Party Discovery: LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al

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207630.1 107728787

RICHARD D. DUMONT (SBN 107967)

rdumont@selmanbreitman.com

PAUL | GAMBA (SBN 136097) ELECTRONICALLY

R amnba@selmanbreitman.com FILED

LMAN BREITMAN LLP Superior Court of California,

33 New Montgomery, Sixth Floor County of San Francisco

Felephones (41s) 979-0400 OCT 29,2010
‘elephone: |

Facsimile: 4 1 33 979-2099 OF ae Gotetiy

Deputy Clerk
Attorneys for Defendant
LAMONS GASKET COMPANY

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION

LOUIS CASTAGNA, Case No. CGC-07-274230

Plaintiff, MOTION IN LIMINE TO EXCLUDE

USE OF ADMISSIONS,

v. INTERROGATORY RESPONSES

AND DEPOSITIONS TAKEN IN.

ASBESTOS DEFENDANTS (BP), er HER ACTIONS - Motion in Limine
0.

Action Filed: June 6, 2007
Trial Date: October 29, 2010

Defendant.

L INTRODUCTION

Defendant LAMONS GASKET COMPANY (hereinafter "Lamons") hereby moves
this court in limine, prior to trial and before the selection of a jury, for an Order excluding
from this trial all discovery responses and/or deposition testimony from other actions,
including those involving Lamons, and directing plaintiff, plaintiff's counsel and all
witnesses to refrain from references to same.

I. ARGUMENT

A. Responses to Requests for Admissions are Inadmissible Except in the
Action in Which They Were Given

Code of Civil Procedure section 2033.401 states that responses to requests for

admissions cannot be used in any proceeding other than in the pending action. Code Civ.

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MOTION IN LIMINE TO EXCLUDE USE OF ADMISSIONS, INTERROGATORY RESPONSES AND
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207630.1 1077.28787

Proc. § 2033.410(b). This prohibition is absolute and without exception. Despite this clear
and absolute prohibition, defendant predicts that plaintiffs in this action will seek to
introduce evidence of defendant's responses to requests for admissions from other
proceedings. Following Section 2033.401, this Court should exclude alJ such evidence

without exception.

B. Responses to Interrogatories are Inadmissible Except in the Action in
Which They Were Given

Code of Civil Procedure Section 2030.410 provides that a party may use
interrogatory responses against the responding party “at the trial or any other hearing in the
action." On its face, Section 2030.410 is limited to the action in which the responses were
provided. The statute makes no provision for the use of interrogatory responses in different
actions. Section 2030.410 should be compared to the statutes governing depositions and
their admissibility which specifically provide for the limited use of depositions from prior
separate actions. See Code Civ. Proc. § 2025.620, subs. (g), Evid. Code §§ 1291, 1292
(discussed and set forth infra at Section II.C.).

Contrary to plaintiff's contention that interrogatory responses from other actions
may be used to the same extent as depositions, the Code of Civil Procedure very clearly
differentiates between these two forms of discovery for purposes of admissibility in other
actions. Code Civ. Proc. §§ 2030.410, 2025.620, subs. (g). Plaintiffs argument that
judicial economy will benefit from the admission of interrogatory responses from former
actions is therefore of no effect and is also without merit: propounding interrogatories in
individual cases is not costly, time consuming, nor a burden on the discovery process, In
other words, no compelling reason exists to allow their use in multiple actions.
Interrogatory responses from other actions are simply inadmissible hearsay and must be

excluded in the present action.

Cc. Deposition Testimony is Inadmissible in Subsequent Actions Unless
Strict Requirements, not Satisfied in This Case. Have Been met

The Code of Civil Procedure and the Evidence Code impose strict limitations on the

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MOTION IN LIMINE TO EXCLUDE USE OF ADMISSIONS, INTERROGATORY RESPONSES AND
DEPOSITIONS TAKEN IN OTHER ACTIONS - MIL NO. 342
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207630... 1077.28787

admissibility of depositions taken in prior actions; such depositions are inadmissible
hearsay unless they qualify within applicable limited statutory exceptions. These
exceptions and their limitations are set forth in Code of Civil Procedure Section 2025.620,
Subdivision (g), and Evidence Code Sections 1291 and 1292. None of the exceptions apply
in the present action.

L. The Requirements of Code of Civil Procedure Section 2025.620,
Subdivision (g), Are Not Satisfied In This Case

Depositions from prior actions may be admitted under Code of Civil Procedure
Section 2025.620, Subdivision (g), only if two conditions are met. First, the subject
matter must be the same in the subsequent action as in the action in which the deposition
was taken. Second, the subsequent action must be brought between the same parties, or
their representatives or successors in interest. Jd Since plaintiff was not a party to the
prior case from which he seeks to admit deposition testimony, these requirements are not
met in the present case and § 2025.620, Subdivision (g), is inapplicable.

2. The Requirements of Evidence Code Section 1291 Are Not
Satisfied In This Case

Evidence Code sections 1291 and 1292 state the conditions under which testimony,
including deposition testimony, from prior actions may be admitted despite its basic
character as hearsay. Evidence Code section 1291 applies when the evidence is offered
against a party to the prior action. To qualify as admissible evidence under section 1291,
the proponent of the evidence must show, in addition to its opponent having been a party
to the previous action, that: a) the deponent is unavailable as a witness, and b) the party
against whom the deposition is offered itself offered the deposition in evidence in his or
her own behalf in the former proceeding, or c) the party against whom the evidence is
offered had the right and opportunity in the previous action or proceeding to cross-examine
the deponent with a similar motive and interest. Jd These conditions are not satisfied in
this case, and therefore the deposition testimony sought to be admitted from previous

actions is barred.

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MOTION IN LIMINE TO EXCLUDE USE OF ADMISSIONS, INTERROGATORY RESPONSES AND
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207630.1 107728787

a. The Deponent Must Be Unavailable To Testify In The
Present Action

A deponent is unavailable to testify if he is dead, he is suffering from a physical or
mental infirmity, the court is unable to compel his attendance, or the proponent of his
statement has exercised reasonable diligence but has been unable to procure his attendance
by the court's process. Evid. Code § 240. In the present action, plaintiff has made no
showing that these requirements are satisfied.

b. The Party Against Whom The Evidence Is To Be Offered
Must Also Either Have Offered It In His Or Her Own
Behalf In The Former Proceeding

Plaintiff has made no showing that defendant offered the deposition in its own
behalf in the former proceeding. In fact, plaintiff has not even shown that defendant was a
party to the former proceeding. Plaintiff is therefore barred under Evidence Code section
1291(a)(1) from offering the deposition testimony against defendant in the present case.

c Or, Must Have Had The Right And Opportunity To Cross
Examine The Depenent With A Similar Motive And
Interest

Plaintiff must be precluded from relying on prior deposition testimony where the
defendant's interest and motive were unrelated to the present action. For example, the
interest and motive of a defendant in the deposition of a defense-related witness is
inevitably different from the same party's interest and motive in connection with trial
testimony. This is doubly true when the witness in the earlier deposition was the party's
own expert. It is therefore settled law that, because the defendant's attorney will not have
had similar interest and motive, the deposition of a defendant's witness from another action
is inadmissible in a later action against that party. In Wahlgren v. Coleco Industries, Inc.
(1984) 151 Cal. App.3d 543, the trial court excluded the deposition testimony given in an
earlier action of officers of the defendant Coleco, against whom the testimony was offered
in the second action. Reviewing this exclusion, the Court of Appeal first noted that “a

determination of similarity of interest and motive ... should be based on practical

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considerations." Jd. at 546, quoting the Legislative Committee Comments to Evidence
Code § 1291, Subdivision (a)(2)). The Court then went on to observe that,

[A] deposition hearing normally functions as a discovery

device. All respected authorities, in fact, agree that given the

hearing’s limited purpose and utility, examination of one's own

client is to be avoided. At best, such examination may clarify

issues which could later be clarified without prejudice. At

worst, it may unnecessarily reveal a weakness in a case or

prematurely disclose a defense.

In contrast a trial serves to resolve any issues of liability. Accordingly, the interest
and motive in cross-examination increases dramatically. Properly exercised, this right
serves to clarify a litigant’s position and may, result in his or her complete exoneration.
Wahlgren, supra, 151 Cal.App.3d at 546-47. On the basis of these “practical differences
between each of the proceedings involved" the Wahlgren court upheld the trial court's
exclusion of the deposition testimony of Coleco’s witnesses.

The same factors weigh against this court admitting the deposition testimony of
defense experts in previous asbestos cases. In those previous instances, for precisely the
reasons recognized by the court in Wahlgren, defendant had little or no interest or motive,
and certainly not a similar interest and motive, to examine the witnesses in their
depositions. As a result, plaintiff cannot possibly demonstrate that the requirements of
section 1291, Subdivision (a){2), have been met, and the deposition testimony of all
defense witnesses in prior asbestos-related actions should be excluded.

Moreover, the requisite fair opportunity to cross-examine with similar interest and
motive will not be found when there is a disparity of issues between the present and former
actions. See Rutledge v. Electric Hose & Rubber Co, (9th Cir. 1975) S11 F.2d 668, 675-76
(applying California law). One possible basis for disparity is differences in the allegations
underlying the cases. In Rutledge, for example, some allegations in the earlier action were
absent in the later action, and vice versa; the resulting disparity of issues rendered the
testimony from the earlier action inadmissible. /d. at 676.

The disputed issues and allegations in different asbestos cases are rarely similar.

Products liability law varies from jurisdiction to jurisdiction, and legal theories vary from

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207630.1 107728787

case to case even in the same jurisdiction. As a result, an issue or fact that is significant in
one case may lack legal significance in another. Causation factors also differ greatly
between cases. The alleged asbestos-related ailment, the source and amount of exposure,
and even the type of fiber, vary considerably, as do confounding factors and possible
alternate causes of the plaintiff's injuries. Facts of great importance in one case may have
negligible import in another. As a result, the interest and motive for cross-examination in
an earlier asbestos case is rarely similar to that in a later case. Many or all of the above
disparities exist between this case and the prior actions from which plaintiff seeks to
introduce unrelated depositions. Those depositions are therefore inadmissible in this
action.

d. _—_— Plaintiff Has Not Met The Requirements Of Section 1292
In The Present Case

Evidence Code Section 1292 governs the admissibility of depositions from previous
actions in which the party against whom the deposition is offered was not a party to the
former proceeding. The requirements of Section 1292 are otherwise identical to those of
Section 1291. In addition to showing that the deponent is unavailable, plaintiff must prove
that a party to the former proceeding had the right and opportunity to cross-examine the
deponent with a similar motive and interest as the defendant in the present action.

Given the many variables in toxic tort litigation plaintiff has not and cannot
demonsttate that the statutory requirements are satisfied with respect to the deposition
testimony plaintiff seeks to admit before this Court. As a result, the testimony should be
excluded.

Til. CONCLUSION

For the foregoing reasons, defendant moves this court for an order:

1. excluding from this trial all interrogatory responses from earlier actions;
2. excluding from this trial all responses to requests for admissions from earlier
actions;
3. excluding from this trial all deposition testimony given in previous actions;
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MOTION IN LIMINE TO EXCLUDE USE OF ADMISSIONS, INTERROGATORY RESPONSES AND
DEPOSITIONS TAKEN IN OTHER ACTIONS - MIL NO, 341 and
2 4, directing plaintiff, plaintiff's counsel and all witnesses to refrain from
3 | references to same.
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5 | DATED: October 28, 2010 SELMAN BREITMAN LLP
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7 By:_/s/ Paul J_ Gamba
RICHARD D. DUMONT
8 PAUL J. GAMBA
Attomeys for Defendant
9 LAMONS GASKET COMPANY
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PROOF OF SERVICE BY ELECTRONIC TRANSMISSION

Louis Castagna v. Asbestos Defendants (BP)
San Francisco Superior Court Case No. CGC-07-274230
Defendant: LAMONS GASKET COMPANY
STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO

lam employed in the County of San Francisco, State of California. [ am over the
age of 18 years and am not a party to the within action; my business address is 33 New
Montgomery, Sixth Floor, San Francisco, CA 94105.

On the date shown below, I electronically served the following document(s) via
LexisNexis File & Serve described as MOTION IN LIMINE TO EXCLUDE USE OF
ADMISSIONS, INTERROGATORY RESPONSES AND DEPOSITIONS TAKEN
IN OTHER ACTIONS- -Motion in Limine No, 34 on the recipients designated on the
Transaction Receipt located on the LexisNexis File & Serve website.

I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.

Executed on October, 2010, at San Francisco, California.

LW _-

oe Efrod
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MOTION IN LIMINE TO EXCLUDE USE OF ADMISSIONS, INTERROGATORY RESPONSES AND
DEPOSITIONS TAKEN IN OTHER ACTIONS - MIL NO. 34