was the result of the breach of some broader overlapping duty owed to the public. Gutierrez asks us to conclude that the contrast drawn in those cases, between a professional duty and the general duty owed to the public, means that MICRA only applies where the defendant owes a professional duty to the plaintiff. However, neither Flores nor Lee considered whether MICRA applies where the plaintiff is injured during the provision of professional services, as a result of those services, but was not the recipient of the services. In both of those cases, the plaintiff was either the client or the patient. Multiple courts have considered injuries to third parties who were not patients and have concluded that MICRA applied to their claims.

 

 

(…) The Flores court concluded that by providing the bedrail the hospital was providing medical care, not just a convenience incidental to care. The question before the Flores court was what duty was owed to its patient, not to whom their professional duty of care extended.

 

 

(…) Because Gutierrez was not the recipient of the medical care, the question here is different from the one raised in Flores. It is not whether the injuries alleged were the result of general or professional negligence.  Instead, the question here is whether an injury to a third party, who is not a patient, is subject to MICRA’s statute of limitations because the injury occurred during, and as a result of, the provision of medical care by a medical provider.

 

 

(…) Because neither Flores nor Lee considered MICRA’s applicability to nonpatients, we must agree with Canister and Lopez and conclude that MICRA is not limited to suits by patients or to recipients of medical services as long as the plaintiff is injured due to negligence in the rendering of professional services and his injuries were foreseeable.

 

 

The provision of ambulance services involves driving on the road, sometimes at a very high speed. Getting a patient to the hospital quickly is often as integral to the provision of this medical service as performing CPR or administering medication intravenously. It is, therefore, entirely foreseeable that collisions may occur where third parties are injured. The fact that Tostado was not driving quickly here or that Gutierrez was in a separate vehicle rather than in the ambulance does not change the analysis or our conclusion that third parties injured in a collision with an ambulance when it is rendering medical care are subject to MICRA.

 

 

(…) Fundamental intent of MICRA to “reduce the cost of medical malpractice insurance ‘by limiting the amount and timing of recovery in cases of professional negligence.’ [Citations.]” (Flores, supra, 63 Cal.4th at p.81.)

 

 

Even though Tostado may owe a duty to the public to drive the ambulance safely when not in use for medical care, the injury to Gutierrez occurred while Tostado, a medical provider, was performing the integral function of transporting a patient by ambulance. The trial court correctly concluded that MICRA’s one-year statute of limitations applied to Gutierrez’s negligence claims.

 

 

 

 

 

(California Court of Appeal, Dec. 1^st, 2023, Gutierrez v. Tostado, Docket No. H049983, Certified for Publication)

 

 

Bristol-Myers Squibb Co. v. Super. Ct., S221038

Class action: Tort: Personal injury:

For claims of mass injuries stemming from a single product or event, plaintiffs often resort to the mechanism of the class action, which promotes efficiency and economy of litigation. (Crown, Cork & Seal Co. v. Parker (1983) 462 U.S. 345, 349.) But, unlike class actions in which common questions of law, fact, and proximate cause predominate among members of the plaintiff class, mass-tort actions for personal injury most often are not appropriate for class action certification. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1123.) As this court has previously recognized, the major elements in tort actions for personal injury — liability, causation, and damages — may vary widely from claim to claim, creating a wide disparity in claimants‘ damages and issues of defendant liability, proximate cause, liability of skilled intermediaries, comparative fault, informed consent, assumption of the risk and periods of limitation. (Ibid.)

Yet, because mass tort injuries may involve diverse injuries or harm not amenable to the efficiency and economy of a class action, they present special problems for the proper functioning of the courts and the fair, efficient, and speedy administration of justice. Without coordination, those who win the race to the courthouse and bankrupt a defendant early in the litigation process would recover but effectively shut out other potential plaintiffs from any recovery. (In re Exxon Valdez (9th Cir. 2000) 229 F.3d 790, 795-796.) Moreover, coordinated mass tort actions also avoid the possible unfairness of punishing a defendant over and over again for the same tortious conduct. (Id. at p. 796.)

(Cal. S.C., August 29, 2016, Bristol-Myers Squibb Co. v. Super. Ct.,  S221038, Cantil-Sakauye, C.J., Liu, Cuéllar, Kruger, JJ., concur., Werdegar, Chin, Corrigan, JJ., diss.).

Des prétentions communes à un grand nombre de demandeurs découlant d’un seul produit ou d’un seul événement sont souvent réglées par le mécanisme des actions de classe, qui impliquent efficience et économie de procédure. Cependant, au contraire des actions de classe dans le cadre desquelles prédominent des questions communes de droit, de fait et de causalité, les actions de classe délictuelles découlant de préjudices corporels ne sont le plus souvent pas appropriées pour obtenir une certification permettant l’ouverture de la procédure de classe.

Les éléments principaux qui se retrouvent dans une action délictuelle suite à un préjudice corporel – responsabilité, lien de causalité, dommage – peuvent considérablement varier d’une prétention à l’autre, de sorte que d’importantes disparités sont à attendre s’agissant du dommage, de la responsabilité du défendeur, de la causalité, de la responsabilité des intermédiaires qualifiés, de la faute comparative, du consentement éclairé, du transfert des risques, et de la prescription.

Ce type d’actions peut ainsi poser problème à l’aune des principes d’efficience et d’économicité d’une action de classe, mettant potentiellement en cause une administration de la justice équitable, efficiente et rapide. Sans coordination des procédures, les plus rapides à agir en justice, les premiers à provoquer la faillite du débiteur, seront indemnisés, mais empêcheront les défendeurs suivants de l’être également. Par ailleurs, une coordinations des actions de classe fondées sur un dommage corporel délictuel permet d’éviter la possible iniquité consistant à punir le défendeur à réitérées reprises pour une même conduite délictuelle.