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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
Cleveland ¢ Columbus ¢ Denver # Los Angeles # San Francisco

TUCKER ELLIS & WEST LLP

EVAN C. NELSON — STATE BAR NO. 172957
NICOLE GAGE — STATE BAR NO. 208658

135 Main Street, Suite 700

San Francisco, California 94105

Telephone: 415.617.2400

Facsimile: 415.617.2409

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

Attorneys for Defendant
ROCKWELL AUTOMATION INC.

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

JUL 05 2011

Clerk of the Court
BY: RAYMOND K. WONG
Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

RODRICK BRECKLER and JOANN
BRECKLER,

Plaintiffs,
Vv.

ALLIS-CHALMERS CORPORATION
PRODUCT LIABILITY TRUST,

Defendants.

CASE NO. CGC-08-274566

ROCKWELL AUTOMATION, INC.’S
MOTION IN LIMINE TO EXCLUDE
WITNESSES NOT DISCLOSED IN
DISCOVERY AND EXPERT WITNESSES
NOT MADE AVAILABLE FOR
DEPOSITION

[MOTION IN LIMINE NO. 26]

Judge: Harold E, Kahn
Dept.: 220

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

ROCK WELL’S MOTION IN LIMINE # 26

SFOiManage\011374 0002031226042. 1Cleveland ¢ Columbus ¢ Denyere Los Angeles # San Francisca

I. INTRODUCTION

This is a motion by defendant Rockwell Automation, Inc. (“Rockwell”) to this Court for a
motion in limine excluding the testimony and any reports of all witnesses who were not disclosed before
the close of discovery and expert witnesses who have not been made available for deposition in this
matter. This motion is made upon the grounds that Plaintiffs Rodrick Breckler and Joann Breckler
(“Plaintiffs”) should not be allowed to benefit through surprise at trial if they did not produce such
evidence or identify such witnesses during discovery.

IL. ARGUMENT
A. Under Thoren v. Johnston & Washer And Its Progeny Of Cases, A Witness Whose

Identity Is Willfully Withheld In Response To An Interrogatory Should Be Barred
From Testifying

Plaintiffs may attempt to call fact witnesses who were not identified before the close of
discovery, either in response to Rockwell’s interrogatories, required by the Court, or disclosure at
depositions of Plaintiff and other parties, in which defendants specifically asked Plaintiffs to identify all
witnesses who purport to possess information regarding Plaintiffs’ claims in this lawsuit. Under the
authority of Thoren y. Johnston & Washer (1972) 29 Cal. App. 3d 270, the testimony of these witnesses
should be barred. The willful withholding of a witness’ identity in response to a directly-asked
interrogatory should bar the witness from testifying at trial. (Thoren v. Johnston & Washer, supra at
273, Crumpton v. Dicksteen, (1978) 82 Cal. App. 3d 166, 169-171; Deerer v. Angus, (1986) 179 Cal.
App. 3d 241, 254-255; In Re Marriage of Stallcup, (1979) 97 Cal. App. 3d 294, 400; Foster v. Gillette
Co., (1979) 100 Cal. App. 3d 569, 578-579 (holding that trial court can order continuance of trial to
allow depositions of undisclosed witnesses).)

In Thoren, defendants served interrogatories on plaintiffs, one of which asked the names of and
other information about all witnesses known to plaintiff or his counsel to have arrived at the scene of the
accident shortly afterward the incident giving rise to the lawsuit. The trial court excluded the testimony
of an undisclosed witness whose name was willfully omitted from an interrogatory response. In
affirming the trial court’s decision, the Court of Appeal noted that "one of the principal purposes of civil
discovery is to do away with ‘the sporting theory of litigation’, namely, surprise al trial." (Thoren, supra

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ROCKWELL’S MOTION IN LIMINE # 26

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TUCKER ELL)s & WEST LLP

at 274.} The appellate panel also noted the unsatisfactory remedy of allowing cross-examination on the

omission in the discovery response. (Thoren, supra at 275, cited in Crumpton; supra at 171.)

B. Plaintiffs’ Failure To Produce Witnesses For A Timely Deposition Frustrates The Goals
Of Discovery And Merits Exclusion Of All Witnesses That Plaintiffs Have 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 §2034.410 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 2034.300 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:

“"(1) List that witness as an expert under Section 2034,260.
"(2) Submit an expert witness declaration.
"(3) Produce reports and writings of expert witnesses under Section 2034.270.
“(4) Make that expert available for a deposition under Article 3 (commencing

with Section 2034.410)."

The trial Court shall exclude from evidence the expert opinion of any expert witnesses
not made available for deposition by the party offering that witness’ testimony. Zedlerino v.

Brown, (1991) 235 Cal. App. 3d 1097, 1117, Waicis v. Superior Court, (1990) 226 Cal. App. 3d
283, 286 -87.

C.C.P. §2023.010 also provides an independent basis to preclude plaintiffs from presenting
testimony from any experts or other witness that they have not made available for deposition. C.C.P.
§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.

As such, any expert testimony offered after the initial trial date of August 15, 2011 should

therefore, be considered untimely if that witness had no previously been offered for deposition regarding

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ROCKWELL’S MOTION IN LIMINE # 26

SFQiManage\011374,000203\226042. 1s & WEST LLP

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any matters. This expert testimony and any reports generated by these witnesses should be excluded as
improper because these experts were not previously disclosed or offered for deposition testimony.
TI. CONCLUSION
Rockwell respectfully requests that this Court exercise its discretion under C.C.P. §2023.030 to
exclude all non-disclosed witnesses and any reports produced by all non-disclosed witnesses. Similarly,
pursuant to C.C.P. §2023.030 and §2034.300, Rockwell requests that this Court exclude all experts and

any reports produced by witnesses that Plaintiff has not made available for a timely deposition in this

case.
DATED: July 5, 2011 TUCKER ELLIS & WEST LLP
By: C
Nicole E. Gage
Attorney for Defendant
ROCKWELL AUTOMATION INC.

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ROCKWELL’S MOTION IN LIMINE # 26

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12

Rodrick 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.paufve@tuckerellis.com.

On the date executed below, | electronically served the document via LexisNexis File & Serve
described as:
ROCKWELL AUTOMATION, INC.’S MOTION IN LIMINE TO EXCLUDE WITNESSES

NOT DISCLOSED IN DISCOVERY AND EXPERT WITNESSES NOT MADE AVAILABLE
FOR DEPOSITION [MOTION IN LIMINE NO. 26]

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 5, 2011, at San Francisco, California.

Boys a

ene Paufve

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ROCKWELL’S MOTION IN LIMINE # 26

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