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  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview 
						
                                
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                                TUCKER ELLIS & WEST LLP
EVAN C. NELSON, SBN 172957

NICOLE E. GAGE, SBN 208658 ELECTRONICALLY
135 Main Street, Suite 700 FILED
San Francisco, CA 94105 Superior Court of California,
Telephone: 415.617.2400 County of San Francisco
Facsimile: 415.617.2409 AUG 12 2011

Email Addresses: Evan.Nelson@tuckerellis.com;
Nicole.Gage@tuckerellis.com

Clerk of the Court
BY: WILLIAM TRUPEK
Deputy Clerk

Attorneys for Defendant
ROCKWELL AUTOMATION, INC.

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO

RODRICK BRECKLER and JOANN Case No. CGC-08-274566
BRECKLER,
ROCKWELL AUTOMATION, INC.’S
Plaintiffs, OPPOSITION TO PLAINTIFFS’
MOTION TO COMPEL DEFENDANT TO
v. COMPENSATE DR, RICHARD COHEN,
M.D., HIS ORDINARY AND
ALLIS-CHALMERS CORPORATION REASONABLE FEES; REQUEST FOR
PRODUCT LIABILITY TRUST, SANCTIONS

Defendants. Date: August 25, 2011
Time: 9:00 a.m.

Judge: Hon. Harold E. Kahn
Dept.: 220

Complaint filed: March 12, 2008
Trial Date: July 11, 2011

L INTRODUCTION

On July 21, 2011, Plaintiffs dismissed Rockwell from this action “in exchange for a
mutual waiver of costs.” (See Ex. A to Gage Dec.) Accordingly, Rockwell is no longer a party
to this action. Yet, plaintiffs improperly brought the instant motion, forcing Rockwell to file an
opposition in order to protect its rights.

In the personal injury action brought by Plaintiffs, Plaintiff Rodrick Breckler alleged that
he developed kidney cancer as a result of his occupational exposure to asbestos. The bulk of Mr.
Breckler’s career was working in maintenance at Varian Associates (“Varian”) in Palo Alto,

California. Dr. Richard Cohen was the Chief Medical Officer and head of the Employee Health

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ROCKWELL AUTOMATION, INC.’S OPPOSITION
TO PLAINTIFFS’ MOTION TO COMPEL

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& Safety Department at Varian for nearly 20 years, including during the time Mr. Breckler
worked there. (See Ex. B to Gage Dec. at page:line 32:9-33:2) In other words, Dr. Cohen ran
the department that was responsible for protecting Mr. Breckler from the precise exposures he is
claiming in this case.

Rockwell served Dr. Cohen with a deposition subpoena to question him about his work at
Varian. (See Ex. C to Gage Dec.) On June 9 and June 17, 2011, while putatively represented by
the Brayton firm, Dr. Cohen appeared for his deposition. During several lines of questioning,
Dr. Cohen was improperly instructed not to answer. The stated basis for the instruction was not
one authorized by the Code of Civil Procedure — namely, privilege — but rather that the questions
“touched on” or “sought to elicit” an expert opinion from a percipient witness.

Plaintiffs’ motion to compel fails for four independent reasons:

First, plaintiffs previously dismissed Rockwell in exchange for a mutual waiver of costs,

and should be barred from seeking to recover costs that have been waived.
Second, discovery closed on July 11, 2011. Therefore, plaintiffs’ motion related to a

discovery dispute is untimely.

Third, Dr. Cohen is not a “treating physician” that would entitle him to recover his
“customary hourly rate” pursuant to California Government Code section 68092.5.

Fourth, even if the court did find that Dr. Cohen was a “treating physician,” he was only
deposed regarding “lay” matters, given that plaintiffs’ counsel instructed Dr. Cohen not to
answer questions that it sought so-call “expert opinions.”

Furthermore, plaintiffs’ request for sanctions should be denied. Not only did plaintiffs
improperly bring this motion against an entity that is no longer a party to this action, but all
claims for costs were previously waived by plaintiffs. Furthermore, Dr. Cohen appeared at
deposition as a percipient witness and should only be entitled to ordinary witness fees, which he
was paid. Thus, plaintiffs’ motion lacks any merit.

IL STATEMENT OF FACTS
Plaintiffs initially offered Dr. Cohen for deposition as an expert witness. (See Ex. D to

Gage Dec.) According to plaintiffs’ expert designation, Dr. Cohen is a specialist in

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ROCKWELL AUTOMATION, INC.’S OPPOSITION
TO PLAINTIFFS’ MOTION TO COMPEL

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epidemiology, preventative and occupational medicine, and can provide state-of-the art
testimony. (Sec Ex. E to Gage Dec.) Rockwell accepted the expert deposition of Dr. Cohen. In
addition, Rockwell noticed Dr. Cohen’s deposition as a percipient witness, given that he worked
at Varian as the Director of Employee Health and Safety during the period of time Mr, Breckler
worked there, Shortly thereafter, plaintiffs “withdrew” Dr. Cohen as their expert witness and
confirmed that they would be producing him as a percipient witness per the deposition notice.
(See Ex. F to Gage Dec.)

At the deposition, the Brayton firm, representing both Dr. Cohen and plaintiffs,
improperly instructed Dr, Cohen not to answer several areas of questioning that did not involve
any privileged matter. (See Ex. B to Gage Dec. at page:line 13:15-16; 16:6-10) In fact, it
became clear that the Brayton firm would not allow Dr. Cohen to answer any questions that they
deemed “expert” in nature on the grounds that Dr. Cohen was produced only as a lay witness.
The true motivation for the improper instruction of Dr. Cohen, however, was the fact that
Brayton insisted that Dr. Cohen be paid his customary “expert fees” under Government Code
section 68092.5, suggesting that if Rockwell were to pay Dr. Cohen’s expert fee, Rockwell
would be allowed to ask questions that they deemed “expert” in nature. (See Ex. B to Gage Dec.
at page:line 112:20-113:2)

Rockwell met and conferred with plaintiffs’ counsel explaining that it disagreed with
their interpretation of Government Code section 68092.5 that Dr. Cohen would be considered a
“treating physician.” (See Ex. G to Gage Dec.) Subsequently, plaintiffs dismissed Rockwell and
waived all cost.

WI. LEGAL ARGUMENT

A. Plaintiffs Previously Waived all Costs.

Plaintiffs’ motion must be denied. Not only is Rockwell no longer a party to this action,
but on July 21, 2011 Plaintiffs waived any right they may have had to recover fees related to Dr.
Cohen’s deposition, when plaintiffs agreed to dismiss Rockwell Automation, Inc. “with a mutual
waiver of costs.” (See Ex. A to Gage Dec.) Accordingly, plaintiffs should be barred from now

recovering costs related to the deposition of Dr. Cohen.

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ROCKWELL AUTOMATION, INC.’S OPPOSITION
TO PLAINTIFFS’ MOTION TO COMPEL

011274 ANIA 77RRI7 IB. Plaintiffs’ Motion is Untimely and an Improper Motion for Reconsideration

Pursuant to the court’s order granting trial preference, discovery closed on July 11, 2011.
(See Ex. H to Gage Dec.) Plaintiffs have not brought to a motion to reopen discovery. Further,
Judge Jackson, who should have any remaining jurisdiction over this matter, already denied
plaintiffs’ attempt to recover these costs. (See Ex. Ito Gage Dec.) Thus, this is an improper
attempt to have the court reconsider its request for fees. Moreover, the case has now resolved as
to Rockwell and all other parties. Therefore, the court should find that, in addition to waiving

any right to recover costs, plaintiffs’ motion is untimely and improper.

Cc Dr. Cohen Is Not Entitled To His “Customary Hourly Rate” Pursuant to
Government Code Section 68092.5.

Plaintiffs contend that Dr. Cohen is entitled to expert fees pursuant to California
Government Code section 68092.5. Not only have plaintiffs waived their right, if any, to recover
these fees, but Dr. Cohen is not a “treating physician” that would be entitled to recover expert
fees.

Government Code section 68092.5 provides that “a treating physician and surgeon or
other treating health care practitioner be paid their customary hourly rate for deposition.” While
it is undisputed that Dr. Cohen is a licensed physician, he is not a “treating” physician. Plaintiffs
do not identify Dr. Cohen as a “treating” physician in response to standard interrogatories that
seek information about all treating physicians, and none of the questions posed to Dr. Cohen
dealt with his “treatment” of Mr. Breckler. (See Ex. J to Gage Dec.) There is no evidence that
Dr. Cohen “treated” Mr. Breckler for any injury that was at issue in this case. Indeed, Mr.
Breckler was not diagnosed with kidney case until well after his employment at Varian.

Even if the court found that Dr. Cohen was a “treating physician,” plaintiffs’ counsel
prevented Dr. Cohen from responding to any questions they deemed “expert” in nature. In fact,
plaintiffs’ counsel suggested that if Rockwell pay Dr. Cohen’s expert fee, Rockwell would be
allowed to ask questions that they deemed “expert” in nature. (See Ex. B to Gage Dec. at
page:line 112:20-113:2.) Therefore, plaintiffs’ counsel’s own egregious conduct at deposition

should terminate any right to allow plaintiffs to recover fees for Dr. Cohen’s testimony. While

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ROCKWELL AUTOMATION, INC.’S OPPOSITION
TO PLAINTIFFS’ MOTION TO COMPEL

D11A7A ANIA I7KKI7 ERockwell disagrees with plaintiffs’ interpretation of Government Code section 68092.5, it is
precisely the so-called “expert” questions that plaintiffs claim entitled Dr. Cohen to his
“customary” fees. Yet, plaintiffs’ counsel improperly refused to allow Dr. Cohen to testify about
these “expert” matters.

Plaintiffs cannot demand that Dr. Cohen be paid his “customary hourly rate” simply
because he is a physician; here he is a percipient witness who has information regarding
decedent’s employer and is obligated to respond to proper discovery. See O'Brien v. Cseh 148
Cal. App. 3d 957, 961.

D. Plaintiffs’ Request For Expert Fees and Sanctions Should Be Denied.

Plaintiffs seek an order issuing sanctions for opposing this motion on the grounds that
Rockwell abused the discovery process by only paying Dr. Cohen an ordinary witness fee and
failing to meet and confer. As discussed at length above, not only did plaintiffs waive any right
to recover these costs, but Dr. Cohen was never entitled to his “customary” fee when he appeared
for deposition as a percipient witness. Moreover, plaintiffs misrepresent to the court Rockwell’s
response to meet and confer efforts. Rockwell did not “ignore” any attempt to meet and confer
regarding this dispute. Not only was there extensive meet and confer communication on the
record at Dr. Cohen’s deposition, but counsel for Rockwell indicated on multiple occasions that
it disagreed with their interpretation of Government Code section 68092.5.

Given that Rockwell not only met and conferred in good faith and has substantial
justification for its position that Dr. Cohen is only entitled to his “ordinary” witness fee,
plaintiffs’ requests for sanctions against Rockwell and its counsel should be denied.
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ROCKWELL AUTOMATION, INC.’S OPPOSITION
TO PLAINTIFFS’ MOTION TO COMPEL,

911374 NNNINI 77RRIT 1cm ND

IV. CONCLUSION
Based on the forgoing, the Court should deny plaintiffs’ motion and requests for
sanctions.

DATED: August (i. 2011 TUCKER ELLIS & WEST LLP

ws

Nicole E. Gage
Attomeys for Defendant
ROCKWELL AUTOMATION, INC.

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ROCKWELL AUTOMATION, INC.°S OPPOSITION
TO PLAINTIFFS’ MOTION TO COMPEL

11974 HNN 778RI7 1Rodrick Breckler et al. v. Allis-Chalmers et al.
San Francisco County Case No. CGC-08-274566

PROOF OF SERVICE
I, the undersigned, declare: that I am, and was at the time of service of the documents
herein referred to, over the age of 18 years, and not a party to the action; and I am employed in
the County of San Francisco, State of California. My business address is 135 Main Street, Suite
700, San Francisco, California 94105. My electronic notification address is
rene.paufye@tuckerellis.com.
On the date executed below, I electronically served the document via LexisNexis File &

Serve described as:

DEFENDANT ROCKWELL AUTOMATION, INC.’S REPLY IN SUPPORT OF ITS
MOTION TO COMPEL FURTHER DEPOSITION OF DR. RICHARD COHEN;
REQUEST FOR MONETARY SANCTIONS AGAINST DR. COHEN AND HIS
ATTORNEYS BRAYTON PURCELL LLP

on the recipients designated on the Transaction Receipt located on the LexisNexis File & Serve

website. This service was completed in accordance with the Amended General Order No. 158.
I declare under penalty of perjury pursuant to the laws of the State of California that the

foregoing is true and correct and was executed on August (2. 2011, at San Francisco,

California.

ops Voc
ene Paufve

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ROCKWELL AUTOMATION, INC.’S OPPOSITION
TO PLAINTIFFS’ MOTION TO COMPEL

911274 NNNIA 778RI7 1