Party Discovery: NANCY MARIE SCOTT et al VS. AC AND S, INC. et al

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                                Levon,

Heso & PaRKer

we

Edward R. Hugo [Bar No, 124839]
James C. Parker [Bar No. 106149]
Charles S. Park [Bar No. 161430]
BRYDON HUGO & PARKER

135 Main Street, 20" Floor

San Francisco, CA 94105
Telephone: (415) 808-0300
Facsimile: (415) 808-0333

Attorneys for Defendant
Foster Wheeler LLC

SUPERIOR COURT - STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION

NANCY MARIE SCOTT, Individually
and as Successor-in-Interest to DENZIL
SCOTT, Decedent; JOANNE MARIE
WOLFARTH; MICHAEL GERALD
SCOTT; ROBERT DAVID SCOTT;
THOMAS CARY SCOTT; MARY DENISE
SOBOLIK; and FIRST DOE through
TENTH DOE, inclusive,

Plaintiffs,
vs.

ACand§, INC,, et al.,

Defendants.

I. INTRODUCTION
Defendant FOSTER WHEELER, LLC (“Defendant”) prior to trial and prior to the
selection of a jury, hereby moves this Court in limine for an order precluding the

introduction of, any reference to or any reliance on, depositions taken in any other

actions.

Deposition testimony taken in other actions is inadmissible hearsay as offered
against defendant in the present action because it is an out of court statement offered

for the truth of the matter. (Evidence Code, § 1200.) Defendant anticipates that Plaintiff

ELECTRONICALLY
FILED

‘Superior Court of California,
County of San Francisco

AUG 22 2007
GORDON PARK-LI, Clerk

BY: WILLIAM TRUPEK
Deputy Clerk’

(ASBESTOS)
Case No. 443236

FOSTER WHEELER’S MOTION IN LIMINE
TO EXCLUDE THE USE OF DEPOSITIONS:

TAKEN IN OTHER ACTIONS (EVIDENCE
CODE §§ 1200, 1292)

[16]

Judge: Hon. Robert L, Dondero
Dept: 318

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FOSTER WHEELER'S MOTION IN LIMINE TO EXCLUDE THE USE OF DEPOSITIONS TAKEN IN OTHER
ACTIONS (EVIDENCE CODE $§ 1200, 1292 [16]Levon,

Heso & PaRKer

will argue that the prior deposition testimony is admissible pursuant to Evidence Code
§ 1292. It is not because: (1) no party to the prior action had an “interest and motive” to
cross-examine the witness in his or her deposition which was similar to the “interest
and motive” of defendant in the instant case; and (2) witness in his or her deposition
(Evidence Code § 1292(a); Gatton v. A.P. Green Services, infra; People v. Brock, infra.)

Il. | DEPOSITION TESTIMONY TAKEN IN OTHER ACTIONS IS
INADMISSIBLE HEARSAY

It is settled law that the proponent of hearsay evidence bears the burden of

showing that it falls within a hearsay exception. (People v. Woodell (1988) 17 Cal. 4th
448, 464; Gatton v. A.P. Green Services, Inc, (1988) 64 Cal. App. 4th 688.) Hearsay is

defined by Evidence Code section 1200 as follows:
(a) “Hearsay evidence” is evidence of a state that was made
other than by a witness while testifying at the hearing and that is
offered to prove the truth of the matter stated.

(b) Except as provided by law, hearsay evidence is
inadmissible.

(©) This section shall be known and may be cited as the
hearsay rule.

Deposition testimony taken in other actions “.. . is evidence of a statement
that was made other than by a witness while testifying at the hearing and that is offered
to prove the truth of the matter stated.” (Evid. Code, § 1200.) Thus it is inadmissible
unless Plaintiffs can show that it falls within a hearsay exception. (Id.; People v. Woodell,
supra, at p. 464.)

II, PRIOR DEPOSITION TESTIMONY IS INADMISSIBLE UNLESS A PARTY

TO THE PRIOR ACTION HAD AN “INTEREST AND MOTIVE” TO CROSS-

EXAMI THE WITNESS SIMILAR TO THAT OF DEFENDANT IN THIS CASE

The use of prior deposition testimony is inadmissible against Defendant pursuant

to Evidence Code §1292, which states:
(a) Evidence of former testimony is not mad inadmissible by
the hearsay rule if:

(1) The declarant is unavailable as a witness;

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FOSTER WHEELER'S MOTION IN LIMINE TO EXCLUDE THE USE OF DEPOSITIONS TAKEN IN OTHER
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(2) The former testimony is offered in a civil action;
and

(3) _ the issue is such that the party to the action of
proceeding in which former testimony was given
had the right and opportunity to cross-examine the
declarant with an interest and motive similar to that
which the party against whom the testimony is
offered has at the hearing.

(b) The admissibility of former testimony under this section is
subject to the same limitations and objection as though the
declarant were testifying at the hearing, except that former
testimony offered under this section is not subject to
objections based on competency or privilege which did not
exist at the time the former testimony was given. (1965 ch.
299.)

(See Gation v. A.P. Green Services, Inc. (1988) 64 Cal.App.4th 688.)

‘The Gatton case involved a wrongful death action brought by occupational
exposure to asbestos. (Id. at p. 691.) The complaint alleged negligence, strict liability,
enterprise liability and false representation. (Id.) Thereafter: “[t]he summary judgment
motion placed at issue the common factual element of whether alleged asbestos
exposure during [decedent's] work beginning in 1980 at the Pinole Point Steele
Company galvanizing plant (Pinole Point) in Richmond was caused by “[defendant].”
“In opposition to the motion, plaintiffs offered excerpts from two depositions.” (Id.) The
defendant “objected to the deposition as hearsay inadmissible under Evidence Code §
1292 because [the defendant] had not been a party and because no party had an interest
and motive similar to it own.” ({d.) The Honorable David A. Garcia, Judge of the
Superior Court of the City and County of San Francisco, granted defendant's motion for
summary judgment, implicitly sustaining defendant's objection to the deposition
transcript as inadmissible hearsay. (ld. at p. 692.) Thereafter, the Court of Appeals, First
Appellate Di
(Id)

ict, Division 2, independently reviewed the deposition’s admissibility.

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FOSTER WHEELER'S MOTION IN LIMINE TO EXCLUDE THE USE OF DEPOSITIONS TAKEN IN OTHER
ACTIONS (EVIDENCE CODE $§ 1200, 1292 [16]1 In analyzing the admissibility of the former deposition testimony pursuant to
2 || Evidence Code § 1292(a), the Court reasoned, in part as follows:
5 [It] was not shown that any party in Woodrow’s personal injury
action had an interest and motive similar to Green’s. It is not
4 enough, as plaintiffs argue, that all asbestos defendants would
5 have shared interest and motive of establishing that Gatton was
6 not exposed to asbestos at Pinole Point. Rather, similarity of
interest. and motive must be determined on _ practical
7 considerations, not merely the similar position of the parties in
8 the two cases. (Wahlgren v. Coleco Industries, Inc. (1984) 151 Cal
5 App. 3d 543, 546 [198 Cal Rptr. 715] concerning parallel
requirement in [693] Evidence Code § 1291.) As the court below
10 observed at the hearing, the defendants in Woodrow’s case
u would have had little or no interest in defending against the
» presence of materials furnished or installed by Green: “If
. anything they want to point fingers at A.P. Green Services in
's order to avoid their own liability. Particularly in a case where
14 Mr. Woodrow;s. . . prospects of recovery from A.P. Green, [as his
15 employerl, are limited t 0 he Workers Compensation [remedy]
Lack of similar interest and motive between the defendants there
le and Green in this case was thus a second, independently
7 sufficient, basis for ruling the evidence inadmissible....The
18 proponent of hearsay evidence bears the burden of showing it
falls within a hearsay exception (People v. Wooudell [1988] 17 Cal.
19 4th 448, 464 [71] Cal. Rptr. 2d 241, 950 P.2d 851), and the record
20 here fails to satisfy either the unavailability or interest-and-
a motive requirement of Evidence Code § 1291(a)....
» The problem is even more pronounced here, where the former
testimony is not from another trial but from a deposition. “{I]t
3 should be noted that a deposition hearing normally functions as a
24 discovery device. ... [GJiven the hearing’s is limited purpose and
25 utility, examination of one’s own client is to be avoided. At best,
such examination may clarify issues which could later be clarified
26 without prejudice. At worst, it may unnecessarily reveal a
27 weakness in a case or prematurely disclose a defense. In contrast,
a8 a trial serves to resolve any issues of liability. Accordingly, the
Iesnon 4
FOSTER WHEELER'S MOTION IN LIMINE TO EXCLUDE THE USE OF DEPOSITIONS TAKENIN OTHER
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interest and motive in cross-examination increases dramatically
Properly exercised, this right serves to clarify a litigant’s position
and my result in his or her complete exoneration . ...” A
deposition from another case differs greatly from a declaration
from the same witness saying that, if called to trial in the current
case, the witness would testify in a particular. manner on
specified subjects.
(Id. at pp. 693-696.)

Based on the foregoing analysis, the First Appellate District, Division 2, upheld
the implied ruling of Judge Garcia that the deposition was inadmissible under Evidence
Code § 1292(a). (Id. at p. 698.) The facts of the instant case are similar enough to the
facts of the Gatton case that the holding of the Gatton case is binding on this Court.

Lastly, there are a series of appellate opinions interpreting Section 1291, the
companion to Section 1292, that authorizes the introduction of prior testimony when
the party against whom the testimony is offered was a party in the prior proceeding.
Most of these are criminal cases in which the issue is whether the defendant, when he
or she was present at one type of proceeding, had a sufficient motive to cross-examine a
witness whose testimony is offered in a subsequent proceeding. Since the parties are
the same, and the factual settings are identical, the courts usually find the prior
testimony admissible.

An exception was People v. Sanders (1998) 11 Cal. 4th 475, 525-526, where the
prosecution successfully argued that the former testimony of a witness should have not
been admitted. The prior proceeding was a suppression hearing, where the issue was
whether the police officers had relied in good faith on a witness for the purpose of
obtaining the defendant's arrest warrant. The prosecution had little motive to impeach
the witness at the suppression hearing. But at trial the prosecution would have strong
motive to impeach the witness when called by the defense. “The issues at the
suppression hearing and at the trial were sufficiently distinct that the trial court could

reasonably conclude that the People laced a similar interest and motive to cross-

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FOSTER WHEELER'S MOTION IN LIMINE TO EXCLUDE THE USE OF DEPOSITIONS TAKEN IN OTHER
ACTIONS (EVIDENCE CODE $§ 1200, 1292 [16]28

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Heso & PaRKer

examine [the witness].” (Sanders, supra, 11 Cal. 4th at pp. 525-526.) The same logic
applies to the instant case.
IV. | PRIOR DEPOSITION TESTIMONY IS INADMISSIBLE UNLESS A PARTY

TO THE PRIOR ACTION HAD A “MEANINGFUL OPPORTUNITY” TO CROSS-
EXAMINE THE WITNESS.

a. THE WitNESS’S CONDITION MAY PRECLUDE “MEANINGFUL” CROSS-
EXAMINATION

Section 1292 (a)(3) specifically requires that “the party to the action or proceeding
in which the former testimony was given had [both] the right and opportunity to cross-
examine the declarant with an interest and motive similar to that which party against
whom the testimony is offered at the hearing.” The Supreme Court of California has
defined the “right and opportunity to cross-examine the declarant as a “meaningful
opportunity to cross-examine the witness.” (People v. Brock (1985) 38 Cal. 3d 180, 190-
192.)

In Brock, the Supreme Court was determining the admissibility of the former
testimony of an unavailable witness pursuant to Evidence Code § 1291(a)(2)," which

contains the identical language at issue in the instant case under § 1292(a)(3)2 “In

2 § 1291 states in full:

(a) Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant
is unavailable as a witness and:

(1) The former testimony is offered against a person who offered it in evidence in his own
behalf on the former occasion or against the successor in interest of such person; or

2) The party against whom the former testimony is offered was a party to the action or

proceeding in which the testimony was given and had the right and opportunity to cross-
examine the declarant with an interest and motive similar to that which he has at the
hearing.

(6) The admissibility of former testimony under this section is subject to the same limitations
and objections as though the declarant were testifying at the hearing, except that former
testimony offered under this section is not subject to:

(1) Objections to the form of the question which were not made at the time the former
testimony was given.

(2) Objections based on competency or privilege which did not exist at the time the former
testimony was given, (1965 ch. 299.)

2 §1292(a) Evidence of former testimony is not made inadmissible by the hearsay rule if;
(3) The issue is such that the party to the action or proceeding in which the former
testimony was given had the right and opportunity to cross-examine the declarant with an

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FOSTER WHEELER'S MOTION IN LIMINE TO EXCLUDE THE USE OF DEPOSITIONS TAKEN IN OTHER
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determining whether “the defendant had a meaningful opportunity to cross-examine
the witness in the formal proceeding” the California Supreme Court examined the
circumstances of the witness’ (Mrs. Williams’) ‘testimony in some detail” (Id. at pp.191-
192):
Her doctor testified that at the time of the hearing Mrs. Williams
“had a number of disease processes going on.” ‘The doctor also
testified he suspected the patient had metastatic cancer and he
was evaluating x-rays showing, several sclerotic lesions. Mrs.
Williams had apparently been told by her doctors shortly before
the hearing that her diseases were terminal. Mrs. Williams was
carried on a gurney into the hospital room which had been
provided for the preliminary hearing. Her doctor testified later
that she was “on quite a few medications,”. . . Mrs. Williams’
answers to the prosecutor's questions sometimes revealed signs
of disorientation and confusion, while at other times her
seemingly coherent answers were wildly inconsistent... At
this point the court called Dr. George Lampe, Mrs. Williams’
treating physician, The doctor described her condition during
[She] seemed to be very fatigued,
was moving constantly on the gurney trying to get comfortable,

the cross-examination:

looked extremely uncomfortable to me and just seemed really

almost unable to respond to questions. She had forgotten she

was even asked questions, seemed to be very fatigued.” Dr.

Lampe also testified that the synthetic opiates Mrs, Williams had

been given “may have’ affected her ability to recollect or relate

events.
(Id. at pp. 192-195.)

After reviewing the aforementioned circumstances, the California Supreme Court

concluded “that the witness’ condition precluded meaningful cross-examination” and

that, therefore, “the trial court erred in admitting [the witness’ former testimony] at

trial.” (Id. at pp. 196-197.) If in the instant case, the condition of the witness precluded

interest and motive similar to that which the party against whom the testimony is offered
has at the hearing.
(Emphasis added.)

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FOSTER WHEELER'S MOTION IN LIMINE TO EXCLUDE THE USE OF DEPOSITIONS TAKEN IN OTHER
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“meaningful cross-examination” the testimony is inadmissible in the instant case against
defendant. (Brock at p. 220; Evidence Code § 1292(a)(3).)

b, THE TIMING OF THE WITNESS’S DEPOSITION MAY PRECLUDE
MEANINGFUL EXAMINATION

Obviously, a “meaningful opportunity to cross-examine the witness” requires an
adequate opportunity to investigate the facts of the case and to prepare a cross-
examination. If the defendants to the prior action were denied that right by being forced
to participate in the deposition without adequate opportunity to prepare, that testimony
is inadmissible against defendant in the instant case. (Brock, supra; Evidence Code § 1292
(ay3).)

v. CONCLUSION

Cross-examination has been described as “the greatest legal engine ever
invented for the discovery of the truth.” (California v. Green (1970) 399 US. 149, 158
quoting Wigmore, Evidence, § 1367.) It is axiomatic that the right of cross-examination
is an essential safeguard of a fair trial. (Pointer v. Texas (1965) 380 U.S. 400, 405-407;
Douglas v. Alabama (1965) 380 U.S. 415, 418-420.) Thus, “[t]he principal objection to the
use of hearsay evidence is that the declarant is not subject to cross-examination at trial.”
(Law Commission Comment to Evidence Code § 1200; Parker's California Courtroom
Evidence, 4th ed. P. 21-4.) In the instant case, the “declarant” happens to be an
important witness at trial, and defendant have been denied the right of cross-
examination.

Plaintiff herein will be unable to show that the witnesses’ deposition testimony
falls within an exception of the hearsay rule because it does not. Itis inadmissible
pursuant to Section 1292 because both:

1. No party had an “interest and motive” to cross-examine the witness in his

or her deposition which was similar to the “interest and motive” of defendant in the

instant case; and

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FOSTER WHEELER'S MOTION IN LIMINE TO EXCLUDE THE USE OF DEPOSITIONS TAKEN IN OTHER
ACTIONS (EVIDENCE CODE $§ 1200, 1292 [16]Levon,

2. No party to the prior action had “a meaningful opportunity to cross-
examine” the witness in his or her deposition due to both: (1) his or her physical and
mental condition; and (2) the timing of his deposition,

Thus, Defendant moves this Court In Limine for an Order precluding the intro-
duction of any reference to, and any reliance on, deposition testimony taken in other
cases. (Evid. Code, §§ 1200, 1291, 1292; Gatton v. A.P. Green Services, supra; People v. Brock,
supra.) To be crystal clear, Defendant requests that the Court order counsel for Plaintiff
to refrain from introducing or referring to the deposition testimony and requiring
counsel to affirmatively instruct any witnesses to refrain from introducing, referring, to,
or relying on any such deposition testimony.

Dated: August 22, 2007 BRYDON HUGO & PARKER

By: — /s/ Charles S. Park
Edward R. Hugo
James C. Parker
Charles 8. Park
Attorneys Defendant
FOSTER WHEELER LLC

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FOSTER WHEELER'S MOTION IN LIMINE TO EXCLUDE THE USE OF DEPOSITIONS TAKEN IN OTHER
ACTIONS (EVIDENCE CODE $§ 1200, 1292 [16]