Preview
1
GABRIEL A. JACKSON (SBN 98119)
2 gjackson@goldbergsegalla.com
ELECTRONICALLY
PETER K. RENSTROM (SBN 148459)
3 prenstrom@goldbergsegalla.com F I L E D
TODD M. THACKER (SBN 199506) Superior Court of California,
County of San Francisco
4 tthacker@goldbergsegalla.com
STEPHEN L. JENKINS (SBN 235601) 01/28/2022
5 sjenkins@goldbergsagalla.com Clerk of the Court
BY: SANDRA SCHIRO
GOLDBERG SEGALLA LLP Deputy Clerk
6 611 Gateway Blvd., Suite 120
South San Francisco, CA 94080
7 Telephone: 415-432-6613
Facsimile: 415-432-6601
8
Attorneys for Defendant
9 COSCO FIRE PROTECTION, INC.
10
SUPERIOR COURT OF THE STATE OF CALIFORNIA
11
COUNTY OF SAN FRANCISCO
12
CAROL CHULICK, as Successor-in-Interest Case No. CGC-19-276757
13 to and as Wrongful Death Heir of JOHN
CHULICK, Deceased; and DEBORAH JOINT DEFENDANTS MEMORANDUM
14 HAGEN and JOLEEN HAGLER, as Wrongful OF POINTS AND AUTHORITIES IN
Death Heirs of JOHN CHULICK, Deceased, SUPPORT OF MOTION TO BIFURCATE
15 ON THE ISSUE OF WHETHER
Plaintiffs, PLAINTIFFS’ CLAIMS FOR SURVIVAL
16 DAMAGES ARE BARRED BY THE
v. APPLICABLE STATUTE OF
17 LIMITATIONS
RILEY POWER, INC., et al.,
18 [Filed concurrently with Notice; Declaration of
Defendants. Stephen L. Jenkins; Request for Judicial
19 Notice; and [Proposed] Order]
20 Date: February 28, 2022
Time: 9:30 AM
21 Dept: 502
Judge: The Honorable Jeffrey S. Ross
22
Action Filed: January 22, 2019
23 Trial Date: December 27, 2021
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JOINT DEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION
30 TO BIFURCATE ON THE ISSUE OF WHETHER PLAINTIFFS’ CLAIMS FOR SURVIVAL DAMAGES
ARE BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS
31 32289510.v1
1 I. INTRODUCTION
2 As part of their wrongful death complaint, Plaintiffs CAROL CHULICK, DEBORAH
3 HAGEN, and JOLEEN HAGLER (“Plaintiffs”) bring three separate survival causes of action.
4 However, as detailed more fully below, these survival claims are barred by the statutes of
5 limitations, including CCP §§ 340.1 and 366.1. Therefore, Defendant COSCO FIRE
6 PROTECTION, INC. (“Cosco) and defendants jointly (“Defendants”) are bringing this motion to
7 bifurcate in order to have the statute of limitation affirmative defenses tried first.
8 Bifurcating the issue will significantly streamline this case and allow it to proceed
9 efficiently at trial, because it will eliminate expert testimony and evidence on the cost and
10 reasonableness of decedent’s medical treatment prior to death and loss of income. Pursuant to Code
11 of Civil Procedure §597, the Court has discretion to try Defendants’ affirmative defenses unrelated
12 to the merits of the Plaintiffs’ claims in order to foster efficiency and avoid unnecessary expense.
13 Bifurcating will also prevent juror confusion as they will only need to hear expert testimony related
14 to Plaintiffs’ claims of asbestosis, pleural disease, and the appropriate wrongful death damages,
15 rather than testimony concerning decedent’ medical treatment or loss of income. Lastly, bifurcation
16 will prevent Defendants from being unduly prejudiced. If the statute of limitations issue as to
17 Plaintiffs’ survival claims is not bifurcated and the jury hears testimony related to these claims,
18 Defendants will be prejudiced as to the perceived extent of Plaintiffs’ actual damages if these three
19 claims are ultimately found to be time barred. Therefore, Defendants hereby request that the Court
20 exercise its discretion under CCP §597 and order that the trial in this matter proceed as follows:
21 Phase One: A bench trial to determine whether all of Plaintiffs’ survival claims are
22 barred by the statute of limitations pursuant to CCP §340.2 and 366.1 and in accordance with the
23 holdings of Darden v. General Motors Corp. (1995) 40 Cal. App. 4th 349 and Barr v. ACandS, Inc.
24 (1997) 57 Cal.App.4th 1038.
25 Phase Two: A jury trial on any of Plaintiffs’ remaining claims that are not disposed of
26 against Defendants.
27 The early resolution of the foregoing issues will best serve the interests of judicial efficiency
28 2
JOINT DEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION
30 TO BIFURCATE ON THE ISSUE OF WHETHER PLAINTIFFS’ CLAIMS FOR SURVIVAL DAMAGES
ARE BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS
31 32289510.v1
1 and economy by limiting the time and costs associated with a protracted complex trial and will
2 likewise promote settlement and resolution.
3 II. STATEMENT OF FACTS
4 Decedent first sought personal injury economic damages for his asbestosis and asbestos-
5 related pleural disease nearly 20 years ago, when he filed a personal injury action on February 22,
6 2002, against a number of defendants, including Does 1 through 800. (See Exhibit A to the
7 Declaration of Stephen L. Jenkins in Support of this Motion to Bifurcate). According to his 2002
8 Complaint, Decedent sought past medical expenses and loss of income damages specifically related
9 to his occupational exposures to asbestos and asbestos-containing products. His complaint stated
10 that, as a result of his exposure to asbestos, he suffered “severe and permanent injury . . ., including
11 but not limited to breathing difficulties, asbestosis and/or other lung damage.” According to the
12 complaint, Decedent had been diagnosed with asbestosis and asbestos-related pleural disease on or
13 about April 2001. On December 31, 2013, the 2002 case was dismissed by the Court in its entirety
14 after the last party resolved. (See Exhibit B to the Declaration of Stephen L. Jenkins).
15 John Chulick subsequently died on June 25, 2018. Over six months later, Plaintiffs filed
16 their Wrongful Death/Survival Complaint on January 22, 2019. Plaintiffs’ Complaint for Wrongful
17 Death contains three survival causes of action for John Chulick for the same disease processes:
18 asbestosis and asbestos-related pleural disease. (See Exhibit C to the Declaration of Stephen L.
19 Jenkins). In its answer to the 2019 complaint, Cosco asserts an affirmative defense that Plaintiffs’
20 survival claims are time-barred under the applicable statutes of limitations. (See Exhibit D to
21 Cosco’s Answer to Plaintiffs’ Complaint).
22 The purpose of bifurcating a trial is to avoid prejudice, promote convenience, and allow for
23 economic and efficient handling of the case. (Cal. Code Civ. Proc. § 1048(b)). A separate non-jury
24 trial on the issue of Defendants’ statute of limitations affirmative defenses as to Plaintiffs’ survival
25 claims – prior to a jury trial on Plaintiffs’ wrongful death action and damages – would promote
26 each of these purposes. This Court should bifurcate the issue for a more efficient trial. If the issue
27 is bifurcated and Plaintiffs’ survival claims are time barred, then jurors will not be forced to listen
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JOINT DEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION
30 TO BIFURCATE ON THE ISSUE OF WHETHER PLAINTIFFS’ CLAIMS FOR SURVIVAL DAMAGES
ARE BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS
31 32289510.v1
1 to extensive expert testimony related to Decedent’s medical expenses and loss of income
2 calculations. Further, jurors would not be confused by expert testimony related to these categories
3 of economic damages.
4 III. LEGAL ARGUMENT
5 A. The Court May Order Bifurcation and Separate Bench Trial to Prevent
Juror Confusion, in the Furtherance of Convenience, or to Avoid
6 Prejudice
7 This Court has ample authority to bifurcate trial to promote judicial economy and avoid
8 confusion and prejudice. Code of Civil Procedure §598 empowers the Court to order the trial of
9 any issue to precede the trial of any other issue in order to promote “the ends of justice, or the
10 economy and efficiency of handling the litigation.” (Code Civ. Proc. § 598.) Under Code of Civil
11 Procedure section 1048, the Court also has “broad” power to bifurcate trial “in the interests of
12 judicial economy” and to “avoid prejudice.” (Code Civ. Proc. § 1048; see also Grappo v. Coventry
13 Fin. Corp. (1991) 235 Cal.App.3d 496, 503-04 (bifurcating trial to address the “initial threshold
14 determination” as to ownership of the property at issue.) Evidence Code §320 also provides that
15 the Court has discretion to "regulate the order of proof." (Evid. Code § 320.)
16 “It has long been held that special defenses which abate or bar the claim of the plaintiff may
17 be tried before other issues, for a decision in the defendant’s favor may render unnecessary the
18 effort and expense of a complete trial.” (Cohn v. Bugas (1974) 42 Cal.App.3d 381, 389 [internal
19 citations omitted].) CCP §597 sets forth the framework for the statutory authority for the phase of
20 trial sought by Defendants. Specifically, §597 provides, in pertinent part:
21 When the answer pleads that the action is barred by the statute of limitations, or
by a prior judgment, or that another action is pending upon the same cause of
22 action, or sets up any other defense not involving the merits of the plaintiff’s cause
of action but constituting a bar or ground of abatement to the prosecution thereof,
23 the court may, either upon its own motion or upon the motion of any party, proceed
to the trial of the special defense or defenses before the trial of any other issue in
24 the case.
25 Likewise, the Court may “[w]hen the answer pleads that the action is barred by the statute
26 of limitations…or sets up any other defense not involving the merits of the plaintiff’s cause of
27 action but constituting a bar or ground of abatement to the prosecution thereof, the court may, either
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JOINT DEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION
30 TO BIFURCATE ON THE ISSUE OF WHETHER PLAINTIFFS’ CLAIMS FOR SURVIVAL DAMAGES
ARE BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS
31 32289510.v1
1 upon its own motion or upon the motion of any party, proceed to the trial of the special defense or
2 defenses before the trial of any other issue in the case…” (Code Civ. Proc., §597.) The Court has
3 broad discretion to order bifurcation under section 1048, and such an order is subject to reversal
4 only for manifest abuse of discretion. (Finley v. Sup. Ct. (2000) 80 Cal.App.4th 1153, 1162-63;
5 Grappo v. Coventry Fin. Corp. (1991) 235 Cal.App.3d 496, 504.) “The major objective of
6 bifurcated trials is to expedite and simplify the presentation of evidence.” (Foreman & Clark Corp.,
7 v. Fallon (1971) 3 Cal.3d 875, 888.)
8 Further, bifurcation of the statute of limitations is not uncommon. “Defenses based on the
9 statute of limitations are frequently bifurcated and tried separately from a plaintiff’s liability case.
10 [Citations omitted] This procedure is ‘intended to avoid the waste of time and money caused by an
11 unnecessary trial of issues that are moot by reason of the bar of the statute of limitations.’ [Citations
12 omitted]” (Baxter v. Peterson (2007) 150 Cal.Appl.4th 673, 678.)
13 B. Bifurcation Will Expedite Trial and Avoid Juror Confusion
14 Bifurcation will significantly simplify and expedite trial in this matter. Defendants
15 anticipate that they and Plaintiffs will spend a significant amount of time at trial offering expert
16 testimony as to what Decedent’s survival damages, including medical expenses and loss of income,
17 were and the methods by which they came up with those figures. Bifurcating the issue of whether
18 the survival claim damages are time barred will save the Court and jurors significant time and effort
19 as no party will need to offer any expert testimony concerning Decedent’s medical expenses or loss
20 of income. Bifurcation will also avoid juror confusion. In addition to Plaintiffs’ survival claims,
21 Plaintiffs are also seeking wrongful death damages, including financial support from Decedent, loss
22 of gifts and benefits from Decedent, funeral and burial expenses, and the reasonable value of
23 Decedent’s household services. (See Exhibit C to the Declaration of Stephen L. Jenkins).
24 Defendants will dispute each of these wrongful death categories of damages. If the survival claims
25 are not bifurcated, jurors will be forced to hear a plethora of expert testimony not only related to
26 Decedent’s personal injury damages, but also Plaintiffs’ wrongful death damage categories.
27 Bifurcation will prevent jurors from hearing extensive expert testimony on personal injury and
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JOINT DEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION
30 TO BIFURCATE ON THE ISSUE OF WHETHER PLAINTIFFS’ CLAIMS FOR SURVIVAL DAMAGES
ARE BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS
31 32289510.v1
1 wrongful death damages which may be confused or conflated by the jurors.
2 C. Bifurcation Prevents Prejudice
3 Bifurcation also finds support in Evidence Code §352. The law recognizes the inherent
4 prejudice that exists in a case involving an individual versus a corporation. This prejudice is
5 exacerbated when the decedent is allegedly injured by the action of the corporation. Given the large
6 volume of information that would be presented if the jury were to consider the entirety of issues in
7 this complex asbestos case, the jury is likely to be overwhelmed which may result in a prejudice
8 against the corporate defendants.
9 D. Defendants’ Statute of Limitation Defenses Will Dispose of Plaintiffs’
Claims for Survival Damages
10
11 Under CCP §312, all civil actions, without exception, can only be commenced …after the
12 cause of action shall have accrued unless a different limitation is prescribed by statute. An action
13 is commenced, within the meaning of this Title, when a complaint gets filed. (CCP §350.)
14 The statute of limitations as to all of Plaintiffs’ survival damages claims accrued no later
15 than December 25, 2018, and arguably much earlier in 2003, barring these claims against
16 Defendants. CCP §340.2(a) provides that the statute of limitations for an asbestos-related personal
17 injury illness, like Decedent’s, is the later of the following: (1) Within one year after the date the
18 plaintiff first suffered disability; (2) Within one year after the date the plaintiff either knew, or
19 through the exercise of reasonable diligence should have known, that such disability was caused or
20 contributed to by such exposure.” Likewise, a statute of limitations for a survival action is either
21 (1) six months from the date of the decedent’s death or (2) the limitations period that would have
22 been applicable if the person had not died. Finally, and as is fatal to Plaintiffs’ survival claims here,
23 CCP §583.210(a) requires that all complaints, like Decedent’s personal injury action in 2002, be
24 served within three years when the complaint is filed and thus commences a legal action involving
25 the question of liability. Here, it does not matter if Defendants were specifically named in
26 Decedent’s 2002 personal injury action or not, because when a defendant is named in a complaint
27 by fictitious names, such as a “Doe Defendant”, the action commences on the date of filing the
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JOINT DEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION
30 TO BIFURCATE ON THE ISSUE OF WHETHER PLAINTIFFS’ CLAIMS FOR SURVIVAL DAMAGES
ARE BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS
31 32289510.v1
1 complaint for purposes of the period by which plaintiff must serve a summons. (Watson v. Superior
2 Court (1972) 24 Cal.App.3d 53, 61; Warren v. Atchison, T. & S.F. Rwy. Co. (1971) 19 Cal.App.3d
3 24, 38; Rios v. Torvald Klaveness (1969) 2 Cal.App.3d 1077, 1982.)
4 In opposition, Defendants anticipate Plaintiffs citing to Hamilton v. Asbestos Corp. (2000)
5 22 Cal.4th 1127. In Hamilton, the California Supreme Court considered whether a plaintiff could
6 file two separate complaints, each one alleging a different type of injury due to exposure to
7 asbestos. The Court of Appeal had concluded that the second action was not time barred by
8 reasoning, in part, that filing two lawsuits for different injuries from the same exposure
9 impermissibly split plaintiff's cause of action and violated the primary right rule. (Hamilton, supra,
10 22 Cal.4th at pp. 1145-1146.) The Hamilton court also ruled that a cause of action accrues, "in the
11 sense that it is ripe for suit," when the plaintiff discovers he has a compensable injury. (Hamilton,
12 supra, 22 Cal.4th at p. 1144.)
13 But, Defendants’ position is that the holding in Hamilton does not apply due to its facts;
14 instead, Judge J. Brown’s concurring opinion in Hamilton highlights the ruling in Barr v. ACandS,
15 Inc., (1997) 57 Cal.App.4th 103, as the appropriate precedent. In her concurring opinion, Justice
16 Brown held that, while she agreed with the majority opinion written by Judge Mosk, the facts in
17 Hamilton were distinguishable enough from the facts of Barr that Judge Brown saw no reason to
18 disapprove of it. (Hamilton, supra, 22 Cal.4th at p. 1150.) In Judge Brown’s view, the facts patterns
19 in Hamilton and Barr were distinguishable from Hamilton.
20 In Darden, the plaintiff filed a second lawsuit with the same defendant and virtually the
21 same allegations as the first lawsuit he filed almost four years earlier. Consequently, the
22 Court of Appeal held that the plaintiff's second action was time-barred because the filing
23 of the first action triggered the running of the one-year statute of limitations period.
24 (Darden, supra, 40 Cal.App.4th at p. 356.)
25 In Barr, the plaintiff filed a second lawsuit, which was held to be time-barred, asserting
26 the same causes of action as filed several years earlier. (See Barr, supra, 57 Cal.App.4th
27 at pp. 1053-1056.)
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JOINT DEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION
30 TO BIFURCATE ON THE ISSUE OF WHETHER PLAINTIFFS’ CLAIMS FOR SURVIVAL DAMAGES
ARE BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS
31 32289510.v1
1 The plaintiff in Hamilton, unlike the ones in Darden and Barr, was not alleging the same
2 causes of action in his two lawsuits. In the first lawsuit, the plaintiff alleged asbestosis, and in the
3 second, he alleged mesothelioma. As such, the Hamilton court held that the causes of action in the
4 second complaint were separate and distinct from those in the first complaint, and the filing of the
5 first action did not trigger the one-year statute of limitations for the causes of action in the second
6 action. But, as Justice Brown pointed out, the situation was different in both Darden and Barr, and
7 they in turn show the difference between Plaintiffs in this case and the plaintiff in Hamilton. The
8 causes of action in Decedent’s 2002 lawsuit are the same as the causes of action in Plaintiffs’
9 survival action, i.e. they all allege Decedent developed asbestosis in 2001 as a result of his work
10 around Defendants’ employees, products, and/or equipment.
11 The rulings in Darden and Barr properly harmonize CCP §312, 340.2 and 350. §350 states
12 that the filing of a complaint commences a civil action, while §312 states that an action can
13 commence only after it has accrued. Viewed together, these two statutes establish that a plaintiff,
14 by filing a complaint, admits that the causes of action asserted in that complaint have accrued and
15 fall within the applicable limitation period contained in title 2 of the Code of Civil Procedure. In
16 doing so, the plaintiff necessarily admits that the limitation period has started running. Otherwise,
17 the asserted causes of action could not fall within that limitation period.
18 The Court should conclude that the one-year limitation period for asbestos-related causes of
19 action is triggered when a plaintiff either (a) suffers a disability as defined in §340.2 or (b) files a
20 complaint asserting those causes of action. (See Darden, supra, 40 Cal.App.4th at p. 356.) Here,
21 that date would be 2003, which was one year after Decedent filed his asbestosis lawsuit in 2002.
22 Such a conclusion comports with the legislative intent behind §340.2. In enacting §340.2, the
23 Legislature intended to extend the limitation period for asbestos-related illnesses because these
24 illnesses often develop slowly and become symptomatic long before they become disabling. (See
25 Blakey v. Superior Court (1984) 153 Cal. App. 3d 101, 105-106.) The Legislature also wished to
26 encourage individuals afflicted with asbestos-related illnesses to work as long as possible without
27 jeopardizing their right to recovery. (See Nelson v. Flintkote Co. (1985) 172 Cal. App. 3d 727, 735.)
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JOINT DEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION
30 TO BIFURCATE ON THE ISSUE OF WHETHER PLAINTIFFS’ CLAIMS FOR SURVIVAL DAMAGES
ARE BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS
31 32289510.v1
1 As Justice Brown held in her opinion in Hamilton, “making the filing of the complaint an
2 alternative trigger for the one-year limitation period detracts from neither purpose. Individuals
3 suffering from asbestos-related illnesses are only barred from filing serial lawsuits. They still
4 benefit from the delayed accrual date established by §340.2 and may work as long as they can
5 without jeopardizing their right to recovery. Because the Legislature, which clearly intended to
6 place some limits on asbestos-related lawsuits, surely did not intend to give plaintiffs indefinite
7 leave to file multiple lawsuits, I believe Darden and Barr were correctly decided.” (Hamilton,
8 supra, 22 Cal.4th at p. 1151-1152.)
9 Therefore, a bench trial on the issue of whether Plaintiffs’ survival causes of action are
10 barred by the statute of limitations set forth in CCP § 340.1 and 366.1 is not only warranted, but
11 will undoubtedly promote settlement, and will result in a more efficient, economic, and expeditious
12 trial.
13 III. CONCLUSION
14 The two-phase approach to the trial requested by Defendants herein will best serve the ends
15 of judicial economy and efficiency. For all the foregoing reasons, Defendants respectfully request
16 that this Court issue an Order bifurcating the trial as requested herein.
17 Dated: January 28, 2022 GOLDBERG SEGALLA LLP
18
19 By:
GABRIEL A. JACKSON
20 PETER K. RENSTROM
TODD M. THACKER
21 STEPHEN L. JENKINS
Attorneys for Defendant
22 COSCO FIRE PROTECTION, INC.
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JOINT DEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION
30 TO BIFURCATE ON THE ISSUE OF WHETHER PLAINTIFFS’ CLAIMS FOR SURVIVAL DAMAGES
ARE BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS
31 32289510.v1
1 PROOF OF SERVICE
Carol Chulick (WD John), et al. v. Riley Power, Inc., et al.
2 San Francisco County Superior Court Case No. CGC-19-276757
Our Client: Defendant Cosco Fire Protection, Inc.
3
STATE OF CALIFORNIA
4
I declare that I am employed in the County of San Mateo, State of California. I am over the
5 age of eighteen and not a party to the within action; my business address is 611 Gateway Blvd., Suite
120, South San Francisco, California 94080.
6
On January 28, 2022, I served the foregoing document described as JOINT DEFENDANTS
7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO
BIFURCATE ON THE ISSUE OF WHETHER PLAINTIFFS’ CLAIMS FOR SURVIVAL
8 DAMAGES ARE BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS on the
interested parties in this action:
9
David Donadio **See File & ServeXpress website**
10 DDonadio@braytonlaw.com
Brayton Purcell LLP
11 222 Rush Landing Road
P.O. Box 6169
12 Novato, California 94948-6169
T: (415) 898-1555
13 Attorneys for Plaintiffs
14 BY ELECTRONIC SERVICE: I electronically served the document(s) described above
via File & ServeXpress, on the recipients designated on the Transaction Receipt located on the File
15 & ServeXpress website (https://secure.fileandservexpress.com) pursuant to the Court Order
establishing the case website and authorizing service of documents.
16
I declare under penalty of perjury under the laws of the State of California that the
17 foregoing is true and correct.
18 Executed on January 28, 2022, at South San Francisco, California.
19
20
21
Eva Luna
22
23
24
25
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JOINT DEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION
30 TO BIFURCATE ON THE ISSUE OF WHETHER PLAINTIFFS’ CLAIMS FOR SURVIVAL DAMAGES
ARE BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS
31 32289510.v1
Preview
1 GABRIEL A. JACKSON (SBN 98119) 2 gjackson@goldbergsegalla.com ELECTRONICALLY PETER K. RENSTROM (SBN 148459) 3 prenstrom@goldbergsegalla.com F I L E D TODD M. THACKER (SBN 199506) Superior Court of California, County of San Francisco 4 tthacker@goldbergsegalla.com STEPHEN L. JENKINS (SBN 235601) 01/28/2022 5 sjenkins@goldbergsagalla.com Clerk of the Court BY: SANDRA SCHIRO GOLDBERG SEGALLA LLP Deputy Clerk 6 611 Gateway Blvd., Suite 120 South San Francisco, CA 94080 7 Telephone: 415-432-6613 Facsimile: 415-432-6601 8 Attorneys for Defendant 9 COSCO FIRE PROTECTION, INC. 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 COUNTY OF SAN FRANCISCO 12 CAROL CHULICK, as Successor-in-Interest Case No. CGC-19-276757 13 to and as Wrongful Death Heir of JOHN CHULICK, Deceased; and DEBORAH JOINT DEFENDANTS MEMORANDUM 14 HAGEN and JOLEEN HAGLER, as Wrongful OF POINTS AND AUTHORITIES IN Death Heirs of JOHN CHULICK, Deceased, SUPPORT OF MOTION TO BIFURCATE 15 ON THE ISSUE OF WHETHER Plaintiffs, PLAINTIFFS’ CLAIMS FOR SURVIVAL 16 DAMAGES ARE BARRED BY THE v. APPLICABLE STATUTE OF 17 LIMITATIONS RILEY POWER, INC., et al., 18 [Filed concurrently with Notice; Declaration of Defendants. Stephen L. Jenkins; Request for Judicial 19 Notice; and [Proposed] Order] 20 Date: February 28, 2022 Time: 9:30 AM 21 Dept: 502 Judge: The Honorable Jeffrey S. Ross 22 Action Filed: January 22, 2019 23 Trial Date: December 27, 2021 24 25 26 27 28 1 JOINT DEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION 30 TO BIFURCATE ON THE ISSUE OF WHETHER PLAINTIFFS’ CLAIMS FOR SURVIVAL DAMAGES ARE BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS 31 32289510.v1 1 I. INTRODUCTION 2 As part of their wrongful death complaint, Plaintiffs CAROL CHULICK, DEBORAH 3 HAGEN, and JOLEEN HAGLER (“Plaintiffs”) bring three separate survival causes of action. 4 However, as detailed more fully below, these survival claims are barred by the statutes of 5 limitations, including CCP §§ 340.1 and 366.1. Therefore, Defendant COSCO FIRE 6 PROTECTION, INC. (“Cosco) and defendants jointly (“Defendants”) are bringing this motion to 7 bifurcate in order to have the statute of limitation affirmative defenses tried first. 8 Bifurcating the issue will significantly streamline this case and allow it to proceed 9 efficiently at trial, because it will eliminate expert testimony and evidence on the cost and 10 reasonableness of decedent’s medical treatment prior to death and loss of income. Pursuant to Code 11 of Civil Procedure §597, the Court has discretion to try Defendants’ affirmative defenses unrelated 12 to the merits of the Plaintiffs’ claims in order to foster efficiency and avoid unnecessary expense. 13 Bifurcating will also prevent juror confusion as they will only need to hear expert testimony related 14 to Plaintiffs’ claims of asbestosis, pleural disease, and the appropriate wrongful death damages, 15 rather than testimony concerning decedent’ medical treatment or loss of income. Lastly, bifurcation 16 will prevent Defendants from being unduly prejudiced. If the statute of limitations issue as to 17 Plaintiffs’ survival claims is not bifurcated and the jury hears testimony related to these claims, 18 Defendants will be prejudiced as to the perceived extent of Plaintiffs’ actual damages if these three 19 claims are ultimately found to be time barred. Therefore, Defendants hereby request that the Court 20 exercise its discretion under CCP §597 and order that the trial in this matter proceed as follows: 21 Phase One: A bench trial to determine whether all of Plaintiffs’ survival claims are 22 barred by the statute of limitations pursuant to CCP §340.2 and 366.1 and in accordance with the 23 holdings of Darden v. General Motors Corp. (1995) 40 Cal. App. 4th 349 and Barr v. ACandS, Inc. 24 (1997) 57 Cal.App.4th 1038. 25 Phase Two: A jury trial on any of Plaintiffs’ remaining claims that are not disposed of 26 against Defendants. 27 The early resolution of the foregoing issues will best serve the interests of judicial efficiency 28 2 JOINT DEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION 30 TO BIFURCATE ON THE ISSUE OF WHETHER PLAINTIFFS’ CLAIMS FOR SURVIVAL DAMAGES ARE BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS 31 32289510.v1 1 and economy by limiting the time and costs associated with a protracted complex trial and will 2 likewise promote settlement and resolution. 3 II. STATEMENT OF FACTS 4 Decedent first sought personal injury economic damages for his asbestosis and asbestos- 5 related pleural disease nearly 20 years ago, when he filed a personal injury action on February 22, 6 2002, against a number of defendants, including Does 1 through 800. (See Exhibit A to the 7 Declaration of Stephen L. Jenkins in Support of this Motion to Bifurcate). According to his 2002 8 Complaint, Decedent sought past medical expenses and loss of income damages specifically related 9 to his occupational exposures to asbestos and asbestos-containing products. His complaint stated 10 that, as a result of his exposure to asbestos, he suffered “severe and permanent injury . . ., including 11 but not limited to breathing difficulties, asbestosis and/or other lung damage.” According to the 12 complaint, Decedent had been diagnosed with asbestosis and asbestos-related pleural disease on or 13 about April 2001. On December 31, 2013, the 2002 case was dismissed by the Court in its entirety 14 after the last party resolved. (See Exhibit B to the Declaration of Stephen L. Jenkins). 15 John Chulick subsequently died on June 25, 2018. Over six months later, Plaintiffs filed 16 their Wrongful Death/Survival Complaint on January 22, 2019. Plaintiffs’ Complaint for Wrongful 17 Death contains three survival causes of action for John Chulick for the same disease processes: 18 asbestosis and asbestos-related pleural disease. (See Exhibit C to the Declaration of Stephen L. 19 Jenkins). In its answer to the 2019 complaint, Cosco asserts an affirmative defense that Plaintiffs’ 20 survival claims are time-barred under the applicable statutes of limitations. (See Exhibit D to 21 Cosco’s Answer to Plaintiffs’ Complaint). 22 The purpose of bifurcating a trial is to avoid prejudice, promote convenience, and allow for 23 economic and efficient handling of the case. (Cal. Code Civ. Proc. § 1048(b)). A separate non-jury 24 trial on the issue of Defendants’ statute of limitations affirmative defenses as to Plaintiffs’ survival 25 claims – prior to a jury trial on Plaintiffs’ wrongful death action and damages – would promote 26 each of these purposes. This Court should bifurcate the issue for a more efficient trial. If the issue 27 is bifurcated and Plaintiffs’ survival claims are time barred, then jurors will not be forced to listen 28 3 JOINT DEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION 30 TO BIFURCATE ON THE ISSUE OF WHETHER PLAINTIFFS’ CLAIMS FOR SURVIVAL DAMAGES ARE BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS 31 32289510.v1 1 to extensive expert testimony related to Decedent’s medical expenses and loss of income 2 calculations. Further, jurors would not be confused by expert testimony related to these categories 3 of economic damages. 4 III. LEGAL ARGUMENT 5 A. The Court May Order Bifurcation and Separate Bench Trial to Prevent Juror Confusion, in the Furtherance of Convenience, or to Avoid 6 Prejudice 7 This Court has ample authority to bifurcate trial to promote judicial economy and avoid 8 confusion and prejudice. Code of Civil Procedure §598 empowers the Court to order the trial of 9 any issue to precede the trial of any other issue in order to promote “the ends of justice, or the 10 economy and efficiency of handling the litigation.” (Code Civ. Proc. § 598.) Under Code of Civil 11 Procedure section 1048, the Court also has “broad” power to bifurcate trial “in the interests of 12 judicial economy” and to “avoid prejudice.” (Code Civ. Proc. § 1048; see also Grappo v. Coventry 13 Fin. Corp. (1991) 235 Cal.App.3d 496, 503-04 (bifurcating trial to address the “initial threshold 14 determination” as to ownership of the property at issue.) Evidence Code §320 also provides that 15 the Court has discretion to "regulate the order of proof." (Evid. Code § 320.) 16 “It has long been held that special defenses which abate or bar the claim of the plaintiff may 17 be tried before other issues, for a decision in the defendant’s favor may render unnecessary the 18 effort and expense of a complete trial.” (Cohn v. Bugas (1974) 42 Cal.App.3d 381, 389 [internal 19 citations omitted].) CCP §597 sets forth the framework for the statutory authority for the phase of 20 trial sought by Defendants. Specifically, §597 provides, in pertinent part: 21 When the answer pleads that the action is barred by the statute of limitations, or by a prior judgment, or that another action is pending upon the same cause of 22 action, or sets up any other defense not involving the merits of the plaintiff’s cause of action but constituting a bar or ground of abatement to the prosecution thereof, 23 the court may, either upon its own motion or upon the motion of any party, proceed to the trial of the special defense or defenses before the trial of any other issue in 24 the case. 25 Likewise, the Court may “[w]hen the answer pleads that the action is barred by the statute 26 of limitations…or sets up any other defense not involving the merits of the plaintiff’s cause of 27 action but constituting a bar or ground of abatement to the prosecution thereof, the court may, either 28 4 JOINT DEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION 30 TO BIFURCATE ON THE ISSUE OF WHETHER PLAINTIFFS’ CLAIMS FOR SURVIVAL DAMAGES ARE BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS 31 32289510.v1 1 upon its own motion or upon the motion of any party, proceed to the trial of the special defense or 2 defenses before the trial of any other issue in the case…” (Code Civ. Proc., §597.) The Court has 3 broad discretion to order bifurcation under section 1048, and such an order is subject to reversal 4 only for manifest abuse of discretion. (Finley v. Sup. Ct. (2000) 80 Cal.App.4th 1153, 1162-63; 5 Grappo v. Coventry Fin. Corp. (1991) 235 Cal.App.3d 496, 504.) “The major objective of 6 bifurcated trials is to expedite and simplify the presentation of evidence.” (Foreman & Clark Corp., 7 v. Fallon (1971) 3 Cal.3d 875, 888.) 8 Further, bifurcation of the statute of limitations is not uncommon. “Defenses based on the 9 statute of limitations are frequently bifurcated and tried separately from a plaintiff’s liability case. 10 [Citations omitted] This procedure is ‘intended to avoid the waste of time and money caused by an 11 unnecessary trial of issues that are moot by reason of the bar of the statute of limitations.’ [Citations 12 omitted]” (Baxter v. Peterson (2007) 150 Cal.Appl.4th 673, 678.) 13 B. Bifurcation Will Expedite Trial and Avoid Juror Confusion 14 Bifurcation will significantly simplify and expedite trial in this matter. Defendants 15 anticipate that they and Plaintiffs will spend a significant amount of time at trial offering expert 16 testimony as to what Decedent’s survival damages, including medical expenses and loss of income, 17 were and the methods by which they came up with those figures. Bifurcating the issue of whether 18 the survival claim damages are time barred will save the Court and jurors significant time and effort 19 as no party will need to offer any expert testimony concerning Decedent’s medical expenses or loss 20 of income. Bifurcation will also avoid juror confusion. In addition to Plaintiffs’ survival claims, 21 Plaintiffs are also seeking wrongful death damages, including financial support from Decedent, loss 22 of gifts and benefits from Decedent, funeral and burial expenses, and the reasonable value of 23 Decedent’s household services. (See Exhibit C to the Declaration of Stephen L. Jenkins). 24 Defendants will dispute each of these wrongful death categories of damages. If the survival claims 25 are not bifurcated, jurors will be forced to hear a plethora of expert testimony not only related to 26 Decedent’s personal injury damages, but also Plaintiffs’ wrongful death damage categories. 27 Bifurcation will prevent jurors from hearing extensive expert testimony on personal injury and 28 5 JOINT DEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION 30 TO BIFURCATE ON THE ISSUE OF WHETHER PLAINTIFFS’ CLAIMS FOR SURVIVAL DAMAGES ARE BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS 31 32289510.v1 1 wrongful death damages which may be confused or conflated by the jurors. 2 C. Bifurcation Prevents Prejudice 3 Bifurcation also finds support in Evidence Code §352. The law recognizes the inherent 4 prejudice that exists in a case involving an individual versus a corporation. This prejudice is 5 exacerbated when the decedent is allegedly injured by the action of the corporation. Given the large 6 volume of information that would be presented if the jury were to consider the entirety of issues in 7 this complex asbestos case, the jury is likely to be overwhelmed which may result in a prejudice 8 against the corporate defendants. 9 D. Defendants’ Statute of Limitation Defenses Will Dispose of Plaintiffs’ Claims for Survival Damages 10 11 Under CCP §312, all civil actions, without exception, can only be commenced …after the 12 cause of action shall have accrued unless a different limitation is prescribed by statute. An action 13 is commenced, within the meaning of this Title, when a complaint gets filed. (CCP §350.) 14 The statute of limitations as to all of Plaintiffs’ survival damages claims accrued no later 15 than December 25, 2018, and arguably much earlier in 2003, barring these claims against 16 Defendants. CCP §340.2(a) provides that the statute of limitations for an asbestos-related personal 17 injury illness, like Decedent’s, is the later of the following: (1) Within one year after the date the 18 plaintiff first suffered disability; (2) Within one year after the date the plaintiff either knew, or 19 through the exercise of reasonable diligence should have known, that such disability was caused or 20 contributed to by such exposure.” Likewise, a statute of limitations for a survival action is either 21 (1) six months from the date of the decedent’s death or (2) the limitations period that would have 22 been applicable if the person had not died. Finally, and as is fatal to Plaintiffs’ survival claims here, 23 CCP §583.210(a) requires that all complaints, like Decedent’s personal injury action in 2002, be 24 served within three years when the complaint is filed and thus commences a legal action involving 25 the question of liability. Here, it does not matter if Defendants were specifically named in 26 Decedent’s 2002 personal injury action or not, because when a defendant is named in a complaint 27 by fictitious names, such as a “Doe Defendant”, the action commences on the date of filing the 28 6 JOINT DEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION 30 TO BIFURCATE ON THE ISSUE OF WHETHER PLAINTIFFS’ CLAIMS FOR SURVIVAL DAMAGES ARE BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS 31 32289510.v1 1 complaint for purposes of the period by which plaintiff must serve a summons. (Watson v. Superior 2 Court (1972) 24 Cal.App.3d 53, 61; Warren v. Atchison, T. & S.F. Rwy. Co. (1971) 19 Cal.App.3d 3 24, 38; Rios v. Torvald Klaveness (1969) 2 Cal.App.3d 1077, 1982.) 4 In opposition, Defendants anticipate Plaintiffs citing to Hamilton v. Asbestos Corp. (2000) 5 22 Cal.4th 1127. In Hamilton, the California Supreme Court considered whether a plaintiff could 6 file two separate complaints, each one alleging a different type of injury due to exposure to 7 asbestos. The Court of Appeal had concluded that the second action was not time barred by 8 reasoning, in part, that filing two lawsuits for different injuries from the same exposure 9 impermissibly split plaintiff's cause of action and violated the primary right rule. (Hamilton, supra, 10 22 Cal.4th at pp. 1145-1146.) The Hamilton court also ruled that a cause of action accrues, "in the 11 sense that it is ripe for suit," when the plaintiff discovers he has a compensable injury. (Hamilton, 12 supra, 22 Cal.4th at p. 1144.) 13 But, Defendants’ position is that the holding in Hamilton does not apply due to its facts; 14 instead, Judge J. Brown’s concurring opinion in Hamilton highlights the ruling in Barr v. ACandS, 15 Inc., (1997) 57 Cal.App.4th 103, as the appropriate precedent. In her concurring opinion, Justice 16 Brown held that, while she agreed with the majority opinion written by Judge Mosk, the facts in 17 Hamilton were distinguishable enough from the facts of Barr that Judge Brown saw no reason to 18 disapprove of it. (Hamilton, supra, 22 Cal.4th at p. 1150.) In Judge Brown’s view, the facts patterns 19 in Hamilton and Barr were distinguishable from Hamilton. 20 In Darden, the plaintiff filed a second lawsuit with the same defendant and virtually the 21 same allegations as the first lawsuit he filed almost four years earlier. Consequently, the 22 Court of Appeal held that the plaintiff's second action was time-barred because the filing 23 of the first action triggered the running of the one-year statute of limitations period. 24 (Darden, supra, 40 Cal.App.4th at p. 356.) 25 In Barr, the plaintiff filed a second lawsuit, which was held to be time-barred, asserting 26 the same causes of action as filed several years earlier. (See Barr, supra, 57 Cal.App.4th 27 at pp. 1053-1056.) 28 7 JOINT DEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION 30 TO BIFURCATE ON THE ISSUE OF WHETHER PLAINTIFFS’ CLAIMS FOR SURVIVAL DAMAGES ARE BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS 31 32289510.v1 1 The plaintiff in Hamilton, unlike the ones in Darden and Barr, was not alleging the same 2 causes of action in his two lawsuits. In the first lawsuit, the plaintiff alleged asbestosis, and in the 3 second, he alleged mesothelioma. As such, the Hamilton court held that the causes of action in the 4 second complaint were separate and distinct from those in the first complaint, and the filing of the 5 first action did not trigger the one-year statute of limitations for the causes of action in the second 6 action. But, as Justice Brown pointed out, the situation was different in both Darden and Barr, and 7 they in turn show the difference between Plaintiffs in this case and the plaintiff in Hamilton. The 8 causes of action in Decedent’s 2002 lawsuit are the same as the causes of action in Plaintiffs’ 9 survival action, i.e. they all allege Decedent developed asbestosis in 2001 as a result of his work 10 around Defendants’ employees, products, and/or equipment. 11 The rulings in Darden and Barr properly harmonize CCP §312, 340.2 and 350. §350 states 12 that the filing of a complaint commences a civil action, while §312 states that an action can 13 commence only after it has accrued. Viewed together, these two statutes establish that a plaintiff, 14 by filing a complaint, admits that the causes of action asserted in that complaint have accrued and 15 fall within the applicable limitation period contained in title 2 of the Code of Civil Procedure. In 16 doing so, the plaintiff necessarily admits that the limitation period has started running. Otherwise, 17 the asserted causes of action could not fall within that limitation period. 18 The Court should conclude that the one-year limitation period for asbestos-related causes of 19 action is triggered when a plaintiff either (a) suffers a disability as defined in §340.2 or (b) files a 20 complaint asserting those causes of action. (See Darden, supra, 40 Cal.App.4th at p. 356.) Here, 21 that date would be 2003, which was one year after Decedent filed his asbestosis lawsuit in 2002. 22 Such a conclusion comports with the legislative intent behind §340.2. In enacting §340.2, the 23 Legislature intended to extend the limitation period for asbestos-related illnesses because these 24 illnesses often develop slowly and become symptomatic long before they become disabling. (See 25 Blakey v. Superior Court (1984) 153 Cal. App. 3d 101, 105-106.) The Legislature also wished to 26 encourage individuals afflicted with asbestos-related illnesses to work as long as possible without 27 jeopardizing their right to recovery. (See Nelson v. Flintkote Co. (1985) 172 Cal. App. 3d 727, 735.) 28 8 JOINT DEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION 30 TO BIFURCATE ON THE ISSUE OF WHETHER PLAINTIFFS’ CLAIMS FOR SURVIVAL DAMAGES ARE BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS 31 32289510.v1 1 As Justice Brown held in her opinion in Hamilton, “making the filing of the complaint an 2 alternative trigger for the one-year limitation period detracts from neither purpose. Individuals 3 suffering from asbestos-related illnesses are only barred from filing serial lawsuits. They still 4 benefit from the delayed accrual date established by §340.2 and may work as long as they can 5 without jeopardizing their right to recovery. Because the Legislature, which clearly intended to 6 place some limits on asbestos-related lawsuits, surely did not intend to give plaintiffs indefinite 7 leave to file multiple lawsuits, I believe Darden and Barr were correctly decided.” (Hamilton, 8 supra, 22 Cal.4th at p. 1151-1152.) 9 Therefore, a bench trial on the issue of whether Plaintiffs’ survival causes of action are 10 barred by the statute of limitations set forth in CCP § 340.1 and 366.1 is not only warranted, but 11 will undoubtedly promote settlement, and will result in a more efficient, economic, and expeditious 12 trial. 13 III. CONCLUSION 14 The two-phase approach to the trial requested by Defendants herein will best serve the ends 15 of judicial economy and efficiency. For all the foregoing reasons, Defendants respectfully request 16 that this Court issue an Order bifurcating the trial as requested herein. 17 Dated: January 28, 2022 GOLDBERG SEGALLA LLP 18 19 By: GABRIEL A. JACKSON 20 PETER K. RENSTROM TODD M. THACKER 21 STEPHEN L. JENKINS Attorneys for Defendant 22 COSCO FIRE PROTECTION, INC. 23 24 25 26 27 28 9 JOINT DEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION 30 TO BIFURCATE ON THE ISSUE OF WHETHER PLAINTIFFS’ CLAIMS FOR SURVIVAL DAMAGES ARE BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS 31 32289510.v1 1 PROOF OF SERVICE Carol Chulick (WD John), et al. v. Riley Power, Inc., et al. 2 San Francisco County Superior Court Case No. CGC-19-276757 Our Client: Defendant Cosco Fire Protection, Inc. 3 STATE OF CALIFORNIA 4 I declare that I am employed in the County of San Mateo, State of California. I am over the 5 age of eighteen and not a party to the within action; my business address is 611 Gateway Blvd., Suite 120, South San Francisco, California 94080. 6 On January 28, 2022, I served the foregoing document described as JOINT DEFENDANTS 7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO BIFURCATE ON THE ISSUE OF WHETHER PLAINTIFFS’ CLAIMS FOR SURVIVAL 8 DAMAGES ARE BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS on the interested parties in this action: 9 David Donadio **See File & ServeXpress website** 10 DDonadio@braytonlaw.com Brayton Purcell LLP 11 222 Rush Landing Road P.O. Box 6169 12 Novato, California 94948-6169 T: (415) 898-1555 13 Attorneys for Plaintiffs 14 BY ELECTRONIC SERVICE: I electronically served the document(s) described above via File & ServeXpress, on the recipients designated on the Transaction Receipt located on the File 15 & ServeXpress website (https://secure.fileandservexpress.com) pursuant to the Court Order establishing the case website and authorizing service of documents. 16 I declare under penalty of perjury under the laws of the State of California that the 17 foregoing is true and correct. 18 Executed on January 28, 2022, at South San Francisco, California. 19 20 21 Eva Luna 22 23 24 25 26 27 28 10 JOINT DEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION 30 TO BIFURCATE ON THE ISSUE OF WHETHER PLAINTIFFS’ CLAIMS FOR SURVIVAL DAMAGES ARE BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS 31 32289510.v1