Abex Corp. v. Superior Court

Opinion

PERLEY, J. Petitioners challenge an order denying a motion to require a plaintiff to submit to a biopsy of warts which real parties in interest herein claim were caused by exposure to asbestos.

Preliminarily we reply to real parties’ contention that petitioners should be left to their remedy by appeal. We recognize that the prerogative writ is not a favored method of review of discovery orders, and ordinarily this issue must be raised on direct appeal from a final judgment. (Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 169 [84 Cal.Rptr. 718, 465 P.2d 854].) In explaining an admonition to the appellate courts in [757]this regard, the Supreme Court noted the oft-quoted statement in Ryan v. Superior Court (1960) 186 Cal.App.2d 813, 816-817 [9 Cal.Rptr. 147]: “ ‘One of the prime purposes of the Discovery Act is to expedite the trial of the action. This purpose will be defeated if appellate courts entertain petitions for prerogative writs by which a review of the orders of trial courts in discovery proceedings are sought and which do not clearly demonstrate an abuse of discretion where discovery is denied, or a violation of privilege or of the provisions of section 19 of article I of the Constitution of the state where discovery is granted.’ ” (Italics added, original italics omitted.) (Pacific Tel. & Tel. Co. v. Superior Court, supra, 2 Cal.3d at p. 170, fn. 11.) The instant case represents a clear abuse of discretion and is appropriate for resolution by prerogative writ.

Real parties Richard and Janell Crouson filed a complaint against petitioners and other defendants alleging that Richard Crouson (real party) suffered injury from asbestos and asbestos-containing products produced by defendants. Real party was examined by his medical expert, Dr. Paldi, who noted in a report dated August 14, 1986, that “[t]he patient has several small asbestos ‘corns’ scattered over the palmar surfaces of the hands.” Dr. Paldi’s impression was that petitioner had asbestos lung disease and asbestos skin disease. He further expressed his view that the diagnosis of asbestos lung disease was “further solidified by the findings of asbestos skin disease.”

Following this report, petitioners sought to have real party examined by Dr. Epstein, a dermatologist. Real party’s attorney refused to stipulate to a biopsy of the warts and Dr. Epstein agreed to first examine real party and then decide whether or not a biopsy was necessary. Dr. Epstein examined real party and reported that real party told him of first noticing “skin lesions approximately eight to ten years ago. These were located on the scalp, palms, fingers and ankles. They grew in number very gradually and have been essentially asymptomatic. When they get particularly thickened, he ‘scrapes them off with a pocket knife.’ The lesions come and stay and do not disappear on their own.” Dr. Epstein stated that “[t]he clinical appearance of these lesions certainly is compatible with ordinary viral warts or with the banal keratoses which occur in many people and are unrelated to asbestos or any other known exposure. ... I think that at this time all one can say is that the lesions appear to be compatible with viral warts but that certain diagnosis would require histopathologic examination.”