Preview
1 O’BRIEN WATTERS & DAVIS, LLP
Michael G. Watters, Esq. (CSB No. 63140)
2 Graden R. Tapley, Esq. (CSB No. 222636)
1550 Airport Blvd., Suite 201
3
Santa Rosa, CA 95403
4 (707) 545-7010
5 Attorneys for Mitchell G. Black and Deanne G. Black
dba Black Knight Vineyards.
6
7 SUPERIOR COURT OF THE STATE OF CALIFORNIA
8
IN AND FOR THE COUNTY OF SONOMA
9
10
11 BARRY BRILLIANT, an individual; and Case No. SCV-267406
DAGMAR K. HOHENECK-SMITH, an
12 individual and as trustee of THE DAGMAR DEFENDANTS’ MOTION IN LIMINE
HOHENECK-SMITH TRUST dtd December NUMBER 1, TO PRECLUDE
13
14, 2010, PLAINTIFFS’ EXPERTS FROM
14 Plaintiffs, OFFERING OPINIONS NOT
DISCLOSED DURING THEIR
15 vs. RESPECTIVE DEPOSITIONS AND
DIFFERENT FROM THE SCOPE OF
16 MITCHELL G. BLACK, an individual and dba DISCLOSURE
BLACK KNIGHT VINEYARDS; DEANNE G.
17
BLACK, an individual and dba BLACK
18 KNIGHT
VINEYARDS; and DOES 1-20, Trial Date: 2-24-23
19 Dept. 18
Defendants Hon. Christopher Honigsberg
20
21 ______________________________________/
22
23 Defendants, Mitchell G. Black et al. respectfully move the court for an order limiting the expert
24 witnesses Plaintiffs Barry Brilliant and Dagmar K. Hoheneck Smith, from presenting evidence in the
25 form of testimony, documents, or otherwise, regarding opinions that were not expressed within the
26 scope of plaintiff’s Expert Witness Declaration and beyond the scope of opinions expressed at their
27 depositions.
28 This motion is based on Evidence Code sections 210, 352, 801, and 802, and Code of Civil
DEFENDANTS’ MOTION IN LIMINE NO. 1
1
1 Procedure section 2034.010 et seq.
2 FACTS
3 Plaintiffs listed the following as experts they had retained for the purposes of offering expert
4 testimony at trial: Joe Hughes, Jean Kapolchok, Greg Martin, Joseph McNeil, and Daniel Roberts.
5 Defendants noticed the depositions of Jean Kapolchok, Greg Martin, and Joseph McNeil. At their
6 depositions each of these three experts responded to questions that they intended to offer at trial.
7 DISCUSSION
8 “When an expert deponent testifies as to specific opinions and affirmatively states those are the
9 only opinions he intends to offer at trial, it would be grossly unfair and prejudicial to permit the expert
10 to offer additional opinions at trial.” (Jones v. Moore (200) 80 Cal.App.4th 557, 565.) Each of the three
11 experts were asked to provide all of the opinions they had formed regarding the areas of their expertise
12 as it related to this case. Each of these experts testified that they had provided all of the opinions that
13 they had formed.
14 To prepare for a trial which depends on expert witness testimony to establish standards of care
15 and other information beyond the scope of a lay-witness, each side needs to know what the opposing
16 party’s experts will say. To this end, Code of Civil Procedure section 2034.101 et. seq. “demonstrates
17 that the legislature intended to allow sufficient time before trial for experts to be identified so that the
18 subject matter of their expected testimony can be fully explored at deposition.” (Bonds v. Roy (1999) 20
19 Cal.4th 140, 146.) The Bonds court went on to state: “[i]ndeed, the very purpose of the expert witness
20 discovery statute is to give fair notice of what an expert will say at trial.”
21 Code of Civil Procedure section 2034.300 requires the court to exclude from evidence the
22 expert opinion of any witness that is offered by any party who has unreasonably failed to comply with
23 the prescribed procedures for designating expert witnesses and producing them for meaningful
24 deposition testimony. The Bonds court also held that when a party submits an incomplete or
25 inaccurate witness declaration, it is tantamount to failing to serve an expert witness declaration
26 altogether. (Bonds, supra at 147.)
27
The policy behind the expert disclosure statutes is that timely disclosure of expert witness
28
DEFENDANTS’ MOTION IN LIMINE NO. 1
2
1 information “allows the parties to assess whether to take the expert’s deposition, to fully explore the
2 relevant subject area at any such deposition, and to select an expert who can respond with a competing
3 opinion on that subject area.” (Id.) Additionally, “the need for pretrial discovery is greater with respect
4 to expert witnesses than it is for ordinary fact witnesses [because] . . . the other parties must prepare to
5 cope with witnesses possessed of specialized knowledge in some scientific or technical field. They
6 must gear up to cross-examine them effectively, and they must marshal the evidence to rebut their
7 opinions.” (Id.)
8 RELIEF REQUESTED
9 Defendants respectfully request this court to issue an order limiting the deposition testimony of
10 Jean Kapolchok, Greg Martin, and Joseph McNeil, so as to prevent the introduction of evidence in the
11 form of testimony, documents, or otherwise, that was not expressed at their respective depositions, and
12 not within the scope of plaintiffs’ Expert Witness Declaration.
13
14 Dated: 2-15-23 O’BRIEN WATTERS & DAVIS, LLP
15
16
By: ___
17
Graden R. Tapley,
18 Attorneys for Mitchell G. Black and
Deanne G. Black dba Black Knight
19 Vineyards.
20
21
22
23
24
25
26
27
28
DEFENDANTS’ MOTION IN LIMINE NO. 1
3
Preview
1 O’BRIEN WATTERS & DAVIS, LLP Michael G. Watters, Esq. (CSB No. 63140) 2 Graden R. Tapley, Esq. (CSB No. 222636) 1550 Airport Blvd., Suite 201 3 Santa Rosa, CA 95403 4 (707) 545-7010 5 Attorneys for Mitchell G. Black and Deanne G. Black dba Black Knight Vineyards. 6 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 IN AND FOR THE COUNTY OF SONOMA 9 10 11 BARRY BRILLIANT, an individual; and Case No. SCV-267406 DAGMAR K. HOHENECK-SMITH, an 12 individual and as trustee of THE DAGMAR DEFENDANTS’ MOTION IN LIMINE HOHENECK-SMITH TRUST dtd December NUMBER 1, TO PRECLUDE 13 14, 2010, PLAINTIFFS’ EXPERTS FROM 14 Plaintiffs, OFFERING OPINIONS NOT DISCLOSED DURING THEIR 15 vs. RESPECTIVE DEPOSITIONS AND DIFFERENT FROM THE SCOPE OF 16 MITCHELL G. BLACK, an individual and dba DISCLOSURE BLACK KNIGHT VINEYARDS; DEANNE G. 17 BLACK, an individual and dba BLACK 18 KNIGHT VINEYARDS; and DOES 1-20, Trial Date: 2-24-23 19 Dept. 18 Defendants Hon. Christopher Honigsberg 20 21 ______________________________________/ 22 23 Defendants, Mitchell G. Black et al. respectfully move the court for an order limiting the expert 24 witnesses Plaintiffs Barry Brilliant and Dagmar K. Hoheneck Smith, from presenting evidence in the 25 form of testimony, documents, or otherwise, regarding opinions that were not expressed within the 26 scope of plaintiff’s Expert Witness Declaration and beyond the scope of opinions expressed at their 27 depositions. 28 This motion is based on Evidence Code sections 210, 352, 801, and 802, and Code of Civil DEFENDANTS’ MOTION IN LIMINE NO. 1 1 1 Procedure section 2034.010 et seq. 2 FACTS 3 Plaintiffs listed the following as experts they had retained for the purposes of offering expert 4 testimony at trial: Joe Hughes, Jean Kapolchok, Greg Martin, Joseph McNeil, and Daniel Roberts. 5 Defendants noticed the depositions of Jean Kapolchok, Greg Martin, and Joseph McNeil. At their 6 depositions each of these three experts responded to questions that they intended to offer at trial. 7 DISCUSSION 8 “When an expert deponent testifies as to specific opinions and affirmatively states those are the 9 only opinions he intends to offer at trial, it would be grossly unfair and prejudicial to permit the expert 10 to offer additional opinions at trial.” (Jones v. Moore (200) 80 Cal.App.4th 557, 565.) Each of the three 11 experts were asked to provide all of the opinions they had formed regarding the areas of their expertise 12 as it related to this case. Each of these experts testified that they had provided all of the opinions that 13 they had formed. 14 To prepare for a trial which depends on expert witness testimony to establish standards of care 15 and other information beyond the scope of a lay-witness, each side needs to know what the opposing 16 party’s experts will say. To this end, Code of Civil Procedure section 2034.101 et. seq. “demonstrates 17 that the legislature intended to allow sufficient time before trial for experts to be identified so that the 18 subject matter of their expected testimony can be fully explored at deposition.” (Bonds v. Roy (1999) 20 19 Cal.4th 140, 146.) The Bonds court went on to state: “[i]ndeed, the very purpose of the expert witness 20 discovery statute is to give fair notice of what an expert will say at trial.” 21 Code of Civil Procedure section 2034.300 requires the court to exclude from evidence the 22 expert opinion of any witness that is offered by any party who has unreasonably failed to comply with 23 the prescribed procedures for designating expert witnesses and producing them for meaningful 24 deposition testimony. The Bonds court also held that when a party submits an incomplete or 25 inaccurate witness declaration, it is tantamount to failing to serve an expert witness declaration 26 altogether. (Bonds, supra at 147.) 27 The policy behind the expert disclosure statutes is that timely disclosure of expert witness 28 DEFENDANTS’ MOTION IN LIMINE NO. 1 2 1 information “allows the parties to assess whether to take the expert’s deposition, to fully explore the 2 relevant subject area at any such deposition, and to select an expert who can respond with a competing 3 opinion on that subject area.” (Id.) Additionally, “the need for pretrial discovery is greater with respect 4 to expert witnesses than it is for ordinary fact witnesses [because] . . . the other parties must prepare to 5 cope with witnesses possessed of specialized knowledge in some scientific or technical field. They 6 must gear up to cross-examine them effectively, and they must marshal the evidence to rebut their 7 opinions.” (Id.) 8 RELIEF REQUESTED 9 Defendants respectfully request this court to issue an order limiting the deposition testimony of 10 Jean Kapolchok, Greg Martin, and Joseph McNeil, so as to prevent the introduction of evidence in the 11 form of testimony, documents, or otherwise, that was not expressed at their respective depositions, and 12 not within the scope of plaintiffs’ Expert Witness Declaration. 13 14 Dated: 2-15-23 O’BRIEN WATTERS & DAVIS, LLP 15 16 By: ___ 17 Graden R. Tapley, 18 Attorneys for Mitchell G. Black and Deanne G. Black dba Black Knight 19 Vineyards. 20 21 22 23 24 25 26 27 28 DEFENDANTS’ MOTION IN LIMINE NO. 1 3