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  • LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al ASBESTOS document preview 
						
                                
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                                BRYDON
Huco & PARKER,
38 Man Steer
20 Foor:

Sen Francisco, CA 94105

Edward R. Hugo [Bar No. 124839]
James C. Parker [Bar No. 106149]
Shelley K. Tinkoff [Bar No. 187498]

BRYDON HUGO & PARKER ELECTRONICALLY
135 Main Street, 20th Floor FILED
San Francisco, CA 94105 Superior Court of California,
‘Telephone: (415) 808-0300 County of San Francisco
Facsimile: (415) 808-0333 OCT 01 2010
Email: tinkoff@bhplaw.com Clerk of the Court

BY: JUANITA D. MURPHY
Attorneys for Defendant Deputy Clerk
FOSTER WHEELER LLC

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

LOUIS CASTAGNA, (ASBESTOS)

Case No, CGC-07-274230
Plaintiff,
DEFENDANT FOSTER WHEELER LLC’S
vs. MOTION IN LIMINE TO EXCLUDE
EVIDENCE, WITNESSES, AND
ASBESTOS DEFENDANTS (B“P), DOCUMENTS NOT DISCLOSED IN
PLAINTIEF’S RESPONSES TO FOSTER
Defendants. WHEELER LLC’S DISCOVERY

(10]

L INTRODUCTION

Defendant FOSTER WHEELER LLC (“Defendant”) hereby moves for an order i
limine excluding the introduction of any “new” product identification evidence, including
any documents and/or fact witnesses not properly disclosed during discovery. Because
discovery has closed, Defendant will be prejudiced if Plaintiff is allowed to introduce
new claims and/or evidence that were not disclosed previously in response to
Defendant's written discovery to Plaintiff. Indeed, if this motion is not granted, then the
Court will only be rewarding Plaintiff's failure to fairly disclose evidence and witnesses

in the pretrial discovery phase of this case.

1

DEFENDANT FOSTER WHEELER LLC’S MOTION IN LIMINE TO EXCLUDE EVIDENCE, WITNESSES,
AND DOCUMENTS NOT DISCLOSED IN PLAINTIFF'S RESPONSES TO FOSTER WHEELER LLC’S

MIECOUERY Mat1 I. LEGAL ARGUMENT

2 The purpose of discovery is to eliminate unfair surprise at trial. As described in

3 |] several cases, one of the principal purposes of discovery is to do away with the sporting
4 || theory of litigation - meaning, surprise at trial. (Williams v. Volkswagenwerks (1986) 180

5 || Cal-App.3d 1244, 1254-1255.) By removing the “game” element from trial preparation,

6 || the discovery statutes allow parties to obtain the evidence necessary to evaluate and

7 || resolve disputes before the trial begins. (Greyhound Corp. v. Superior Court (1961) 56

8 |; Cal.2d 355, 376.)

9 Evidence and witnesses not disclosed during discovery should be excluded at trial
10 |} to prevent the prejudice resulting from undue surprise. Where a party attempts to

IL || introduce evidence that was not identified or produced in discovery, the court has the
12 || power to exclude such evidence. (Pate v. Channel Lumber Co, (1997) 51 Cal.App.4* 1447,
13 || 1455; see Deeter v, Angus (1986) 179 Cal App.3d 241, 255 [exclusion of audiotape not

14 || provided in responding to discovery requests]; Thoren v. Johnston & Washer (1972) 29

15 }) Cal. App.3d 270, 273 [exclusion of witnesses not disclosed in discovery responses].) No
16 || prior court order is required before the trial court may exclude such documents or other
17 || physical evidence. (Pate, supra, at p. 456.)

18 Consistent with the goals of discovery and the power granted to it, the Court

19 || should also exclude any fact witnesses who were not disclosed during the discovery

20 || phase of this case, also any witnesses for whom Plaintiff's discovery responses provided
21 || no information that would enable defendants to locate them. Courts have excluded the
22 |) testimony of undisclosed fact witnesses where defendants’ counsel “should have known”
23 || of a witnesses’ existence. (Thoren v. Johnston & Washer (1972) 29 Cal.App.3d 270.) In

24 || Thoren, the court held that the trial court had authority (under previous Code Civ. Proc,
25 |; §2019(b)(1)) to make any order to protect a party or witness from annoyance,

26 || embarrassment or oppression, and to exclude the testimony of a witness whose name

27 || was willfully omitted from the answer to an interrogatory. The court noted that binding

28 |) a party to its interrogatory answers eliminates surprises at trial, furthering the purpose of

BRYDON

HuGo & PARKER 2
sna Smee DEFENDANT FOSTER WHEELER LLC'S MOTION IN LIMINE TO EXCLUDE EVIDENCE, WITNESSES,
Sen Francisco, CA 4105, AND DOCUMENTS NOT DISCLOSED IN PLAINTLEF’S RESPONSES TO FOSTER WHEELER LLC’S

TIGCOVERY [AtID WA RK

BRYDON

Huo & PARKER
135 MACY Sten”
20" FLonR
San Francisco, CA 94105

discovery. Other statutes also emphasize this goal. For example, Code of Civil
Procedure section 2023.030(c) provides the court with authority to exclude evidence not
disclosed before trial. Similarly, a party failing to respond to a demand to exchange
expert witness lists may not call unlisted expert witnesses to testify. (Code Civ. Proc.,
§2034.300.)

Of course, a conscious failure to disclose a fact witness also is sufficient cause to
exclude that witness's testimony. “A willful failure does not necessarily include a
wrongful intention to disobey the discovery rules. A conscious or intentional failure to
act ... is sufficient to invoke a penalty.” (Sauer v. Superior Court (1987) 195 Cal.App.3d
213, 227-228.) As in Thoren and Sauer, the omission of witnesses from Plaintiff's discovery
responses should preclude their “surprise” appearance at trial.

Tl. CONCLUSION

In preparing for trial, Defendant has relied upon the claims of exposure,
information, documents and other matters properly obtained during discovery.
Consequently, at trial, Defendant would be substantially prejudiced if Plaintiff were
allowed to present matters not disclosed in the discovery process before trial.

Thus, Defendant requests that this Court issue an order in limine excluding any
new evidence, witnesses or documents not previously disclosed during discovery in

order to avoid surprise and undue prejudice.

Dated: September 30, 2010 BRYDON HUGO & PARKER

By: /s/ Shelley K. Tinkoff
Edward R. Hugo
James C. Parker
Shelley K. Tinkoff
Attorneys for Defendant
FOSTER WHEELER LLC

3

DEFENDANT FOSTER WHEELER LLC’S MOTION IN LIMINE TO EXCLUDE EVIDENCE, WI''NESSES,

AND DOCUMENTS NOT DISCLOSED IN PLATINTIFE’S RESPONSES TO FOSTER WHEELER LLC’S
TIRCOVRRY F101