Dying depositions

Introduction

Grainy video shot last August shows 75-year-old Nader Kordestani lying in a padded recliner at his home in Calabasas, California, near Los Angeles. Off camera, a defense lawyer asks him if it’s true his health is failing.

Dressed in a gray sweater and covered in a blanket, Kordestani replies in a stilted voice. “That’s correct. I am, believe me, I am dying. I’m not in good shape. I am not going to survive.”

For more than three hours, Kordestani responds to questions between labored breaths and a hacking cough, his eyes at times struggling to stay open. Lawyers argue as the Iranian immigrant is peppered with questions, many repetitive, about events that happened decades earlier.

It is not Kordestani’s first time being deposed while suffering from mesothelioma, a rare and aggressive cancer linked to asbestos. A roomful of lawyers questioned him for more than 17 hours over 18 days in 2013. That year, Kordestani had sued 50 corporations for allegedly exposing him to the fiber while he worked at an Iranian oil refinery, starting in the 1960s. The refinery was built, in part, by American companies, which is why he’s suing in the United States.

Depositions routinely last 20 or more hours in California asbestos cases, lawyers say, far outpacing federal limits and other states where the number of hours rarely exceeds single digits.

The arduous and antagonistic process puts a heavy strain on mesothelioma patients typically given months to live following diagnosis and simultaneously undergoing harsh therapies like radiation. Situations like Kordestani’s raise a thorny question: How much is too much?

Plaintiff’s lawyer Jeffrey Simon, who is licensed to practice in Texas, New York and California, said lengthy depositions have only been an issue in the Golden State. “I do not think that it is appropriate to depose a dying plaintiff for days on end,” Simon said. “That’s every day in California.”

In 2015, his firm handled three California cases in which plaintiffs respectively were deposed for 21 hours over six days; 36 hours over 10 days; and 48 hours over 21 days. Simon and other plaintiff’s lawyers call the drawn-out depositions a stalling technique meant to run out the clock or harass sick clients into dismissing claims. In California, clients must be alive during trial to claim damages for pain and suffering.

Defense lawyers counter that detailed depositions enable companies to adequately defend themselves when millions of dollars are at stake in plaintiff-friendly jurisdictions like California. Mesothelioma settlements, the lawyers say, can range from $1 million to $5 million, with the success of cases often centered on whether plaintiffs can positively identify exposures to specific asbestos-containing materials.

California’s rules on damages, coupled with high standards for case dismissal, gives plaintiffs a leg up, said Anosheh Hormozyari, whose law firm has offices in California, Maryland, and Texas, and whose clients include ExxonMobil and 3M. “They’re able to recoup a lot of money; it’s a lot easier to get in California than in other states.”

Hormozyari said plaintiffs are inclined to sue financially-solvent companies–not the ones most likely to be responsible for their asbestos exposures. “You throw the pasta on the wall and see what sticks. That’s kind of how it seems.”

She denied that depositions are extended for any reason other than to gather pertinent facts. “I’ve never seen it purposely stall in the hope that something unfortunate happens to the plaintiff,” Hormozyari said, noting that she and plaintiff’s lawyers had recently agreed to a 26-hour deposition. “The majority of these sick plaintiffs will not make it to testify for trial. You have to find a way to lock [in] the testimony for trial.”

Like most states, New York doesn’t limit the length of depositions, relying on cooperation between opposing lawyers or court discretion to curb testimony. Among those with limits are Texas, which restricts depositions to six hours, and Arizona, which holds them to four.

Only a third of the states have formal limits, according to Stephen Nichols, a defense lawyer who co-authored a paper about asbestos depositions in 2015 called “The Discovery Deposition Conundrum.” Nichols urged shorter, more efficient depositions, advising lawyers against falling into “a ‘groundhog day’ mentality” with witness questioning.

Simon blames local courts in California for allowing defendants to drag out formulaic depositions far longer than what is considered ample time in other jurisdictions. “The cross examinations in California are lengthier, but not better,” he said.

California lawmakers emulated federal courts in 2013 by limiting most civil depositions to seven hours in 2013. An exception was made for complex cases, like asbestos claims, which were given a 14-hour cap.

But lawyers say jurisdictions see the limit as a suggestion, not a hard-and-fast rule. In 2014, the Superior Court in Los Angeles County defaulted to an older, 20-hour guideline after it was sued by a defendant who hadn’t had time to question a plaintiff in an asbestos case. The court also coordinates asbestos cases in San Diego and Orange counties, and has been known to grant additional time beyond 20 hours.

In October, California Superior Court Judge Emilie Elias declined a request to block Nader Kordestani from being deposed further in a case filed by another former worker at Iran’s Abadan refinery, Samad Sarooie. Abadan was among the world’s largest refineries during the late 1940s, producing nearly half a million barrels daily, according to court documents.

The Sarooie case is separate from Kordestani’s own 2013 lawsuit. Though the two men were acquaintances who played basketball occasionally, Kordestani testified that he knew Sarooie “not at all well” and was unable to provide any details on Sarooie’s work history.

“They just drill and drill, they ask the same question 20 times,” Kordestani’s daughter, Neda, said of the August 2015 deposition that was mandated by subpoena. “My dad doesn’t even know enough about the facts they are looking for.”

The deposition transcript shows repetitive questions about Sarooie’s work history that Kordestani was unable to answer, as well as detailed questions like whether Kordestani could recall the sizes of crates and boxes he saw in the refinery. The deposition was cut short when Kordestani’s wife became concerned for her husband’s health; he had spent the night before at the hospital.

Neda Kordestani said her father’s health has only worsened since his 2013 mesothelioma diagnosis, with recent bouts of pneumonia and shingles. He has undergone more than two dozen rounds of radiation and chemotherapy and uses an oxygen machine to breathe.

Kordestani can be deposed again for the Sarooie case since his testimony is considered incomplete, but his lawyer and daughter said he has no intention of participating any further in a lawsuit in which he has no stake, regardless of any legal repercussions. “You have someone who is spending their entire existence trying to stay alive,” said the lawyer, Benno Ashrafi.

Erin Carpenter, who represents defendant Amec Foster Wheeler in the Sarooie case, did not respond to several requests for comment. Carpenter had previously deposed Kordestani at length about the Abadan refinery in the 2013 case. His firm subpoenaed Kordestani for the Sarooie case.

“Many of these cases have people who are dying. They have to be subjected through depositions and all of that. It’s a hard thing,” Judge Elias said in court in October. “I understand [Kordestani] is very ill, but if I take the position that very ill people don’t have to have their depositions finished, we will have no depositions taken.”

Elias played down the seriousness of a note from Kordestani’s oncologist that read “any further deposition of Mr. Kordestani will cause immense amount of physical harm to Mr. Kordestani and could shorten his life.”

Said the judge: “It’s not going to cause his death.”

A court spokesperson declined to comment on Elias’s behalf.

This story also appears in the April issue of the ABA Journal.