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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McNAMARA, DODGE, NEY, BEATTY, SLATTERY, PEALZER, RORGFS & PROTHERS LLP ATTORNEYS ATLAW P.O, BOX S288, Wal TK, C4 94596 939-8330 2 THOMAS E. PFALZER (State Bar No. 85261) PATRICK L. MOORE (State Bar No. 84909) ELECTRONICALLY McNamara, DODGE, NEY, BEATTY, SLATTERY, PFALZER, BORGES & BROTHERS LLP FILED Post Office Bow S288 in of San Pace Walnut Creek, CA 94596 AUG 23 2007 Telephone: (925) 939-5330 GORDON PARK- Facsimile: (925) 939-0203 en Cent BY: WILLIAM TRUPEK Deputy Clerk| Attomeys for Defendant Sterling Fluid Systems (USA), LLC, misnamed as Sterling Fluid ‘Systems (Americas) Inc., f’k/a and/or Successor to Sterling Fluid Systems (U.S.A.) ffk/a Peerless Pumps SUPERIOR COURT OF CALIFORNIA, CITY AND COUNTY OF SAN FRANCISCO, CIVIL - UNLIMITED JURISDICTION NANCY MARIE SCOTT, Individually and Case No. CGC-05-443236 as Successor-in-Interest to DENZIL SCOTT, Decedent; JOANNE MARIE WOLFARTH; MICHAEL GERALD SCOTT; ROBERT DAVID SCOTT; THOMAS CAREY SCOTT; MARY DENISE SOBOLIK; and FIRST DOR, through TENTH DOE, inclusive, STERLING FLUID SYSTEM (USA), LLC’S MOTION IN LIMINE TO EXCLUDE EVIDENCE PRODUCED OUTSIDE OF DISCOVERY, INCLUDING BUT NOT LIMITED TO WITNESS HOWARD SCOTT Plaintiff, Trial Date: August 13, 2007 vs. Action Filed: July 20, 2005 AC AND §, INC.; et al, Defendant. MOTION IN LIMINE TO EXCLUDE EVIDENCE PRODUCED OUTSIDE OF DISCOVERYMeNAMARA, DODGE, NEY, BEATTY, SLATTERY, PFALZER, BORGES & BROTHERS LLP } 910-8330 ONE. 49 INTRODUCTION ‘This defendant propounded discovery to plaintiffs regarding the basis of their claims and plaintiffs provided responses to Sterling’s discovery (Exhibit A to Declaration of Patrick L. Moore). Subsequent to plaintiffs’ responses Sterling Fluids and plaintiffs’ depositions, Sterling filed a motion for summary judgment based on lack of product ID. Plaintiff's opposed the motion with the declaration of William Chesson (Exhibit B). William Chesson was duly deposed and gave testimony that he worked alongside decedent Denzil Scott at Hunter's Point Naval Shipyard in the late 50’s or carly 60's (Exhibit B). Plaintiffs have never given the name of Howard Scott as a product [D witness as to Sterling Fluid Systems (Peerless Pumps). Plaintiff's only substantive discovery responses to Sterling listing any co-workers is set forth in Plaintiffs’ Supplemental Responses to Special Interrogatories (Exhibit A). Howard Scott is not listed as a co-worker witness (Exhibit A- Supplemental Interrogatory responses; Question No. 7), In addition, for a week and a half, a settlement conference was held in front of Judge Mason in this case just prior to the trial assignment. During this settlement conference, Plaintif?"s counsel Steven Fishback represented to the court and to various defense counsel present, including Sterling's counsel Patrick Moore, that he had a “new witness” that would ID Sterling post 1976 when Sterling bought the Peerless Pump line from FMC. Sterling's counsel repeatedly requested both the identity of this “new witness” and requested an interview to determine what evidence the witness had, Mr. Fishback refused repeatedly to identify the name of the witness and/or allow Sterling’s representatives to interview this new witness. This ordered plaintiffs on 8/22/07 to produce the names of all product ID witnesses against each defendant. For the first time, the name of Howard Scott was revealed against defendant Sterling Fluid Systoms (Peerless Pumps) as well as Mr. Chesson. Those were the only two names produced by Plaintif?"s counsel Bruce Jackson. 2 MOTION IN TIMINE TO EXCLUDE EVIDENCE PRODUCED OUTSIDE OF DISCOVERY2 3 ATTORNEYS ATLA JAMARA, DODGE. NEY, REATTY, SLATTERY, PFALZER TELEPHONE. (925) 939-530 IL ARGUMENT No evidence should be allowed from plaintiffs other than such evidence disclosed in response to discovery requests. This includes any testimony of evidence from undisclosed witness Howard Scott. Any attempt to introduce evidence not produced in discovery significantly prejudices this defendant in its ability to confront the evidence at the time of trial. Significant amounts of time and money have been expended by defendant in an effort to correlate the information previously provided by plaintiffs, as well as collect it through other discovery issues in the case, 10 question plaintiff's experts in connection with the present claims. This defendant would have no opportunity to prepare for cross-examination, nor would its experts have the ability to assess additional information not previously provided by plaintiffs up to this point in time. The principle purpose of discovery is to do away with “disporting theory of litigation namely. surprise at trial”; Chronicle Publishing Company v, Superior Court (1960) 54 Cal 2". 584, 591, This purpose is accomplishes by requiring the parties to comply with all applicable discovery rules prior to trial by refusing to sanction discovery abuses and to ensure that no party benefits at trial from its failure to comply with applicable discovery rules. As expressly noted in the discovery statute, the court has expressed authority at the time of trial to exclude information from evidence that was withheld during discovery (see Civil Discovery Act, Code of Civil Procedure §2016, etc.). If plaintiffs were allowed to introduce evidence that they have had relating to the presence of this defendant's product upon navy ships that decedent was serving on without producing that information to this defendant with sufficient time to conduct further discovery, including expert opinions, this defendant would be severely prejudiced by such evidence. To allow such practice would be an affront to the discovery statutes and constitute abuse of such statutes by plaintiffs. TH. CONCLUSION ‘This court should not condone plaintiff's counsel’s “hide the ball” and “trial by ambush” practices and should exclude such evidence. This defendant requests that this court order the 3 MOTION IN LIMINE TO EXCLUDE EVIDENCE PRODUCED OUTSIDE OF DISCOVERYMeNAMARA. DODGF, NFY, REATTY, SEATTERY, PFALZER, BORGES & DROTHERS LLP TELEPHONE, 925} 939-5330 exclusion of all evidence not disclosed in discovery, especially any evidence from undisclosed witness Howard Scott, and further that plaintiff's witnesses and experts not refer to said evidence. Dated: August 22, 2007 MCNAMARA, DODGE, NEY, BEATTY, SLATTERY, PFALZER, BORGES & BROTHERS LLP By: Thomas E. Pfalzer Patrick L. Moore Attomeys for Defendant Sterling Fluid Systems (USA), LLC, misnamed as Sterling Fluid Systems (Americas) Inc., {/k/a and/or Successor to Sterling Fluid Systems (U.S.A.) fk/a Peerless Pumps 4 MOTION IN LIMINE TO EXCLUDE EVIDENCE PRODUCED OUTSIDE OF DISCOVERY