‘Deep-Pockets’ Measure Not Retroactive

In an action affecting thousands of personal injury claims, the state Supreme Court on Thursday let stand an appellate ruling that Proposition 51, the “deep-pockets” initiative, cannot be applied to cases that were pending when it was passed in June.

The justices, in a brief order, refused to review a decision last month by the state Court of Appeal in San Francisco that there was no “clear intent” expressed in the initiative that it was to apply retroactively.

The action means that the appellate ruling is binding on state trial courts, unless and until the high court justices rule otherwise in another case.

The initiative represented one of the most sweeping reforms of personal injury law in the state’s history. Under its provisions, each losing defendant needs to pay for non-economic damages--such as pain and suffering--only in proportion to its degree of fault.

Under the so-called “deep-pockets” doctrine, established by previous court decisions, a defendant could be required to pay for all such damages if other defendants could not pay, regardless of the degree of fault. That rule still applies for economic damages, such as medical expenses.

The court’s action came as something of a surprise. The issue of retroactivity of the measure had divided lower courts. And it was widely expected that the justices, with millions of dollars in potential damage awards at stake, would agree to review the case and render their own decision. But by a close vote, they declined to hear a challenge to the appellate court ruling brought by a group of asbestos and insurance companies.

Justices Cruz Reynoso, Malcolm M. Lucas and Edward A. Panelli voted to grant review--one short of the required majority. Chief Justice Rose Elizabeth Bird and Justices Stanley Mosk, Allen E. Broussard and Joseph R. Grodin refused to vote for review.

In other actions, the justices sent three other cases raising the issue of retroactivity back to state appellate courts for reconsideration in light of the September decision by the San Francisco appellate court.

Lawyers representing plaintiffs in personal injury suits hailed the justices’ action.

“We’re very pleased with the court’s action,” said Bryce C. Anderson of Concord, one of the attorneys representing James Russell, a 60-year old pipefitter who, as a victim of asbestos-related lung disease, brought suit against several asbestos manufacturers.

“There were 6,000 asbestos-related cases in San Francisco and Alameda County alone that are hanging fire, along with countless other personal injury suits throughout the state,” Anderson said. “Until this issue was resolved, those cases were in limbo.”

Gerald E. Agnew Jr., president of the Los Angeles Trial Lawyers Assn., said it was “a very clear indication” that the justices agreed with the result and the reasoning of the appeal court decision.

“The initiative never spoke to the question of retroactivity and it would have made no sense to make it retroactive,” Agnew said.

Attorneys for the defendants in the case had argued that the initiative was aimed at ending the financial drain the “deep-pockets” doctrine had placed on private firms and public agencies that were being forced to pay damages far greater than their share of fault.

Unless it was applied to pending cases, it could be years before the initiative had practical effect and fulfilled the intention of the voters, they contended.