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  • CHARLES TOBEY VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • CHARLES TOBEY VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • CHARLES TOBEY VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • CHARLES TOBEY VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • CHARLES TOBEY VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • CHARLES TOBEY VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • CHARLES TOBEY VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • CHARLES TOBEY VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS et al ASBESTOS document preview 
						
                                
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                                em MW DR HW BB WN

id

R
Sen Franciven, CA 94105

John R. Brydon [Bar No. 083365]
Brian H. Buddell [Bar No. ieee

George A, Otstott [Bar No,184671
BRYDON HUGO & PARKER ELECTRONICALLY
135 Main Street, 20" Floor FILED
San Francisco, CA 94105 . Superior Court of California,
Telephone: (415) 808-0300 County of San Francisco
Facsimile: (415) 808-0333 MAY 05 2010
Attorneys for Defendant Oy MOONS eons
BAYER CROPSCIENCE, INC., successor to Deputy Clerk
AMCHEM PRODUCTS, INC.
SUPERIOR COURT - STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO ~ UNLIMITED JURISDICTION
CHARLES TOBEY, (ASBESTOS)
Case No, CGC-07-274226
Plaintiff,
v8. DEFENDANT BAYER CROPSCIENCE,
INC’S MOTION IN LIMINE TO
ASBESTOS DEFENDANTS (B*P}, EXCLUDE ANY OF PLAINTIFP’S
EXPERT WITNESSES NOT DEPOSED
Defendants. PRIOR TO TRIAL
[13]
Date: May 10, 2010
Dept.: 206
Judge: Hon. James J. McBride

Defendant BAYER CROPSCIENCE, INC. (“Defendant”) moves the Court in limine
for an order to prevent from testifying at trial any expert witness designated by Plaintiff
whose deposition had not been offered priot to trial, Both the Code of Civil Procedure
and the San Francisco General Orders require expert witnesses to be offered for.deposition
prior to the initial trial date, in order to ensure fairness in the trial process. To the extent
that Plaintiff's counsel failed to offer a particular expert witmess for his or her deposition
prior to the initial trial date, the Court must exclude each such expert witness from

testifying at trial.

1

DEFENDANT BAYER CROPSCIENCE, INC’S MOTION iN. LIMINE TO EXCLUDE ANY OF PLAINTIFF'S
EXPERT WITNESSES NOT DEPOSED PRIOR TO TRIAL [13]ec we MR DH BR WN

10

, Brypon
HuGO & PARKER
4135 Mash Stenet

2 FLOOR
Sas Fraseigen, CA ALES

L THE COURT SHOULD EXCLUDE THESE EXPERT WITNESSES BECAUSE

PLAINTIFF FAILED TO PROPERLY AND TUIMELY OFFER THEM FOR
DEPOSITION

Under both the Code of Civil Procedure.and the San Francisco Superior Court's
asbestos General Orders governing expert witness discovery, the depositions of each side’s
designated expert witnesses must be completed before the initial trial date, absent stipulation
of the parties ora court order reopening discovery or modifying the cutoff date. (See Code
Civ. Proc, § 2024.030 [expert discovery must be completed 15 days prior to the initial trial
date]; S.F. Gen. Order 156(4)(B) (“(T]he parties shall complete all expert-depositions prior to
the initial trial date.”). Both require that parties timely and properly designate their expert
witnesses, and offer them for deposition by the opposing parties before the initial trial date.
(See Code Civ. Proc, §§ 2034,260 {designation of experts], 2034.410 [deposition of experts];
SE, Gen, Order 156.) A party seeking to depose an expert witness is allowed to take. and
complete expert witness depositions by the initial trial date. Gee Code Civ. Proc. §
2024,030.)

The purpose of the rules governing expert discovery “is to require a litigating party
to reveal expert witness information to the other parties at a time that is not so late in.the
pretrial stage that expert witness discovery might interfere with other trial preparation.”
(Richard v. Jennings (1993) 16 Cal.App.4th 81, 90.) Another purpose is to “permit parties to
adequately prepare to meet the opposing expert opinions that will be offered at trial.”
(Jones'v. Moore (2000) 80 Cal.App.4th 557, 565.)

In order to accomplish this, a party is entitled to take the expert's deposition before
trial to elicit those opinions. Indeed, expert discovery rules require that a designated
expert “will be sufficiently. familiar with the pending action to submit to a meaningful oral
deposition concerning the specific testimony, including any opinion and its basis, that the
expert is expected to.give at trial.” Gee Code Civ. Proc, §§ 2034,.260(c)(4); 2034.410,)
Furthermore, examining an expert witness at trial for the first time, “particularly if the
testimony relates toa central issue, often provides a wholly inadequate opportunity to

2

DEFENDANT BAYER CROPSCIENCE, INC’S MOTION IN LIMINE TO EXCLUDE ANY OF PLAINTIFF'S

EXPERT WITNESSES NOT DEPOSED PRIOR TO TRIAL [13]OC oO SOA A RO

Dee ete
SRR RRS RB S&S SEAR AEBS AS

28

BRYDON
Huco & Parker

San Froceiaes, CA 94108

understand the expert's opinion and to prepare to meet it.” (Bonds v. Rey (1999) 20 Cal 4th
140,147, quoting Kennedy & Martin, Cal. Expert Witness Guide § 10.18 at 267 (Cont. Bd,
Bar 1998)).

As noted in Jones, 80 Cal. App. 4th at 565:

[T]he need for pretrial discovery is greater with respect to expert
witnesses than it is for ordinary fact witnesses [because]...[ ]...the
other parties must prepare to cope with witnesses possessed of
specialized knowledge in some scientific or technical field. They
must gear up to cross-examine them effectively, and they must
marshal the evidence to rebut their opinions.

Plaintiffs’ counsel controls the designation, preparation, and presentation of their
expert witnesses. To the extent that Plaintiffs’ counsel, contrary to the clear mandate of
California law, may seek to rely on the testimony of a designated expert who was not made
available for deposition before the initial trial date, that expert must be barred from
testifying here.

A party's failure to make an expert witness available for deposition before trial
effectively “thwart[s] the opposition from legitimate and necessary discovery.” (Zellerino v.
Brown (1991) 235 Cal.App.3d 1097, 1117.) In such situations, when the objecting party has
complied with the applicable rules for exchanging expert witness information, “the trial
court shall exclude from evidence the expert opinion of any witness that is offered by any
party who has unreasonably: failed to... make that expert available for a deposition” as
required by California law. (Code Civ, Proc., § 2034.30.)

Here, if Plaintiffs counsel intends to rely on the testimony of an expert who was not
deposed prior to the initial trial date, that expert must not be allowed to testify. Allowing
any non-deposed expert witnesses to testify would be unfair and prejudicial to Defendant.
Asa result, the Court must exclude any non-deposed expert witnesses from testifying at
trial.
fi. CONCLUSION

Based on the foregoing, Defendant BAYER CROPSCIENCE, INC. requests that the
3

DEFENDANT BAYER CROPSCIENCE, INC’8 MOTION IN LIMINE TO EXCLUDE ANY OF PLAINTIFF'S
EXPERT WITNESSES NOT DEPOSED PRIOR TO TRIAL [13]2 Se NM DR A RB WY PP

oS

BRyYDON
Huco & PARKER
335 Mam STREEY
20" FLOOR
San Frareiea, CA 94108

Court issue an in limine order foreclosing any of Plaintiff's expert witnesses not deposed

prior to the initial trial date from testifying at trial.

Dated: May 5, 2010
By:

4

BRYDON HUGO & PARKER

{si George A. Otstott
John R. Brydon

Brian H. Buddell

George A. Otstott

Attorneys for Defendant

BAYER CROPSCIENCE, INC., successor to
AMCHEM PRODUCTS, INC.

DEFENDANT BAYER CROPSCIENCE, INC'S MOTION IN LIMINE TO EXCLUDE ANY OF PLAINTIFF'S
EXPERT WITNESSES NOT DEPOSED PRIOR TO TRIAL [13]