On June 06, 2007 a Party Discovery was filed involving a dispute between Castagna, Louis, and Advocate Mines Limited, Albay Construction Company, All Asbestos Defendants, Allis-Chalmers Corporation Product Liability Trust, American Conference Of Governmental Industrial, American Conference Of Governmental Industrial Hyg, American Standard, Inc., Ameron International Corporation, A.O. Smith Corporation, Asbestos Defendants, Asbestos Manufacturing Company, Auto Friction Corporation, Auto Specialties Manufacturing Company, Baugh Construction Company, Bechtel Corporation, Bell Asbestos Mines Ltd., Borgwarner Morse Tec, Inc., Brassbestos Brake Lining Company, Bridgestone Firestone North American Tire, Llc, Briggs & Stratton Corporation, Bucyrus International, Inc., Caterpillar Inc., Cbs Corporation, A Delaware Corporation, Chevron Products Company, Chevron U.S.A. Inc., Chicago Bridge & Iron Company,, Chrysler Llc Fka Daimlerchrysler Company Llc,, Conocophillips Company, Consolidated Insulation, Inc., Contra Costa Electric, Inc., Copeland Corporation, Copeland Corporation, Llc Fka Copeland Corporation, Crane Co., Csk Auto, Inc., Daimlerchrysler Company Llc, Formerly Known As, Daimlerchrysler Corporation, Dana Corporation, Dillingham Construction N.A., Inc., Does 1-8500, Douglass Insulation Company, Inc., Durametallic Corporation, Eaton Corporation, Eaton Electrical Inc., Elliott Company,, Elliott Turbomachinery Co., Inc., Emsco Asbestos Company, Fibre & Metal Products Company, Fibre & Metal Products Company, Inc., Fisher Controls International Llc, Fmc Corporation, Fmc Corporation-Chicago Pump, Forcee Manufacturing Corp., Ford Motor Company, Foster Wheeler Llc, Garlock Sealing Technologies, Llc, Gate City Plumbing & Heating, Gatke Corporation, General Electric Company, General Motors Corporation, Genuine Parts Co., Genuine Parts Company, Henry Vogt Machine Co., H. Krasne Manufacturing Company, Honeywell International Inc.,, Hopeman Brothers, Inc., Imo Industries Inc., Ingersoll-Rand Company, Interlake Steamship Co., Johnson Controls, Inc., J.T. Thorpe & Son, Inc., Kaiser Gypsum Company, Inc., Kelly-Moore Paint Company, Inc., Lamons Gasket Company, Landsea Holding Company, Lasco Brake Products, Lear Siegler Diversified Holdings Corp., Lindstrom & King Co., Inc., L.J. Miley Company, Maremont Corporation, Metropolitan Life Insurance Company, Molded Industrial Friction Corporation, Morton International, Inc., National Automotive Parts Association, National Transport Supply, Inc., Nibco Inc., Oakfabco, Inc., Owens-Illinois, Inc., Paccar Inc., Pacific Gas & Electric Company, Pacific Mechanical Corporation, Parker-Hannifin Corp., Performance Mechanical, Inc., Plant Insulation Company, Pneumo Abex Llc, Quintec Industries, Inc., Rapid-American Corporation, Red-White Valve Corporation, Republic Supply Company, Riley Power Inc., Riley Power, Inc., Erroneously Sued As Babcock, Riteset Manufacturing Company, Rockwell Automation, Inc., Rossendale-Ruboil Company, Santa Fe Braun, Inc., Schlage Lock Company, Scott Co. Of California,, Sequoia Ventures Inc., Shell Oil Company, Silver Line Products, Inc., Southern Friction Materials Company, Special Electric Company, Inc., Special Materials, Inc.-Wisconsin, Standard Motor Products, Inc., Standco, Inc, Sta-Rite Industries, Llc, Stuart-Western, Inc., Swinerton Builders Fka Swinerton & Walberg Co., Taco, Inc., Temporary Plant Cleaners, Inc., Terry Corporation Of Connecticut, Terry Steam Turbine Co., The Budd Company, The Dow Chemical Company, The Industrial Maintenance Engineering Contracting, The William Powell Company, Thomas Dee Engineering Company, Timec Company, Inc., Tosco Refining Company, Inc., Trane Us, Inc., Triple A Machine Shop, Inc., Tyco International, Underwriters Laboratories, Inc., Uniroyal Holding, Inc., Universal Friction Materials Company, Unocal Corporation, U.S. Spring & Bumper Company, Warren Pumps, Llc, Wheeling Brake Block Manufacturing Company, Yarway Corporation, Zurn Industries, Llc, Formerly Known As Zurn, for civil in the District Court of San Francisco County.
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CO © NY DW RB WB Dm NY YP Be N NR NY Re ewe eB we et MAA BO YH |= SF Se RU AaE BH FS 28 LANKFORD CRAWFORD MORENO LLP ATTORNEYS ATLAW PAUL V. LANKFORD (State Bar No. 181506) PAUL LANNUS (State Bar No. 192551) LANKFORD CRAWFORD MORENO LEP 1850 Mt. Diablo Blvd., Suite 600 Walnut Creek CA 94596 Telephone: 925.300.3520 Facsimile: 925,300,3386 Attorneys for Defendant FORD MOTOR COMPANY ELECTRONICALLY FILED Superior Court of California, County of San Francisco JAN 12 2011 Clerk of the Court BY: ALISON AGBAY Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO SAMUEL LEAL, *Plaintiff, v. ASBESTOS DEFENDANTS (BP), Defendants. LOUIS CASTAGNA, Plaintiff, Vv. ASBESTOS DEFENDANTS (BP), Defendants. ASBESTOS BRAYTON GROUP 536 CASE No. CGC-08-274807 Case No. CGC-07-274230 DEFENDANT FORD MOTOR COMPANY’S MorTIon IN LIMINE To EXCLUDE UNDISCLOSED WITNESSES AND EXPERT WITNESSES NOT MADE AVAILABLE FOR DEPOSITION [MIL #21] * The use of the term “plaintiff* as used herein refers to the plaintiff in a personal injury action and the decedent in a wrongful death action; and the use of “plaintiff” shall refer to both plaintiff in the singular and plural, as appropriate, -1- ALANKFORD CRAWFORD MORENO LLP. ATTORNEYS ATLAW GARY COATES, Plaintiff, CaSE No. CGC-08-274784 v. ASBESTOS DEFENDANTS (B“*P), Defendants. CLEM FITZHUGH, Caseé No. CGC-08-274645 Plaintiff, v. ASBESTOS DEFENDANTS (BP), Defendants, DEFENDANT ForD Motor CoMPANy’s Motion IN LIMINE TO EXCLUDE UNDISCLOSED WITNESSES AND EXPERT WITNESSES NOT MADE AVAILABLE FOR DEPOSITION [MIL #21] A28 LANKFORD CRAWFORD, MORENO LLP ATTORNEYS aT LAW I, INTRODUCTION The above-named defendant (hereinafter “Defendant”) hereby moves this court for an order that: (1) excludes any witness not disclosed by plaintiff in the course of discovery; and (2) excludes any experts and other witnesses that plaintiff has not made available for a timely deposition. Plaintiff has responded to interrogatory and deposition questions inquiring as to known witnesses to plaintiff's alleged asbestos exposure. On legal and equitable grounds, given the basic policy of disclosure, plaintiff should not be permitted to come up with a “surprise witness” at trial when the identity of the witness has not been made known to Defendant through discovery devices. Therefore, before opening statement, Defendant is entitled to an Order excluding any witnesses that plaintiff did not disclose in discovery. Likewise, plaintiff has disclosed a number of experts and other witnesses in this matter. However, as trial approaches, plaintiff has not produced some of these witnesses for a timely deposition. This has impeded Defendant’s trial preparation. Moreover, it frustrates the goals of discovery, including the elimination of surprise at trial. Accordingly, under Cal. Code Civ. Proce. § 2034())(4) this Court must exclude from trial the testimony of any expert and other witnesses whom plaintiff has not made available for a timely deposition in this case. HL. ARGUMENT A. PLAINTIFF’S FAILURE TO DISCLOSE WITNESSES FRUSTRATES THE PURPOSES OF DISCOVERY AND MERITS EXCLUSION OF UNDISCLOSED WITNESSES Discovery’s ultimate goal is disclosure, so that neither party suffers unfair surprise or prejudice at trial. Chronicle Pub. Co. v. Superior Court (1960) 54 Cal.2d 548, 561 (purpose of discovery is to eliminate “the sporting theory of litigation—namely, surprise at the trial”). California trial courts therefore have the discretion to limit or exclude evidence at trial based on a party’s misuse or abuse of the discovery process. Cal. Code Civ. Proc. § 2023.010. In accord with this general principle, it is within the trial courts’ discretion to limit or exclude evidence based upon incomplete or misleading responses to discovery. Thus, in DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO EXCLUDE UNDISCLOSED WITNESSES AND EXPERT WITNESSES NOT MADE AVAILABLE FOR DEPOSITION [MIL #21]oc Oo ND 10 il 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LANKFORD CRAWFORD MORENO LLP ATTORNEYS AT LAW Universal Underwriters Ins, Co. v. Superior Court (1967) 250 Cal.App.2d 722, 730, it was held that a defendant’s interrogatory response stating that an issue was not in dispute, was binding on that defendant so as to foreclose the introduction of evidence on that issue. In Thoren v. Johnston & Washer (1972) 29 Cal.App.3d 270, the court extended this doctrine to prohibit the testimony of a witness whose identity was omitted from the answers to interrogatories seeking identification of all witnesses. Subsequently, Gordon vy. Superior Court (1984) 161 Cal.App.3d 157, 166, set forth factors that support barring the testimony of a witness not identified in such interrogatories: 1) the answering party willfully failed to reveal the witnesses names; 2) the answer impeded the other party’s trial preparations; 3) a continuance could not cure the defect; and 4) the answer did not go merely to evidence for which impeachment would be a remedy. Jd. at 166. Notably, these cases, and particularly the “willfulness” factor, must be viewed in light of the requirement that a patty responding to interrogatories must conduct an investigation of the matters to which the interrogatories relate prior to responding to them. Jones v. Superior Court (1981) 119 Cal. App.3d 534, 552 (responding party required to make reasonable investigation to ascertain the facts when it affirmatively appeared that he had available sources of information); Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 782 (responding party must make reasonable effort fo obtain information sought and if unable to do so must specify why the information is unavailable). In the current case, plaintiff's failure to reveal witnesses names, especially with respect to product identification witnesses, cannot have been other than willful, given plaintiff has full access to information concerning plaintiff's alleged exposures. Plaintiff’s failure to disclose has manifestly impeded Defendant’s trial preparations in that rebuttal witnesses and testimony have not been prepared. A continuance of sufficient length to cure the prejudice, assuming it to be curable, is not practical under the circumstances of this trial. Finally, having had no opportunity to prepare in this regard, Defendant is without the means to impeach previously undisclosed witnesses. Thus, all of the factors enumerated in Gordon are satisfied here. -2- DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO EXCLUDE UNDISCLOSED WITNESSES AND EXPERT WITNESSES NOT MADE AVAILABLE FOR DEPOSITION (ML 421}28 LANKFORD CRAWFORD MORENO LLP ATTORNEYS AT LAW Moreover, to permit an undisclosed witness to testify under these circumstances would promote the practice of plaintiff's attorneys not investigating their case until after the discovery cut-off; in other words it would promote reviving “the sporting theory” of litigation-by-surprise which the discovery rules aim to eliminate. For all the above reasons, this Court should exclude from this trial all witnesses not disclosed in plaintiffs discovery responses. B. PLAINTIFF’S FAILURE TO PRODUCE WITNESSES FOR A TIMELY DEPOSITION FRUSTRATES THE GOALS OF DISCOVERY AND MERITS EXCLUSION OF ALL WITNESSES THAT PLAINTIFF HAs NOT MADE AVAILABLE IN A REASONABLE AND TIMELY FASHION Modern litigation relies increasingly on expert testimony, and to prepare for trial, each side needs to know which experts will testify for the other side and what they will have to say. Stony Brook I Homeowners Ass'n v. Superior Court (2000) 84 Cal.App.4th 691, 700. Therefore, Code of Civil Procedure section § 2034(i) states: “On receipt of an expert witness list from a party, any other party may take the deposition of any person on the list.” Code of Civil Procedure section 2034(j) states: [T]he trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the following: qd) List that witness as an expert under subdivision (f). (2) Submit an expert witness declaration. G) Produce reports and writings of expert witnesses under subdivision (g). (4) Make that expert available for a deposition under subdivision (j). (Emphasis added.) To date, plaintiff has unreasonably failed to make several experts available for a timely deposition. This failure violates C.C.P. § 2034G)(4), which provides that the trial court shall exclude from evidence the expert opinion of such witness not made available for deposition by the party offering that witness’ testimony. Province v. Center for Women’s Health & Family Birth (1993) 20 Cal.App.4th 1673, 1682-84; Zellerino v. Brown (1991) 235 Cal.App.3d 1097, 1117; Waicis v. Superior Court (1990) 226 Cal. App.3d 283, 286-87. In Province, the Second -3- DEFENDANT PORD MOTOR COMPANY'S MOTION IN LIMINE TO EXCLUDE UNDISCLOSED WITNESSES AND EXPERT Wil NESSES NOT MADE AVAILABLE FOR DEPOSITION [MEL #24]Da Ww 28 LANKFORD CRAWFORD MORENO LLP ATTORNEYS ATLAW Appellate District explained the obvious need to preclude a party from presenting expert testimony at trial, as a result of their failure to make the expert available for a timely deposition by the opposing side: [The exchange of information about expert witnesses is a critical event in the course of any civil litigation and well-defined procedures are needed to ensure fairness to the parties and efficient resolution of disputes. Modern litigation relies increasingly on expert testimony. To prepare for trial, each side needs to know which expert will testify for the other side and what they will have ig say... [T]he purposes of California’s discovery statutes {i]s ‘among other things, to assist the parties and the trier of fact in ascertaining the truth; to encourage settlement by educating the parties as to the strengths of their claims and defenses; to expedite and facilitate preparation and trial; to prevent delay; and to safeguard against surprise. The Discovery Act of 1986 requircs full and timely disclosure regarding experts; it has teeth in the form of exclusion and monetary sanctions to ensure compliance for its salutary purposes. 20 Cal. App.4th at 1683-84. In Province, the plaintiffs, Pamela Province and her daughter, Cassandra, sued the defendants Dr. Callahan and the Center For Women’s Health and Family Birth (“Center”), alleging medical malpractice while Pamela was in labor with Cassandra, who consequently suffered severe brain damage. On the date Cassandra was born, pathologist Dr. Karanjawala examined the placenta and umbilical cord and prepared a pathology report that supported the defendants’ case. The case was tried twice in Province. At the first trial, the plaintiff objected to the presentation of any expert testimony by Dr. Karanjawala on the ground he was not designated as an expert witness. The first trial resulted in a mistrial because the jury was unable to reach a verdict on the issue of negligence. At the second trial in Province, the plaintiff again objected to any expert testimony by Dr. Karanjawala. Although Dr. Karanjawala testified at the first trial, the plaintiff had not been able to depose him prior to the second trial. Jd. at 1681-82, 1684. Over the plaintiff's objections, Dr. Karanjawala was permitted to provide an expert opinion on the issues of negligence and causation. The second trial resulted in a verdict for the defendant and the trial court denied the 4 DEFENDANT FORD MOTOR COMPANY'S MOTION iN LIMINE TO EXCLUDE UNDISCLOSED WITNESSES AND EXPERT WITNESSES NOT MADE AVAILABLE FOR DEPOSITION IMUL #21)NH iw 00 28 LANKFORD CRAWFORD MORENO LLP ATTORNEYS AT LAW plaintiffs motion for a new trial. The Second Appellate District reversed, holding the failure to comply with C.C.P. § 2034 and submit Dr. Karanjawala to a timely pre-trial deposition precluded a fair trial. Jd. The Province court reasoned that “Cassandra’s counsel [had] not yet been provided the opportunity to depose Dr. Karanjawala. Without the opportunity to depose an expert witness, that person’s testimony may truly be a surprise.” Jd. at 1684. The Province court concluded the Discovery Act of 1986 requires “full and timely” expert disclosure/deposition, with exclusion of an expert’s testimony as a proper sanction for a party’s failure to comply with C.C.P. § 2034. id. In Zellerino, 235 Cal.App.3d at 1117, the Third Appellate District similarly affirmed a trial court’s order precluding a plaintiff's expert from testifying at trial and granting a non-suit in favor of the defendants, due to the plaintiff's failure to comply with C.C.P. § 2034, including a failure to make an expert available for pretrial deposition. Ze/lerino held the failure to fulfill any one of the four obligations in C.C.P. § 2034(j), including the requirement to make an expert available for pretrial deposition, warrants the exclusion of the expert’s testimony at trial. Jd’. As in Province, the Zellerino court reasoned that a party’s failure to comply with C.C.P. § 2034 denies the opposing party a right to a fair trial, stating: The designation of an expert both informs all parties of the nature of his or her testimony and permits application of discovery of that expert’s testimony through oral and written depositions. In actions requiring expert testimony, ‘the need for pretrial discovery is greater with respect to expert witnesses than it is in the case of ordinary fact witnesses. Lf a party is going to present the testimony of experts during the trial. the other parties must prepare to cope with the testimony to be given by people with specialized knowledge in a scientific or technical field. These requirements ‘are doubtless aimed at eradicating the practice of submitting long lists of experts, none of whom have actually yet been retained, or even contacted by the party designating them.’ To effect this and other purposes, the statute permits a trial court to exclude the testimony of experts when a party has failed to comply with each of the provisions of section 2034, subdivision (j). 235 Cal.App.3d at 1117. C.C.P. § 2023 also provides an independent basis to preclude a plaintiff from presenting testimony from any experts or other witness that they have not made available for deposition. -5- DEFENDANT FORD MOTOR COMPANY’S MOTION IN LIMINE TO EXCLUDE UNDISCLOSED WITNESSES AND EXPERT WITNESSES NOT MADE AVAILABLE FOR DEPOSITION DML #21)28 LANKFORD CRAWFORD MORENO LLP ATTORNEYS AT LAW C.CP. § 2023.010(d) provides that the failure to submit to an authorized method of discovery, such as a deposition, is a “misuse of the discovery process.” C.C.P. § 2023.030 provides this court with the authority to impose an evidence, issue or terminating sanction for plaintiff's failure to produce any experts or other witnesses for deposition. Ti. CONCLUSION Defendant respectfully requests that this court exercise its discretion under C_.C.P. § 2023.030 to exclude all non-disclosed witnesses. Also, pursuant to C.C.P. § 2023.030 and § 2034.300, Defendant requests that the court exclude all experts and other witnesses that plaintiff has not made available for a timely deposition in this case. Dated: December 2, 2010 LANKFORD CRAWFORD MORENO LLP By: PAUL V. LANKFORD PAUL LANNUS Attorneys for Defendant FORD MOTOR COMPANY ~6- DEPENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO EXCLUDE UNDISCLOSED WITNESSES AND EXPERT WITNESSES NOT MADE AVAILABLE FOR DEPOSITION [MEL #21]