[1371]Opinion
WOODS (Fred), J. Introduction
Petitioners herein are plaintiffs in one of two consolidated toxic tort actions. Petitioners are known as the Cottle plaintiffs.1
In the underlying action, approximately 175 owners and renters of certain residential properties located in the Oxnard Dunes (the Dunes) residential subdivision in Oxnard, California sued various defendants (some of whom are real parties in interest herein) for personal injuries (both physical injuries and emotional distress injuries) and property damages as a result of defendants’ construction and development of the Dunes on a site that for many years had been used as a dumping ground for certain oil industry hazardous wastes and other by-products. In particular, plaintiffs allege that they suffered injuries due to defendants’ failure to disclose the prior use of the property.
After preliminary orders and hearings, the trial court issued an order excluding petitioners from submitting evidence at trial that their personal physical injuries were caused by exposure to chemicals at the Dunes. Petitioners sought review of that order by way of a writ petition, and we granted review. We conclude that the court acted within its authority, affirm its order as clarified and deny the petition for a writ of mandate.
Factual and Procedural Synopsis
In the complaint,2 each Cottle plaintiff claimed to have sustained a myriad of physical injuries and ailments ranging from: “liver damage, suppressed [1372]immune systems, increased susceptibility to leukemia, malignant neoplasms and other forms of cancer, risk of cancer, reproductive toxicity, birth defects, chromosomal damage, environmental acquired immune deficiency syndrome, respiratory diseases, neurological damage, mutagenesis, still births »
Early on in the litigation, the court determined that this case was a complex litigation case under section 19 of the California Standards of Judicial Administration.
In April 1989, plaintiffs responded to a master set of interrogatories. Interrogatory number 65 read:
“If you contend that you suffer any past, present or future Injury or Illness due to Exposure to Chemical Substances which resulted from the acts, errors or omissions of any defendant, give a detailed description of each such Injury or Illness. Your description should include the inclusive dates during which you suffered from each Injury or Illness.”
The standard answer read:
“Objection: This interrogatory calls for both an expert medical opinion and a legal opinion as to the causal connection between exposure to chemical substances and negligent acts by the defendants. Plaintiff at this time cannot identify any injuries caused by exposure to chemical substances. However, plaintiff reserves all rights to assert claims for such injuries as more information becomes available.”
The responses to other interrogatories inquiring into the identification of chemical substances to which plaintiffs had been exposed and the facts supporting their injury or illness and the manner of exposure were substantially the same.
In November 1990, The California Department of Health Services (DOHS) issued a draft remedial action plan and a remedial investigations report concerning the Dunes. The remedial report concluded that: “The waste materials do not pose any significant threat to the health of the residents living at the Dunes Subdivision . . . or to the environment.”
The remedial action plan was issued in final form in June 1991. The final report concludes that: “The Department has determined that the wastes, at present condition, do not pose any significant risks to public health or to the environment. Therefore, no further action is required at this site. The site will be delisted from the Hazardous Waste Bond Expenditure Plan List.”
[1373]On November 7, 1990, the court filed its case management order which provided that: “Each plaintiff shall file and serve a statement establishing a prima facie claim for personal injury and/or property damage. [IQ A. 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.”
The case management order provided that the court “will issue Orders to Show Cause on its own motion as to why evidence should not be excluded at trial on behalf of any plaintiff who has failed to file such a statement.” The case management order set February 1, 1991, as the deadline for plaintiffs’ designation of experts and provided that: “No other witness will be permitted to testify as plaintiffs’ expert, except upon order of the court based upon a showing of good cause.”
Petitioners did not move for reconsideration or seek appellate review of the prima facie requirement.
Both groups of plaintiffs filed their statement of personal injury and property damages on January 7, 1991. In their uniform statement, the Cottle plaintiffs stated that: “it is virtually impossible to determine exactly how each Plaintiff resident was exposed, and to link the manner of chronic low level exposure to the symptoms manifested,” and “[i]t is virtually impossible to determine specifically and exactly which of the substances . . . present at the Dunes, each individual Plaintiff resident has been exposed to, exactly in what amounts (dosages), and precisely when.” (Original italics.) Almost exactly the same language was used in the Dolan plaintiffs’ uniform statement.
The Cottle plaintiffs also stated 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,” (fn. omitted), and “[t]he treating physicians were without benefit of knowing of the toxic exposures.” Again, the Dolan plaintiffs used almost exactly the same language in their uniform statement.
The individual statements of the Dolan plaintiffs echoed that the individual plaintiff had not yet been diagnosed as suffering from injury caused by exposure and listed the known injuries, symptoms and complaints of the individual plaintiff.
In the individual statements of the 40 Cottle plaintiffs, the 21 nonresident owners stated that they did not claim personal injury damages. Of the 21 [1374]nonresident owners, who all made emotional distress claims, 10 listed physical symptoms as part of their emotional distress claims. Of the remaining 19 residents, for 6 people, the only personal injury damages listed was emotional distress, and for 1 person, the only personal injury damages listed were emotional distress and loss of consortium. In other words, only 12 of the Cottle plaintiffs claimed to have suffered any personal physical injury due to exposure to chemicals at the Dunes.
Petitioners seem to link to the Dunes every physical infirmity or malady that they had suffered since becoming connected to the subdivision — headaches, dizziness, bronchitis, breathing problems, skin rashes, eye irritation, sinus problems, lack of energy, throat irritation, insomnia, muscle aches and cramps, stomach problems, diarrhea, ear infections, arthritis, and chronic colds and flu.
The court set a March 4, 1991, hearing on a motion to dismiss all plaintiffs’ personal injury, emotional distress and property damages claims for failure to make the court-ordered prima facie showing.
The court found that plaintiffs had established their prima facie cases regarding their emotional distress and property damages claims, but not their personal physical injury claims.
In its March 12, 1991, ruling on submitted matter, the court stated that: “Implicit in this announced sanction [for failing to file a statement] was the ability to find that a prima facie showing had not been made, and to exclude evidence despite the actual filing of the document.”
The court tentatively ordered the exclusion of “all evidence, by lay or expert witnesses, that plaintiffs have or will suffer any particular injury or illness based on exposure to toxic substances in the Dunes” unless plaintiffs could demonstrate by May 31, 1991, that viable claims for personal injury existed.
Petitioners again did not move for reconsideration or seek appellate review of the prima facie requirement.
On March 21, 1991, the McGrath defendants moved to delay the independent medical examination proposed for each of the plaintiffs in light of the plaintiffs’ inability to set forth a prima facie showing of physical injury. The court granted the motion.
At the April 10, 1991, hearing on that motion, Fred Rucker, counsel for petitioners, raised the issue of the contemplated supplemental statements. [1375]The court advised counsel that it was the court’s hope to “actually widdle [s7c] down specific physical illnesses or conditions or injuries that some medical person could testify to the appropriate medical degree [were] related to the toxics.” (Italics added.)
The court also stated that: “I certainly would consider as a prima facie case if the medical personnel couldn’t limit it to one toxic but that the toxic found there caused a linkage, make some synergistic effect. I wouldn’t require the one, but there does need to be that cause and effect by that individual.” (Italics added.)
Both groups of plaintiffs filed supplemental statements on May 31, 1991. The Dolan plaintiffs stated that: “it is not realistic to assign a specific chemical on a specific piece of realty to a specific injury or disease of a specific Plaintiff’ and that it was “impossible to assign specific chemicals as having caused specific conditions in specific individuals.”
In part, the Cottle supplemental statements consisted of three declarations —one by a toxicologist and two by neuropsychologists. Petitioners also incorporated by reference the declarations of Doctors Broughton, Rust and Adin, which were part of the Dolan plaintiffs’ supplemental statements.
In response, the McGrath defendants filed a motion for issuance of a final order excluding all plaintiffs’ personal injury claims.
The court held a hearing on June 27, 1991, to determine whether the supplemental statements established a prima facie claim for personal physical injury.
At the hearing, the court stated that: “It’s my view, after reading the original and then the supplemental prima facie showings, that there is no witness or witnesses who can testify, that I know of — none have been presented to me — that any hazardous or toxic substance has, to a reasonable medical probability, a certainty or anything beyond the most tenuous possibility caused any illness in any plaintiff or injured or exacerbated any injury.”
Accordingly, based on a motion in limine brought on the court’s own motion, on July 2,1991, the court issued a final order excluding evidence of personal injury (the exclusion order). The order precluded plaintiffs “from offering any evidence that a hazardous material or toxic waste . . . has caused any physical injury or illness or exacerbated any preexisting injury, illness or physical condition.”
[1376]Petitioners filed a writ petition seeking an order compelling the court to set aside and vacate the exclusion order. We issued the alternative writ and stayed the trial, which was set to commence on August 5, 1991.
Contentions
Petitioners raise the following arguments regarding the validity of the exclusion order.
1. There is no authority for the procedure employed by the court.
2. The procedure is unconstitutional as it deprives petitioners of their right to a jury trial by disposing of the action on its merits at a pretrial stage.
3. Petitioners fulfilled the requirements of the order regarding prima facie showings.
4. With respect to the issues of judicial economy and case management expediency, the exclusion order has resulted in an untenable situation in which petitioners will not be permitted to present essential evidence relating to the interconnected physical aspects of their emotional injury claims.
Discussion
I. As part of a trial court delay reduction program, in a complex litigation case, the trial court has the authority to issue an evidence exclusion order.
A. California courts have broad and inherent power to control matters before them.
Petitioners contend that the trial court had no authority for issuing the subject order, which was essentially a summary judgment motion, as it did not follow summary judgment procedures or any other formal procedures, and that the court exceeded the scope of its inherent and discretionary powers. We do not agree with petitioners’ characterization of the order as a summary judgment motion. It is what it says it is — an order excluding evidence. Case law and various statutory provisions give courts broad and inherent powers and serve as the sources for the authority to issue such an order.
According to Code of Civil Procedure section 128, subdivision (a)(8), every court shall have the power to “amend and control its process and orders so as to make them conform to law and justice.” Code of Civil Procedure section 187 provides that: “When jurisdiction is, by the Constitution or this Code, or by any other statute, conferred on a Court or judicial [1377]officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code.” Government Code section 68070 provides that: “Every court may make rules for its own government... not inconsistent with law or with the rules adopted and prescribed by the Judicial Council.”
The instant litigation was designated as complex litigation and assigned to a single judge for all purposes. For purposes of complex litigation: “Principal objects of the preliminary pretrial conference are to expose at an early date the essential issues in the litigation and to suppress unnecessary and burdensome discovery procedures in the course of preparing for trial of those issues.” (Cal. Standards Jud. Admin., § 19(h).)
Furthermore, courts have inherent equity, supervisory and administrative powers (Bauguess v. Paine (1978) 22 Cal.3d 626, 635 [150 Cal.Rptr. 461, 586 P.2d 942]) as well as inherent power to control litigation before them. (Western Steel & Ship Repair, Inc. v. RMI, Inc. (1986) 176 Cal.App.3d 1108, 1116-1117 [222 Cal.Rptr. 556].) Inherent powers of the court are derived from the state Constitution and are not confined by or dependent on statute. (Walker v. Superior Court (1991) 53 Cal.3d 257, 267 [279 Cal.Rptr. 576, 807 P.2d 418].)
California courts have fashioned new forms of procedures when required to deal with the rights of the parties and to manage the caseload of the court. For example, in James H. v. Superior Court (1978) 77 Cal.App.3d 169, 175 [143 Cal.Rptr. 398], the Court of Appeal held that the juvenile court had the inherent power to hold a required competency hearing even though the juvenile court law failed to provide for such a proceeding. The court based its holding on the principle that: “Courts have the inherent power to create new forms of procedure in particular pending cases. ‘The . . . power arises from necessity where, in the absence of any previously established procedural rule, rights would be lost or the court would be unable to function.’ ” (Ibid.) (See also, Ellis v. Roshei Corp. (1983) 143 Cal.App.3d 642, 648-649 [192 Cal.Rptr. 57] [“A trial court is empowered to exercise its supervisory power in such a manner as to provide for the orderly conduct of the court’s business and to ‘guard against inept procedures and unnecessary indulgences which would tend to hinder, hamper or delay the conduct and dispatch of its proceedings.’ ”]; Adamson v. Superior Court (1980) 113 Cal.App.3d 505, 509 [169 Cal.Rptr. 866] [“Courts are not powerless to formulate rules of procedure where justice demands it.”]; Santandrea v. Siltec Corp. (1976) 56 Cal.App.3d 525, 529 [128 Cal.Rptr. 629] disapproved on another point in [1378]Bauguess v. Paine, supra, 22 Cal.3d 626, 639, fn. 8 [“Every court has the inherent power to regulate the proceedings of matters before it and to effect an orderly disposition of the issues presented.”]; Mowrer v. Superior Court (1969) 3 Cal.App.3d 223, 230 [83 Cal.Rptr. 125] [“A court has inherent power to exercise reasonable control over all proceedings connected with the litigation before it.”].)
In Peat, Marwick, Mitchell & Co. v. Superior Court (1988) 200 Cal.App.3d 272, 285 [245 Cal.Rptr. 873], the Court of Appeal upheld the trial court’s evidence preclusion order for an abuse of the discovery process notwithstanding the absence of a specific statutory authorization. The court reasoned that courts have inherent powers, independent of statute; powers which are derived from the historic power of equity courts and from the court’s supervisory and administrative powers. (Id., at p. 287.)
In Asbestos Claims Facility v. Berry & Berry (1990) 219 Cal.App.3d 9, 23-25 [267 Cal.Rptr. 896], a complex litigation case, the court upheld the trial court’s use of its inherent powers to appoint a law firm as a designated defense counsel to perform primarily administrative functions such as scheduling depositions and medical examinations, but required the trial court to monitor the firm’s fee requests. The court reasoned that:
“In addition to their inherent equitable power derived from the historic power of equity courts, all courts have inherent supervisory or administrative powers which enable them to carry out their duties, and which exist apart from any statutory authority. ‘It is beyond dispute that “Courts have inherent power... to adopt any suitable method of practice, both in ordinary actions and special proceedings, if the procedure is not specified by statute or by rules adopted by the Judicial Council.” ’ That inherent power entitles trial courts to exercise reasonable control over all proceedings connected with pending litigation, including discovery matters, in order to insure the orderly administration of justice. ‘Courts are not powerless to formulate rules of procedure where justice demands it.’ The Legislature has also recognized the authority of courts to manage their proceedings and to adopt suitable methods of practice.” (Citations omitted.) (Id., at p. 19.)
The court also stated that:
“The extent of the trial court’s inherent managerial power in complex civil litigation has not yet been delineated by this state’s reviewing courts. However, federal courts have long recognized that active and effective judicial management of such litigation is crucial. One federal court has explained, ‘Managerial power is not merely desirable. It is a critical necessity. ... We face the hard necessity that, within proper limits, judges must [1379]be permitted to bring management power to bear upon massive and complex litigation to prevent it from monopolizing the services of the court to the exclusion of other litigants.’ ” (219 Cal.App.3d at p. 20.)
B. California courts have broad, discretionary authority to exclude evidence.
Courts have broad authority over the admission of evidence. (3 Witkin, Cal. Evidence (3d ed. 1986) § 1707, p. 1667.) The following relevant Evidence Code sections were cited by the court in its order: 310 (determination of issues of fact preliminary to the admission of evidence), 320 (the power to regulate the order of proof), 352 (exclusion of prejudicial, confusing and unduly time-consuming evidence) and 402, subdivision (b) (preliminary determination regarding admissibility of evidence).
C. The Ventura County trial reduction program empowers the court to exclude unmeritorious claims.
Under the Trial Court Delay Reduction Act (Gov. Code, § 68600 et seq.), designated counties, including Ventura County where this action is venued, have been given wide latitude in developing their own rules and procedures to reduce litigation delays that have reached “scandalous proportions” in some counties. (Laborers’ Internat. Union of North America v. El Dorado Landscape Co. (1989) 208 Cal.App.3d 993, 1001 [256 Cal.Rptr. 632].)
Superior Court of Ventura County, local court rule 3.01 provides that:
“A. Purpose, Intent. The goals of judicial process being the determination of facts and applicable law in each case and the rendering of court disposition with finality and without undue delay, the intent of this court is to accept responsibility for, monitor and require timely preparation of all phases of litigation in all cases filed in the court, from the date of filing to the date of disposition. To this end, the court will require full disclosure of all pertinent facts between parties to actions at the earliest possible time, and frank discussion of potential agreement and resolution of contested issues, to every extent permitted by law. It is further intended that the predictability of the outcome of court proceedings will thus be enhanced, in the interest of increased recognition and mutual acceptance of just results; and with reduced reliance on delay, concealment, surprise, and other elements of legal strategy that make no legitimate contribution to the ends of justice.
“B. Trial Assignment, Expedition. The public resources of the court system are limited, and must be reserved for those cases that truly must have [1380]contested trials, which have historically been a small percentage of all cases filed with the court. Likewise, trial judge and courtroom resources must be efficiently used, and unnecessary delay in the trial process itself must be eliminated. To this end, parties and counsel shall be prepared to proceed promptly to trial when court resources are available for trial. Following commencement of a trial, the trial shall proceed without undue delay and in the minimum time necessary for a fair trial.”
“The management of the trial court’s delay reduction program is an area within the court’s discretion and will not be disturbed unless it appears that the exercise of the discretion was a clear abuse or a miscarriage of justice.” (Youngworth v. Stark (1991) 232 Cal.App.3d 395, 401 [283 Cal.Rptr. 668].) “Guiding the disposition of this issue are two competing policies: (1) the reduction of delay in litigation and the expeditious and timely resolution of cases, and (2) the resolution of cases on their merits rather than dismissal on procedural grounds.” (Ibid.)
In view of all these authorities, most of which were relied upon by the trial court, it is apparent that courts have the power to fashion a new procedure in a complex litigation case to manage and control the case before them. Although it is 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, we conclude that a court should consider the totality of the circumstances of the particular case in deciding how to manage a complex litigation case.
In the instant case, the timing of the order is crucial to its legitimacy. The order was issued on July 2, 1991, and the trial was set to commence on August 5, 1991. Thus, the final order was made on the eve of trial, apparently at a time after petitioners had submitted their lists of designated experts.3 Had 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.
Moreover, it has been estimated that the trial will be an extraordinarily lengthy one. Although in April 1991, petitioners stated that the trial would last approximately one year, the writ petition refers to a two-year trial or a trial lasting more than one year.
[1381]Although most of the cases cited herein involve different kinds of usé of the court’s inherent powers, Peat, Marwick also involved an evidence preclusion or exclusion order even though the order was founded upon a different basis — an abuse of the discovery process. In Peat, Marwick, the court opined that inherent powers should be “flexibly applied in response to the many vagaries of the litigation process.” (Peat, Marwick, Mitchell & Co. v. Superior Court, supra, 200 Cal.App.3d 272, 287.) The court stated that motions in limine were 'an example of the court’s inherent power and noted that the scope of such motions is “ ‘any kind of evidence which could be objected to at trial, either as irrelevant or subject to discretionary exclusion as unduly prejudicial.’ ” (Id., p. 288.)
We conclude that Judge Johnson properly used the court’s inherent powers to manage the complex litigation case before her and hold that in a complex litigation case which has been assigned to a judge for all purposes, a court may order the exclusion of evidence if the plaintiffs are unable to establish a prima facie claim prior to the start of trial.
Having discussed the general appropriateness of the court’s actions and order, we now turn to a discussion of the issues of whether the procedures used to arrive at the instant order violated petitioners’ due process rights or their right to a jury trial and whether petitioners made a prima facie showing of personal injury.
II. The instant exclusion order was valid.
A. History of the instant order.
In April 1989, in response to a master set of interrogatories, petitioners responded that they could not “identify any injuries caused by exposure to chemical substances. However, plaintiff reserves all rights to assert claims for such injuries as more information becomes available.”
Accompanying the proposed case management order was a declaration in which counsel stated that: “According to their deposition testimony, none of the deposed plaintiffs have been examined by a medical expert to determine whether their physical complaints have any relation to exposure to chemical substances alleged to be present at the Dunes subdivision.” In requesting the case management order, defendants also noted the “evasive” responses to discovery and the existence of DOHS testing.
Thus, petitioners failed in discovery to disclose any information pertaining to their physical injury claims.
[1382]Accordingly, in the November 7, 1990, case management order, the court ordered that each plaintiff file a statement establishing a prima facie claim, specifically ordering that: “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 injuries; and the identity of each medical expert who shall support the plaintiff’s personal injury claim.”
Both groups of plaintiffs submitted statements of personal injury and property damages on January 7,1991. In their respective uniform statements, both groups of plaintiffs essentially stated that they could not link a specific illness to a specific chemical and admitted that none of the plaintiffs had been diagnosed as having any illness or injury caused by exposure to the chemicals.
On March 4,1991, the court held a hearing on a defense motion to dismiss all plaintiffs’ personal injury, emotional distress and property damages claims for failure to make the court-ordered prima facie showing. During oral argument, one defense counsel noted that the statements did not say “it’s more likely than not” or “that it’s within a reasonable medical certainty that plaintiffs’ injuries have been caused by exposure.”
After oral argument, the court found that plaintiffs had established their prima facie cases regarding their emotional distress and property damages claims, but not their physical injury claims.
In addition to plaintiffs’ having admitted that no plaintiff had been diagnosed as having a physical injury or illness caused by exposure, the DOHS preliminary report stated that the chemicals at the Dunes did not pose a significant threat to the health of the residents.
Thereafter, there was a defense motion to dismiss certain causes of action. In the motion, defendants noted that in the uniform statements causation was cast in terms of “may.” The court tentatively ordered the exclusion of “all evidence, by lay or expert witnesses, that plaintiffs have or will suffer any particular injury or illness based on exposure to toxic substances in the Dunes” unless plaintiffs could demonstrate by May 31, 1991, that viable claims for personal injury existed.
Petitioners did not object to, or seek appellate review of, the requirement of making a prima facie showing of personal injury either at the time the case management order was issued or when supplemental statements were requested by the court.
[1383]At the April 10, 1991, hearing on the related matter of delaying the independent medical examinations of the plaintiffs, counsel for petitioners raised the issue of the contemplated supplemental statements. The court advised counsel that it was the court’s hope to “actually widdle Ozc] down specific physical illnesses or conditions or injuries that some medical person could testify to the appropriate medical degree [were] related to the toxics.” (Italics added.)
Plaintiffs filed supplemental statements, and the court held a hearing on June 27, 1991, on a motion to issue a final order excluding all plaintiffs’ personal physical injury claims. The court determined that plaintiffs still were unable to demonstrate with reasonable or probable medical certainty the existence of a single physical injury caused by exposure at the Dunes. Afterwards, based on the court’s own motion in limine, the court issued the final order excluding evidence “that a hazardous material or toxic waste . . . has caused any physical injury or illness or exacerbated any preexisting injury, illness or physical condition.”
In the order, the court cited its inherent power to manage complex litigation in accordance with the Asbestos Claims and Peat, Marwick cases as well as its “sua sponte ability to preclude evidence upon an appropriate showing or lack of showing” in accordance with the Evidence Code. In its order, the court stated that:
“The court finds that there is substantial legal justification for a pretrial order of this nature. This case has been designated as complex litigation pursuant to section 19 of the Judicial Administrative Standards. Section (g)(4) encourages the court to consider — and presumably make rulings on — protective orders. The Fifth Amended Dolan Complaint and Fourth Amended Cottle Complaint raised questions regarding plaintiffs’ ability to make a prima facie showing regarding their personal injury claims (i.e. that a certain substance or combination of substances caused, to a reasonable medical certainty some disease or personal injury to a plaintiff, or exacerbated some preexisting condition). The Case Management Order of November 7, 1990, was intended to determine if the personal injury claims, or any other cause of action, should be the subject of trial testimony. Since the plaintiffs have acknowledged they have no treating physician, medical doctor, or qualified medical expert who can testify as to causation, any evidence regarding plaintiffs’ personal injury claims would confuse the jury, require the defense to respond unnecessarily, and elongate this trial.”
B. Petitioners were not deprived of due process or the right to a jury trial.
Petitioners claim that the court’s review of their prima facie showings comprised a moving target that at various times appeared to be a [1384]protective order proceeding, a motion on the pleadings proceeding, a summary judgment proceeding, a motion in limine proceeding and/or a housekeeping proceeding and that by moving the target or not making plain the type of proceeding that was underway, the governing standard and the legal basis for such standard were not clear. Furthermore, petitioners question the use of the reasonable medical probability standard at the pretrial stage and placing the burden of going forward on them.
We disagree with petitioners’ characterization of the court’s actions. Rather, we conclude that the court merely reacted to petitioners’ inability to establish a prima facie case of physical injury by their having admitted that so far none of them had been diagnosed as having an injury caused by exposure. We note that the court read both the initial and supplemental statements and twice listened to extensive argument on the issue of a prima facie showing of physical injury.
Although given the caldron of chemicals present at the Dunes, the initial order of the court may have been too demanding in asking the plaintiffs to make linkages between the specific chemicals, exposure and specific illnesses or injuries, the court did permit the plaintiffs to submit supplemental statements and later clarified that it wanted a synergistic cause and effect linkage between exposure and symptoms.
To the extent that petitioners’ claim that the court moved the target can be interpreted as a claim that the court violated their right to due process, we disagree with such a claim. Even though the nature of the proceedings in the court changed, it was clear that what the court wanted was for petitioners to make a prima facie showing of their physical injury claims. Accordingly, petitioners had notice of what was actually required of them as well as extensive opportunity to present evidence and argue the issue.
C. A prima facie claim of physical injury or illness requires a showing of a degree of reasonable medical probability based upon competent expert evidence.
“The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. [Citations.] That there is a distinction between a reasonable medical ‘probability’ and a medical ‘possibility’ needs little discussion. There can be many possible ‘causes,’ indeed, an infinite number of circumstances which can produce an injury or disease. A possible cause only becomes ‘probable’ when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its [1385]action. This is the outer limit of inference upon which an issue may be submitted to the jury.” (Italics added.) (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402-403 [209 Cal.Rptr. 456].)
Petitioners argue that the court performed major surgery on their claims and unconstitutionally deprived them of their right to a jury trial in that it made factual determinations which should have been resolved by the designated fact finder. (Olivia N. v. National Broadcasting Co. (1977) 74 Cal.App.3d 383, 389 [141 Cal.Rptr. 511].)
Petitioners insist that causation in the context of an extremely complex case such as this one is not a black and white issue and that the court made factual determinations going to the weight of the evidence since there were doubtless concurrent causes at work with respect to their various medical conditions. They argue that a single expert witness would not be capable of opining on every aspect of causation, but instead experts would offer testimony on one aspect or another of the causation issues and that with concurrent causes, the burden of proving causation would shift to defendants at trial. (Summers v. Tice (1948) 33 Cal.2d 80, 86-88 [199 P.2d 1, 5 A.L.R.2d 91].) Petitioners infer that the jury could determine causation from the totality of the circumstances, making causation a triable issue.
In order to recover damages for physical injury, petitioners would need to introduce evidence that to a degree of reasonable medical probability, their injuries had been caused by exposure to chemicals. Certainly, early in the proceedings, it would have been unreasonable to expect petitioners to make such a connection prior to conducting discovery, but on the eve of trial, requiring such a showing is not unreasonable.
In California, causation must be founded upon expert testimony and cannot be inferred from the jury’s consideration of the totality of the circumstances unless those circumstances include the requisite expert testimony on causation. Had petitioners presented evidence that the chemicals in the ground at the Dunes were in some degree a cause of petitioners’ physical injuries to a degree of reasonable medical probability, then there would have been a factual question for the jury to resolve.
However, it is the lack of such evidence that led to the exclusion order. As will be discussed in the next section, since we agree with the court’s finding that petitioners did not present a prima facie showing of physical injury, we disagree with petitioners’ claim that they presented substantial evidence of causation.
[1386]D. There was no evidence of causation to a degree of reasonable medical probability.
Petitioners argue that although not using the magic words, the declaration of Dr. Greenberg, which tied exposure to specific chemicals to specific ailments suffered by specific plaintiffs as required by the court, fulfills the burden of establishing reasonable medical probability as it placed defendants on notice of petitioners’ physical injury claims and that the declarations of Drs. Ellenberg, Schaeffer, and Broughton support the causation evidence. However, the issue here is not notice, but a showing of a prima facie claim of physical injury. Petitioners conclude that for the court to have reached the conclusion that no medical evidence of causation was presented, the court would have had to ignore the record before it. We disagree.
With one exception, Dr. Broughton did not make any statement that exposure to the chemicals in the Dunes had caused any injury to any of the petitioners to a degree of reasonable probability. In fact, Dr. Broughton stated that because of the mixed nature of the chemicals at the Dunes: “it is impossible to assign specific chemicals has |>z'c] having caused specific conditions to specific individuals.” (Original italics.)
Dr. Broughton did not opine that any petitioner had a physical injury caused by exposure, rather it was his opinion that: “Because of the nature of the identified chemicals, their volume, and their documented caustic and toxic effects, . . . based upon reasonable scientific and medical certainty, that exposure to these chemicals, alone and in combination, has placed these people at significantly increased risk to develop a number of diseases”4; and “the changes exhibited by the group are in all probability related to living in close proximity to chemicals in the environment.” However, the latter statement does not tie the changes to the chemicals at the Dunes as separate from other chemicals in the environment and the changes referred to are those indicating an increased probability of infection (i.e., an increased risk of developing a number of diseases). This aspect we discuss in more detail below.
It appears that for the first time on appeal, the Oxnard Shores defendants impliedly object to the declarations of Drs. Greenberg, Ellenberg, and Schaeffer as being inadmissible and incompetent evidence since, among [1387]other reasons, they are not medical doctors.5 The record before us does not show that these objections were raised in the trial court, and evidentiary objections cannot be raised for the first time on appeal. (People v. Robinson (1965) 62 Cal.2d 889, 894 [44 Cal.Rptr. 762, 402 P.2d 834].) Furthermore, some courts have suggested that in toxic tort cases, causation need not be established by a medical doctor and might in fact be established by a toxicologist. (E.g., In re Paoli R.R. Yard PCB Litigation (3d Cir. 1990) 916 F.2d 829, 855-856.)
We need not reach the issue of whether or not only a medical doctor can testify to causation of physical injuries in a toxic tort case, since assuming arguendo that these declarations are admissible, they still do not establish causation to the requisite degree.
Although Dr. Greenberg makes statements regarding the medical condition of 12 petitioners, the most he says is that their medical condition “could possibly be partially due to and/or exacerbated by continuous exposure” or “could possibly be [or have been] exacerbated by continuous exposure” to chemical substances. As stated in Jones, such statements of possibility instead of probability are not sufficient to prove causation.
Dr. Ellenberg makes a general statement that all four of the male children born at the Dunes suffer from various disabilities related to toxic exposure. Her statements that similar problems “have been associated with,” “could be directly related to effects of,” “may occur in children as a result of,” and “may be related to” exposure do not establish causation to a degree of reasonable medical probability. Finally, Dr. Schaeffer does not express an opinion with respect to any petitioner’s physical, as opposed to emotional, condition and exposure.
The court indicated that it did not think that it had made any factfinding decision or done any weighing of facts, but had taken the plaintiffs’ showing as 100 percent true and that it thought that after hearing plaintiffs’ witnesses, it would have granted a motion for nonsuit. The court stated that it made its decision based on its need to manage the case efficiently and effectively. Rather than taking up the jury’s time hearing testimony on the issue of physical injuries caused by toxins, the court properly sought to avoid confusion and preserve time.
Although we agree that it is important to preserve the right to a jury trial and not to sacrifice fairness and justice for the sake of convenience and [1388]efficiency, we are convinced that did not happen here. In our opinion, the court did not deal a drastic blow to petitioners’ claims or dispose of those claims on the merits; what the court eliminated was essentially a nonexistent claim, as causation must be established by expert testimony, testimony to a degree of reasonable medical probability.
III. Clarification.
While an order excluding evidence for the failure to make a prima facie showing is proper in a complex litigation case so that the court can manage and control the case, we give no opinion on such an order in any other context. Our holding is limited to complex litigation cases.
Petitioners contend that they will not be permitted to present evidence of the physical aspect of their emotional injuries. That contention is contrary to the court’s ruling. The exclusion order only precludes them “from offering any evidence that a hazardous material or toxic waste ... has caused any physical injury or illness or exacerbated any preexisting injury, illness or physical condition.” The order does not preclude evidence of physical injury caused by emotional distress as opposed to physical injury caused by exposure to chemicals.
Furthermore, in the tentative order, the court stated that: “This [ruling] is not intended in any way to preclude plaintiffs from testifying or presenting evidence regarding any emotional distress damages which they claim as a result of exposure and or residence in the Dunes. Although the court is aware that the leading case has been granted review and is no longer the substantive law in California, for puiposes of what evidence will be allowed in at trial, the court will continue to apply the Potter v. Firestone [Tire & Rubber Co. (1990) 232 Cal.App.3d 1114 (274 Cal.Rptr. 885)] standard.”6
We note that one federal circuit court observed that: “[I]n an effort to accommodate a society with an increasing awareness of the danger and potential injury caused by the widespread use of toxic substances, courts have begun to recognize claims like medical monitoring, which can allow plaintiffs some relief even absent present manifestations of physical injury. More specifically, in the toxic tort context, courts have allowed plaintiffs to recover for emotional distress suffered because of the fear of contacting a toxic exposure disease [citation], the increased risk of future harm [citation], [1389]and the reasonable costs of medical monitoring or surveillance [citations].” (Fns. omitted.) (In re Paoli R.R. Yard PCB Litigation, supra, 916 F.2d 829, 850.)
We have not been asked to address whether or not any of these torts are cognizable in California, and we express no views on them. As already noted, petitioners did present expert evidence regarding the increased risk of future harm to the requisite degree of reasonable medical probability.
In the interim, perhaps the Supreme Court or the Legislature will address the issue and provide guidance to trial courts as to whether increased risk is cognizable in toxic tort cases in California.
Disposition
The alternative writ is discharged, the stay issued herein on August 1, 1991, is vacated, and the petition for a writ of mandate is denied. The July 2, 1991, order of the court excluding petitioners from introducing evidence that their physical injuries were caused by exposure to hazardous material or toxic waste at the Dunes is affirmed as expressed in the views in this opinion. Real parties in interest to recover costs on appeal.
Lillie, P. J., concurred.
The 40 Cottle plaintiffs consist of 12 former tenants, 6 current tenants, 21 nonresident property owners and the surviving wife of a deceased gardener who worked at a home in the Oxnard Dunes.
The plaintiffs in the other action are known as the Dolan plaintiffs. Each group of plaintiffs is represented by separate counsel. Although the Dolan plaintiffs are referred to in the opinion, they have not joined in this writ petition or filed any response to it
Not all real parties in interest have filed pleadings pertaining to the writ petition. For the purposes of this petition, we can discern no reason to identify the various defendants other than to refer to them at times.
Petitioners are referred to as the Cottle plaintiffs or petitioners. Plaintiffs is used to refer to both groups of plaintiffs. Real parties in interest are generally referred to as defendants.
Although the court refers to the fourth amended Cottle complaint, only the subcomplaint/ third amended complaint is contained in the record before us. We presume the wording of the complaints is similar.
According to the case management order, that date was after the designation of experts. However, since this matter is before us by way of a writ petition, we do not have the entire record before us. Petitioners’ list of experts is part of the record. Although petitioners objected to the nonsimultaneous designation of experts and a clarification order allowed more time to depose experts, there appears to be no revision of the time limit by which petitioners had to designate their experts.
As part of the Dolan plaintiffs supplemental statement, Drs. Sherman and Greenberg reached the same conclusion regarding plaintiffs’ increased risk.
The McGrath defendants noted that these doctors were not medical doctors, but did not object to their statements on that basis.
Review of Potter v. Firestone Tire & Rubber (1990) 232 Cal.App.3d 1114 [274 Cal.Rptr. 885] was granted on February 28, 1991 (S018831). Under the Potter decision, the appellate court upheld the award of emotional distress damages for the plaintiffs’ fear of developing cancer.