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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
San Francisco, CA 94105 F ILE D .

. Superior Court of California,
Telephone: 415.617.2400 County of San Francisco
Facsimile: 415.617.2409
Email Addresses: Evan.Nelson@tuckerellis.com: JUL 19 2011
Nicole.Gage@tuckerellis.com Clerk of the Court

BY: JUANITA D. MURPHY
Attorneys for Defendant Deputy Clerk
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,
DEFENDANT ROCKWELL

Plaintiffs, AUTOMATION, INC.’S REPLY IN
SUPPORT OF ITS MOTION TO
vy. COMPEL FURTHER DEPOSITION OF

DR. RICHARD COHEN; REQUEST FOR

ALLIS-CHALMERS CORPORATION MONETARY SANCTIONS AGAINST DR.

PRODUCT LIABILITY TRUST, COHEN AND HIS ATTORNEYS
BRAYTON PURCELL LLP

Defendants.

Date: July 27, 2011
Time: 9:00 a.m.
Judge: Hon. Judge Teri L. Jackson
Dept.: 503
Complaint filed: March 12, 2008
Trial Date: July 11, 2011

L INTRODUCTION

Plaintiffs’ opposition fails for five independent reasons:

First, the motion to compel was brought against Dr. Cohen and served on his counsel.
Yet, Dr. Cohen did not oppose the motion.

Second, the court should not consider plaintiffs’ opposition to Rockwell’s motion
because it exceeds the 15 page limit set forth in California Rules of Court Rule 3.1113.

Third, plaintiffs’ opposition attempts to create a privilege for instructing Dr. Cohen to not

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REPLY IN SUPPORT OF ROCKWELL’S MOTION
TO COMPEL FURTHER DEPOSITION OF DR.
RICHARD COHEN

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answer questions when none exists. Specifically, plaintiffs justify Brayton’s instruction and Dr.
Cohen’s refusal to answer non-privileged questions at his deposition on the grounds that the
questions elicited “expert” opinions from a lay witness. This justification is not based on any
recognized privilege, and Brayton did not bring any motion for protective order. Accordingly,
the instructions were based on an improper ground for refusing to answer questions at
deposition.
Fourth, plaintiffs argue that the motion was untimely because it was brought after the
initial preference triat date of July 11, 2011. Plaintifi’s’ argument, however, is only another

attempt to block Rockwell’s right to conduct proper discovery, While the preference order states

that non-expert discovery shall be completed by July 11, 2011, the order is silent as to the last
date to bring any related discovery motions; and to impose the cut-off set forth in the Civil
Discovery Act would be impractical, as it would require all discovery motions to be filed before
discovery closed per the preference order. Rockwell’s motion should be considered timely, as it
was brought at the earliest possible moment. Alternatively, the court should continue to the trial
date to allow the timely filing of this motion.

Lastly, plaintiffs, who clearly would lack standing, improperly and in violation of
Rockwell’s due process rights seek to recover so-call expert fees and sanctions without service of
an adequately noticed motion seeking such relief. Thus, this issue is not properly before the
court. Moreover, there is no evidence that Dr. Cohen should be considered a treating physician.
Tl. LEGAL ARGUMENT

A. Dr. Cohen Failed To Oppose the Motion To Compel.

Rockwell filed a motion to compel Dr. Cohen’s deposition. The Brayton firm was served
with the motion based on representations made at Dr. Cohen’s deposition that they represent Dr.

Cohen. Brayton on behalf of Dr. Cohen did not, however, oppose the motion.

B Plaintiffs’ Opposition Exceeds Page Length Requirement And Should Not Be
Considered By The Court,

The court should not consider plaintiffs’ opposition on the grounds that it exceeds the 15

2
REPLY IN SUPPORT OF ROCK WELL’S MOTION
TO COMPEL FURTHER DEPOSITION OF DR.
RICHARD COHEN

011974 AAAI 2976101page limit set forth in California Rules of Court Rule 3.1113. Had plaintiffs’ motion been
properly formatted - that is to say “one-half spaced or double-spaced” as required by Rule 2.108,
instead of single-spaced - plaintiffs’ opposition would exceed the 15 page limit. Given that
plaintiffs did not seek leave to file a longer memorandum, the court has discretion to not consider
plaintiffs’ opposition. See Cal. Rules of Court Rule 3.1113(g).
Cc. Brayton’s Instructions Not To Answer Questions Was Improper And Not
Based On Any Recognized Privilege.

California does not recognize any privilege related to “expert” witness opinions from a
percipient witness. Yet, the crux of plaintiffs’ opposition is that Dr. Cohen as a percipient
witness is not required to answer questions that relate to any opinion. Plaintiffs lack any
authority for this position.

Code of Civil Procedure § 2017.010 states that a party may obtain discovery regarding
any matter, not privileged, that is relevant to the action. The scope of discovery is broadly
construed. Columbia Broadcasting System, Inc. v. Superior Court (1968) 263 Cal-App.2d 12,
19. The questions posed to Dr. Cohen at deposition were relevant, reasonably calculated to lead
to the discovery of admissible evidence, and not privileged in nature. Accordingly, Dr. Cohen
was obligated to respond to the questions asked at his deposition, and Brayton’s instructions and
Dr. Cohen’s refusal to answer these questions were improper and an abuse of the discovery
process.

dD. Rockwell’s Motion Should Be Considered Timely

Plaintiffs argue that Rockwell’s motion was untimely because non-expert discovery
closed on July 11, 2011 pursuant to the order granting trial preference. Ordinarily, the cut-off for
bringing discovery motions is after discovery closes. Here, the order granting preference is silent
as to the last day to bring a discovery motion.

The instant motion was brought at the earliest opportunity after the last session of Dr.
Cohen’s deposition. Moreover, plaintiffs suffer no prejudice in having this motion heard, given

that the trial date was continued from the July 11" date. Accordingly, the court should refuse to

3
REPLY IN SUPPORT OF ROCK WELL’S MOTION
TO COMPEL FURTHER DEPOSITION OF DR.
RICHARD COHEN

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cut off Rockwell’s right to otherwise proper discovery after Dr. Cohen improperly refused to
respond to proper discovery and based on a meritless argument that the motion is untimely.
Alternatively, Rockwell requests that the court continue the trial date to allow for Rockwell to
bring a timely motion to compel.

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

Ll Dr. Cohen’s Fees

The bulk of plaintiffs’ opposition is that Dr. Cohen is entitled to expert fees pursuant to
California Government Code section 68092.5. Not only is that issue not properly before the
court, as it is well beyond the scope of Rockwell’s motion to compel, but Dr. Cohen is not a
“treating physician” that would be entitled to 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 Exh. A to Supplemental Gage Dec. at Response
to Interrogatory No. 10. 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 vy.

Cseh 148 Cal_App. 3d 957, 961.

2. The Court Should Not Issue Sanctions Against Rockwell and Its
Counsel

Plainiifffs seek an order issuing sanctions for opposing this motion on the grounds that
Rockwell failed to meet and confer. This is a gross misrepresentation to the court. Not only did
counsel for Rockwell send a meet and confer letter to plaintiffs’ counsel (See Exh. B to
Supplemental Gage Dec.)}, which they ignored, but there was extensive meet and confer on the

record at Dr. Cohen’s deposition.

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REPLY [N SUPPORT OF ROCKWELL’S MOTION
TO COMPEL FURTHER DEPOSITION OF DR.
RICHARD COHEN

AL 137A NONE 797610BRB wR

The Brayton firm claims that they never received the June 15, 2011 meet and confer
letter. Yet, this was served via Lexis-Nexis and a Read Status report from Lexis-Nexis shows
that someone at Brayton read the meet and confer letter on June 17, 2011 at 8:42. See Exh. C to
Supplemental Gage Dec. Brayton did not, however, respond to Rockwell’s attempt to informally
resolve this dispute and was forced to bring the instant motion, Accordingly, the court should
deny plaintiffs’ request for sanctions against Rockwell and its counsel.

F. Rockwell’s Request for Sanctions Should Be Granted

The court should sanction Dr. Cohen’s counsel, Brayton Purcell LLP, in the amount of
$ 1,837.50 for the repeated improper instructions not to answer, and for forcing Rockwell to file
this Motion. Not only was this an improper instruction amounting to an abuse of the discovery
process that lead to the instant motion, but plaintiffs blatantly refused to’ meet and confer in good
faith regarding this disputc.

In addition, Rockwell requests that the court order Dr. Cohen’s deposition to go forward
no later than July 29, 2011 at the law offices of Tucker, Ellis & West in San Francisco,
California and awarded costs related to the expense of conducting an additional deposition
Ti. CONCLUSION

Based on the forgoing, the Court should grant Rockwell’s motion to compel and award
sanctions in the amount of $ 1,837.50, as well as costs associated with the expense of conducting
an additional deposition.

DATED: July 19, 2011 TUCKER ELLIS & WEST LLP

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

3
REPLY IN SUPPORT OF ROCK WELL'S MOTION
TO COMPEL FURTHER DEPOSITION OF DR.
RICHARD COHEN

811974 NNNINI 777619Rodrick Breckler et al. v. Allis-Chalmers et al.
San Francisco County Case No. CGC-08-274566

PROOF OF SERVICE
I, the undersigned, declare: that Tam, 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, Califomia 94105. My electronic notification address is
rene.paufve@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 July 19, 2011, at San Francisco, California.

Peng Ru

Rene Pautfve *

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REPLY IN SUPPORT OF ROCK WELL’S MOTION
TO COMPEL FURTHER DEPOSITION OF DR.
RICHARD COHEN

911274. 9NN103 7976101