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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JEFFERY J. FADEFF, ESQ. (SBN: 111497) MEGAN W. WENDELL, ESQ. (SBN: 238423) ELECTRONICALLY BASSI, MARTINI, EDLIN & BLUM Lur FILE 351 California Street, Suite 200 ‘Superior Court of Cfornia, San Francisco, cA HI 06 County of San Frfncisco ‘elephone: (415) 397- Facsimile: (415) 397-1339 AUG 20 2907 GORDON PARKILI, Clerk Attomeys for DEFENDANT BY: WILLIAM TRUPEK J.T. THORPE & SON, INC. Dd puty Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO UNLIMITED CIVIL JURISDICTION NANCY MARIE SCOTT, Individually and as CASENO. CGC-05-443236 Successor-in-Interest to DENZIL SCOTT, Decedent; JOANE MARIE WOLFARTH, DEFENDANT J.T. THORPE & SON, MICHAEL GERALD SCOTT: ROBERT INC.’S MOTION IN LIMINE TO DAVID SCOTT; THOMAS CARY SCOTT; EXCLUDE EVIDENCE NOT MARY DENISE SOBOLIK; and FIRST DOB PREVIOUSLY PRODUCED IN THIS through TENTH DOE, Inclusive, Plaintiffs, Motion in Limine No. 2 vs. Acand$, INC., et al., Defendants. I, INTRODUCTION Defendant J.T. THORPE & SON, INC. (“JTTS”) moves this Court in limine to prohibit Plaintiff NANCY MARIE SCOTT (“PLAINTIFE”) from introducing or attempting to introduce at trial any evidence not previously produced to JTTS that JTTS is liable to PLAINTIFF ona theory that JITS directly exposed decedent Denzil Scott to asbestos-containing products that ITTS either removed or installed. PLAINTIFF has not produced any evidence to support this theory against JTS and to allow PLAINTIFF to produce evidence at trial that was not produced during the regular course of discovery would create an undue surprise und would violate JTTS’ right to a fair trial. This shall include a witness that has not been previously deposed before trial. spend 1 DEFENDANT 17. THORPE & SON, INC."S MOTION IN LIM/INE YD EXCLUDE EVIDENCE NOT PREVIOUSLY PRODUCED IN THIS casi STATEMENT OF FACTS PLAINTIFF alleges that the decedent Denzil Scott was exposed to asbestos fibers from asbestos-containing products either installed, disturbed or removed by JTTS at some point during his work history. However, throughout the course of regular discovery, PLAINTIFF has not produced any evidence to JTTS that inculpates JTTS in this theory of liability. WI. ARGUMENT The purposes of California's discovery statutes are, among other things, to expedite and facilitate preparation for trial; to prevent delay; and to safeguard against surprise. The same is ‘true when a court requires a pre-trial disclosure of evidence on a plaintiff's different theories of liability. See Beverly Hospital v. Superior Court, 19 Cal. App. 4th 1289, 1294 (1994); Greyhound Corp v. Superior Court, 56 Cal.2d 355, 376 (1961). While these cases deal with failure to produce evidence and to identify witnesses in discovery, the same policy reasons for requiring such disclose applies when a court orders the Gisclosure, In this case, PLAINTIFF failed to produce any evidence to support his theory either in informal discovery o: in response to the General Orders. These cases should conirol and, as a result, this Court should prohibit PLAINTIFF from producing any evidence at trial that was not previously produced to JTTS. The Civil Discovery Act provides that a court, for good cause shown, “may make any order that justice requires to protect any party from tinwarranted annoyance, embarrassment, or oppression, or undue burden and expense. CAL, CIV, PROC. CoDE § 2030.090 (West 2007). Hence, to be consistent with the purposes of the Discovery Act, a court may issue an order barring the testimony of a witness whose name was deliberately excluded by a party when required to disclose the identify of the witness. See Thoren v. Johnston & Washer, 29 Cal. App. 3d 270, 274-76 (1972) (witness whose identity was willfully omitted in an interrogatory response may be barred from testifying). In Thoren, the the plaintiff sued some subcontractors for an injury sustained while he worked at a site as a carpenter. The defendants served interrogatories upon the plaintiff, One inlerrogatory asked for a list of all witnesses of his accident. eter 2 DEFENDANT J.T. THORPE & SON, INC.'S MOTIGN 277 LININE TO EXCLUDE EVIGENCE NOT PREVIOUSLY PRODUCED IN THIS CASE,Car anneun ‘The plaintiff listed one individual. At trial, however, plaintifP's counsel named another person who was to testify at trial regarding the accident. The defendants sought to exciude this new witness” testimony at trial. The trial court found that the new witness was a union Tepresentative who referred the case to plaintiff's attomey. In addition, the only reference to the new witness was during plaintiff's deposition, where plaintiff testified that the new witness took pictures of the scene. Based upon these facts, the trial court found that omission of the witness? name was willful and barred his testimony. Plaintiff appealed. The court of appeal affirmed the trial court’s ruling that the new witness’ testimony should be barred. The court noted that where a party is served with an interrogatory asking the names of witnesses to an occurrence then known to him but deprives the other party of that information by a willfully false response, then the omission subjects the other party to surprise at trial, Thoren, 29 Cal. App. 3d at 274. ‘The court also found that a wilifilly false answer is equivalent to providing no answer, so preclusion of such testimony as a sanction is warranted. id. In this case, PLAINTIFF was obligated to provide ali documents related to his employment or medicai records. Though PLAINTIFF produced evidence, he failed to produce any evidence that supports their theory of liability against SITS. PLAINTIFF should not be aliowed to now suddenly put forth evidence against JITS at trial. JTTS would be severely prejudiced if PLAINTIFF is allowed to do so. JTTS would not have time to investigate the basis of this new evidence and to rebut it. This would be a classic trial by ambush where a plaintiff failed to disclose evidence despite many opportunities to do so and then at trial produced the evidence upon which they intend to rely. Such trial by ambush would deny JTTS a fair trial. i We a a HE S209 3 DEFENDANT 1.7. THORPE & SON, INC."S MOTION iW ZiMINE TO EXCLUDE EVIDENCE NOT PREVIOUSLY PRODUCED IN THIS. “ASEI. CONCLUSION For all of the foregoing reasons, JTTS respectfully requests that this Court grant its motion in limine and prohibit PLAINTIFF from introducing or attempting to introduce any evidence that was not previously disclosed to JTTS.. Dated: August 20, 2007 BASSI, MARTINI, EDLIN & BLUM LLP By:_/s/ MEGAN W. WENDELL Megan W. Wendell, Esq. (SBN: 238423) Attomeys for Defendant 4.T. THORPE & SON, INC. BASSI, MARTINI, EDLIN & BLUM LP 351 California Street, Suite 200 San Francisco, CA 94104 Telephone: (415) 397-9006 seemept 4 DEFENDANT J.T. THORPE & SON, INC."S MOTION IN L/MINE TO EXCLUDE EVIDENCE NOT PREVIOUSLY PRODUCED IN THISSemi aAuneune Re: Nancy Marie Scott, etc.. et al. (WD: Denzit Scott) v. AcandS, Inc., et al. San Francisco County Superior Court, Case No. CGC-05-443236 PROOF OF SERVICE - ELECTRONI SMISSK STATE OF CALIFORNIA/COUNTY OF San Francisco Iam a citizen of the United States and an employee in the County of San Franeisco. Tam over the age of eighteen (18) years and not a party to the within action, My business address is BASSI, MARTINI, EDLIN & BLUM LLP, 351 California Street, Suite 200, San Francisco, California 94104, On the date executed below, ! electronically served the document(s) via LexisNexis File & Serve, described below, on the recipients designated on the Transaction Receipt located on the LexisNexis File & Serve website. DEFENDANT J.T. THORPE & SON, INC.’S MOTION IN LIMINE T0 EXCLUDE EVIDENCE NOT PREVIOUSLY PRODUCED IN THIS CASE ‘Motion in Limine No. 2 on the following parties: SEE SERVICE LIST PROVIDED BY LEXIS-NEXIS I declare under penalty of perjury that the foregoing is true and correct and that this document is executed on August 20, 2007, at San Francisco, California. /s/ ADELA AREVALO ADELA AREVALO 5 DEFENDANT 17. THORPE & SON, INC.'S MOTION ZY LIMINE TO EXCLUDE EVIDENCE NOT PREVIOUSLY PRODUCED INTHIS CASE