On July 20, 2005 a Motion,Ex Parte was filed involving a dispute between First Doe Through Tenth Doe, Inclusive, Scott, Michael Gerald, Scott, Nancy Marie, Scott, Robert David, Scott, Thomas Cary, Sobolik, Mary Denise, Wolfarth, Joanne Marie, and 3M Company (Formerly Named Minnesota Mining And, Abb, Inc., Abb, Inc. Which Will Do Business In California As, Ac And S, Inc., Allied Packing & Supply, Inc., Amchem Products, Inc., Asbestos Corporation Ltd., A.W. Chesterton Company, Babcock Borsig Power, Inc.,As The Parent Alter Ego, Cbs Corporation, A Delaware Corporation,, Coltec Industries, Inc.,, Crane Co., Darcoid Company Of California, Db Riley, Inc., Dee Engineering Co., Douglass Insulation Company, Eaton Electrical Inc., Eleventh Doe Through Three Hundredth Doe,, Enpro Anchor Packaging, Foster Wheeler Llc, Foster Wheeler Llc, Survivor To A Merger With, Garlock, Inc., General Electric Company, Graybar Electric Co., Graybar Electric Company, Inc., Hill Brothers Chemical Company, Hopeman Brothers, Inc., Imo Industries Inc., Ingersoll-Rand Company, J.T. Thorpe And Son, Inc., Leslie Controls, Inc., Lucent Technologies, Inc., Lucent Technologies, Inc. As A Successor In, Metalclad Insulation Corporation, Metropolitan Life Insurance Company, Minnesota Mining Corporation, Aka 3M Company, M. Slayen And Associates, Inc., M.Slayen & Associates, Inc., New Iem, Llc, The, Quintec Industries, Inc., Rapid-American Corporation, Sb Decking, Inc., Sb Decking, Inc., Formerly Known As Selby,, Soco-Lynch Corporation, Soco West, Inc., Square D Company, Sterling Fluid Systems, Inc., Sterling Fluid Systems, Syd Carpenter Marine Contractor, Inc., Syd Carpenter Marine Engineering, T H Agriculture & Nutrition Llc, The Darcoid Company Of California, The New Iem, Llc,, Thomas Dee Engineering Company, Thorpe Insulation Company, Triple A Machine Shop, Inc., Union Carbide Corporation, Viacom Inc., As Sbm To Cbs Corp., Fka Westinghouse, for civil in the District Court of San Francisco County.
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Howarb ROME MarTIN & RIDLEY LLP SHAWN M. RIDLEY, ESQ. SBN 144311 NAOMI L. FRIBOURG, ESQ. SBN SBN 221084 HOWARD ROME MARTIN & RIDLEY LLP 1775 Woodside Road, Suite 200 Redwood City, CA 94061-3436 Telephone: (650) 365-7715 Attorneys for Defendants EATON ELECTRICAL INC. FKA CUTLER-HAMMER INC., IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO NANCY MARIE SCOTT, individually and as Successor-in-Interest to DENZIL SCOTT, Decedent; JOANN MARIE WOLFARTH; MICHAEL GERALD SCOTT; ROBERT DAVID SCOTT; THOMAS CARY SCOTT; MARY DENISE SOBOLIK; and FIRST DOE through TENTH DOE, inclusive, Plaintiffs, vs. ACANDS, INC., et al., Defendants. TRODUCTION Defendant will move in limine to exclude the testimony of Howard Scott and any other witnesses not properly disclosed by plaintifi’s during the course of pre-trial discovery. ARGUMENT It has been a common practice of other plaintiffs claiming injuries from exposure to asbestos to delay or otherwise withhold product identification and other pertinent information from defendants until the very eve of trial despite defendants’ best efforts to discover this information. Defendant anticipates that plaintiffs’ counsel in this case may seek to call as a witness at trial MOTION IN LIMINE 10 EXCILIDE TESTIMONY OF HOWARD SCOTT AND ANY OTHER UNDISCLOSED WITNESSES NO. 52 Asbestos Cane Not 443236 ELECTRONICALLY FILED ‘Superior Court of California, County of San Francisco AUG 23 2007 GORDON PARK-LI, Clerk BY: WILLIAM TRUPEK Deputy Clerk’ Case No: 443236 MOTION IN LIMINE TO EXCLUDE TESTIMONY OF HOWARD SCOTT AND. ANY OTHER UNDISCLOSED WITNESSES NO. 52 Trial Date: August 13, 2007 Department: 318 Judge: Hon. Robert DonderoHowarb ROME MarTIN & RIDLEY LLP Howard Scott, However, Mr. Scott has never been identified by plaintiffs’ counsel to Defendant in response to specific discovery requests by seeking this information, And it is not until just moments before trial that plaintiffs’ counsel finally revealed Mr. Scott’s identity as well as making known their intent to call him as a witness against Defendant. This “trial by ambush” is in direct contravention of the Discovery Act and plaintiffs’ counsel’s obligations therein, Moreover, permitting plaintiffs to introduce the testimony of Mr. Scott, as well as other witnesses not disclosed in response to pre-trial discovery, would severely prejudice this Defendant who was denied the opportunity to properly investigate and depose those witnesses. Further, Defendant cannot adequately prepare for testimony from those witnesses, and hence would lack the opportunity for effective cross-cxamination which clearly is a denial of Defendant’s fundamental due process rights. Thus, under Evidence Code $352, the Court has discretion to exclude such testimony since its probative value would be substantially outweighed by its prejudice. CONCLUSION For all the foregoing reasons, the testimony of Howard Scott and any other witnesses not disclosed by plaintiffs in the course of pre-trial discovery should be excluded. Date: August 22, 2007 HOWARD ROME MARTIN & RIDLEY LLP By: __/s/ Shawn M. Ridley SHAWN M. RIDLEY, ESQ. SBN 144311 NAOMI L. FRIBOURG, ESQ. SBN SBN 221084 HOWARD ROME MARTIN & RIDLEY LLP 1775 Woodside Road, Suite 200 Redwood City, CA 94061-3436 Telephone: (650) 365-7715 Attorneys for Defendants EATON ELECTRICAL INC. FKA CUTLER-HAMMER INC., 2 MOTION IN LIMINE 10 EXCILIDE TESTIMONY OF HOWARD SCOTT AND ANY OTHER UNDISCLOSED WITNESSES NO. 52 Asbestos Cane Not 443236Howarb ROME MarTIN & RIDLEY LLP Nancy Marie Seow (WD: Denzil), et al. v. ACané . San Francisco County Superior Court Case No. CGC-05-443236 PROOF OF SERVICE BY ELECTRONIC TRANSMISSION 1, the undersigned, declare: that 1 am, and was at the time of service of the documents herein referred to, over the age of 18 years, and not a party to the action; and 1 am employed in the County of San Mateo, State of Califomia. My business address is 1775 Woodside Road, Suite 200, Redwood City, California 94061. On the date executed below, | clectronically served the document(s) via LexisNexis File & Serve described as: « MOTION IN LIMINE TO EXCLUDE TESTIMONY OF HOWARD SCOTT AND ANY OTHER UNDISCLOSED WITNESSES - NO. 52 On the recipients designated on the Transaction Receipt located on the LexisNexis File & Serve website. I declare under penalty of perjury pursuant to the laws of the State of California that the foregoing is true and correct and was executed on August 22, 2007, at Redwood City, California. is! Tamara Sanchez Tamara Sanchez 3 MOTION IN LIMINE 10 EXCILIDE TESTIMONY OF HOWARD SCOTT AND ANY OTHER UNDISCLOSED WITNESSES NO. 52 Asbestos Cane Not 443236