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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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                                LLP

N

KNOX RICKSE

Kenneth J. McCarthy - SBN 120875
Gregory D. Pike - SBN 124847

KNOX RICKSEN LLP ELECTRONICALLY
1300 Clay Street, Suite 500
Oakland, CA 94612-1427 sopehr IL ED |
Telephone: (510) 285-2500 ¥ San Francisco.
Facsimile: (510) 285-2505 County of San Francisca

JUL 05 2011
Attorneys for Defendant Clerk of the Court
BIGGE CRANE AND RIGGING CO. BY: JUDITH NUNEZ

Deputy Clerk

SUPERIOR COURT OF CALIFORNIA - COUNTY OF SAN FRANCISCO

RODRICK BRECKLER and JOANN No, CGC-08-274566

BRECKLER,
BIGGE CRANE & RIGGING
Plaintiff, COMPANY’S MOTION IN LIMINE
NO. 2:
Vv.
TO EXCLUDE CO-WORKER
ASBESTOS DEFENDANTS (BP). et al., WITNESSES NOT DISCLOSED IN
DISCOVERY
Defendants.
Trial Date: July 11, 2001
Dept. : 206
Time: 11:15 a.m,
Judge: TBD
Action Filed: March 12, 2008

Comes now defendant BIGGE CRANE AND RIGGING COMPANY and moves this Court
for an Order In Limine excluding the testimony of plaintiffs co-workers who were not identified in
Plaintiffs’ Answers to Interrogatories where plaintiffs were specifically asked to identify plaintiffs
co-workers. Plaintiffs’ willful failure to provide the identities of plaintiff's co-workers requires the
Court to exclude the co-worker’s testimony. Under the authority of Thoren v. Johnston & Washer
(1972) 29 Cal. App.3d 270, and subsequent cases, testimony from such undisclosed witnesses is
prohibited.

1- INTRODUCTION

It is anticipated by counsel for Defendant that Plaintiff intends to call fact witnesses, who are

purportedly plaintiff's former co-workers, who have not been identified as plaintiff's co-workers in

verified Responses to Defendant’s Interrogatories in which Plaintiffs were specifically asked to

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BIGGE CRANE AND RIGGING CO.’S_ MOTION IN LIMINE # 2LLP

KNOX RICKSEN

identify co-workers and/or supervisors. Under the authority of Thoren v. Johnston & Washer,

supra, the testimony of these witnesses should be excluded.
If- UNDER THOREN V. JOHNSON & WASHER AND ITS PROGENY, A WITNESS

WHOSE IDENTITY IS WILLFULLY WITHHELD IN RESPONSE
TO AN INTERROGATORY SHOULD BE BARRED FROM TESTIFYING

The California Judges Benchbook, Civil Trials (California Center for Judicial Education and

Research, 1981) makes it clear in Sections 6/16 (“Binding Effect of Discovery Responses”) and
6.23 (Willful Withholding of Evidence”) that the willful withholding of the identity of a witness in
response to a directly-asked interrogatory should bar the witness from testifying. See: Thoren v.
Johnston & Washer (1972) 29 Cal. App.3d 270, 273; Crumpton v. Dicksteen (1978) 82 Cal. App.3d
166, 69-171; Deeter v. Angus (1986) 179 Cal._App.3d 241, 254-255; In Re Marriage of Stallcup
(1979) 97 CaLApp.3d 294-300; Foster v. Gillette Co. (1979) 100 Cal.App.3d 569, 578-579 (trial
court can order continuance of trial to allow depositions of undisclosed witnesses).)

In Thoren, Defendants served Interrogatories on Plaintiff, one of which asked the names and
other information about all witnesses known to Plaintiff or his counsel to have arrived at the scene
of the accident shortly afterwards. The Trial Court excluded the testimony of an undisclosed
witness whose name was willfully omitted from the Answer to the Interrogatory. The Court of|
Appeal affirmed and noted that “one of the principal purposes of civil discovery is te do away with
‘the sporting theory of litigation, namely, surprise at trial.’” Thoren, supra, 29 Cal.App.3d_ at 274.
The Appellate panel also noted the unsatisfactory remedy of allowing cross-examination on the
omission in the discovery response. Thoren, supra, 29 Cal.App.3d at 275, cited in Crumpton,
supra, 82 Cal.App.3d at 171,

Deeter v. Angus, supra, involved several real estate brokers who obtained collective oral
permission to procure a buyer for a large apartment development. A prospective buyer was found,
and three offers, each providing for commissions to the brokers, were made and rejected. A
purchase agreement was finally executed, but expressly provided that no commission was to be
paid. The brokers brought an action against the seller, the corporate buyer, and the buyer’s

principals on various theories; but the trial court sustained Demurrers to several causes of action.

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BIGGE CRANE AND RIGGING CO.’S_ MOTION IN LIMINE # 2LLP

KNOX RICKSEN

Thereafter, the case went to Trial and the Jury returned a defense verdict.

Plaintiffs appealed on several grounds, inter alia, on the Trial Court’s exclusion of a tape
recording of a telephone conversation between one Plaintiff and one of the buyer’s principals.
Defendants objected to the tape on the grounds it was inadmissible under Penal Code Section 632
(eavesdropping upon or recording of confidential communications) and that Plaintiff's had not
produced the tape pursuant to discovery requests. The Appellate Court concluded that it was
unlikely that the Trial Court (which had excluded the tape without comment) found the conversation
to be confidential. Rather, the First District Panel found it more likely and affirmed the Trial
Court’s exclusion of the conversation on the grounds that the tape recording’s existence had not
been disclosed in response to written discovery. The Court of Appeal cited Thoren and concluded:
“We see no reason why the same rule [as in Toren] should not apply to the willful withholding of
evidence such as the tape here at issue.” Thoren, supra, 179 Cal_App.3d at 255.

Tl - CONCLUSION

The rationale underlying the exclusion of proffered evidence as delineated hereinabove is
also applicable to the case at bar. In spite of proper discovery requests, Plaintiffs have failed to
disclose the names of various witnesses (i.c., co-workers) whose testimony, it is anticipated by or
known to counsel for Defendants, will be sought to be introduced at the Trial of this action.

Based upon the foregoing and Plaintiffs’ failure to disclose the identity of such co-workers
during discovery, whether such failure was willful or not, Defendant hereby moves to exclude the

testimony of such witness at trial.

DATED: July 1, 2011 KNOX RICKSEN LLP

By:_/s/ Gregory D. Pike

Gregory D. Pike

Attorneys for Defendant

BIGGE CRANE AND RIGGING CO.

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BIGGE CRANE AND RIGGING CO.’S_ MOTION IN LIMINE # 2LLP

KNOX RICKSEN

Re:  Breckler y. Asbestos Defendants (BP), et al.
San Francisco Superior Court No. CGC-08-274566

PROOF OF SERVICE BY ELECTRONIC TRANSMISSION

L, the undersigned, declare: that | 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 1 am employed in the County of
Alameda, California, My business address is 1300 Clay Street, Suite 500, Oakland, California
94612-1427.

On the date executed below, I electronically served the document(s) via LexisNexis File & Serve
described as:

BIGGE CRANE & RIGGING COMPANY’S MOTION IN LIMINE NO, 2:
TO EXCLUDE CO-WORKER WITNESSES NOT DISCLOSED IN DISCOVERY
on the recipients designated on the Transaction Receipt located on the LexisNexis File & Serve

website. 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 1, 2011, at Oakland, California,

/s/ Lauren Ferrara
Lauren Ferrara

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BIGGE CRANE AND RIGGING CO.’S_ MOTION IN LIMINE # 2