On December 06, 2001 a Party Discovery was filed involving a dispute between Jordan, Cheryl Lynn, Jordan, James, Thomas Dee Engineering Company, and 4520 Corp., Abblummus Global, Inc., A C And S,Inc., A.H. Voss Company, Albay Construction, Allis-Chalmers Corp. Product Liability Trust, American Honda Motor Co., Inc., American Standard, Inc., Asbestos Corp. Limited, Asbestos Corporation Ltd., Asbestos Defendants, Babcock Borsig Power Inc Ref To Db Riley Inc, Blue Diamond Corp., Borg Warner Inc., Borgwarner Inc. Fka Borg-Warner Automotive, Inc., Bragg Investment Company, Inc., Bridgestone Firestone Americas Holdings, Inc., Bridgestone Firestone,Inc., Bridgestone Firestone North American Tire, Llc,, Bwd Automotive, Calaveras Cement Co., Certainteed Corporation, Chevron Products Company, Colonial Sugar Refining Company, Conocophillips Company, Consolidated Insulation, Inc., Crane Co., Crown Cork & Seal Company,Inc., Daimlerchrysler Corporation, Dana Corporation, D. Cummins Corporation, Diamond International Corp., Dillingham Construction N.A.,Inc., Dixon Boiler Works Inc, Dixon Boiler Works, Inc., Does 1-800, Dow Chemical Company, Dresser Industries Inc., D.W. Nicholson Corporation, Eaton Corporation, Elliott Company, Elliott Turbomachinery Co., Inc., Fisher Controls International, Llc, Flintkote Co., Flintkote Mines Ltd., Flowserve Us Inc, Flowserve Us Inc., Fluor Corporation, Fmc Corporation -Turbo Pump Operation, Ford Motor Company, Foster Wheeler Llc, Garlock Sealing Technologies, Ll, Gatke Corporation, General Electric Company, General Motors Corporation, General Refractories Company, Genstar Co., Genuine Parts Company, Goodrich Corporation, Grinnell Corporation, Halliburton Company, Hanson Cement, Inc., Henry Vogt Machine Co., Hercules Powder Company, Honeywell International, Inc. Fka Alliedsignal, Imo Industries Inc.,, Imo Industries, Inc., J.R.Simplot Company, J.R. Simplot Company, A Nevada Corporation,, J.T. Thorpe & Son, Inc., Kaiser Gypsum Company, Inc., Keenan Properties, Inc, Kubota Corporation, Lamons Gasket Company Dba Power Engineering &, Lear Siegler Diversified Holdings Corp., Maremont Corporation, Metalclad Insulation Corporation, Monsanto Company, Morton International, Inc. A Rohm And Haas Company, Oakfabco, Inc., Oscar E. Erickson, Inc., Owens-Illinois, Inc., Pacific Coast Building Products, Inc Dba Pacific, Parker Hannifin Corporation, Parker-Hannifin Corporation, Parsons Energy & Chemical Group, Inc., Parsons Energy & Chemicals Group Inc, Plant Insulation Company, Pnuemo Abex Corporation, As Successor, Power Engineering & Equipment Co. Inc., Quigley Company, Inc., Rapid-American Corporation, Republic Supply Company, Rheem Manufacturing Co, Rheem Manufacturing Company, Robertson-Ceco Corporation, Rosendahl Corporation, Santa Fe Braun, Inc. As Successor-In-Interest To, Sequoia Ventures, Inc., Shell Oil Company, Soo Line Railroad Company, Standard Motor Products, Stuart Radiator Core Manufacturing Co Inc, Stuart Radiator Core Manufacturing Co. Inc., Stuart-Western, Inc., Sugar City Building Materials Inc., Taylor Plumbing Supply Company, Dba Globe Plumbing, Taylor Plumbing Supply Inc., Temporary Plant Cleaners, Inc., The Budd Company, Thomas Dee Engineering Company, Thorpe Insulation Company, Tosco Corporation, Tosco Refining Company, Trimon, Inc., Union Carbide Corporation, Unocal Corporation, Viacom Inc., Successor By Merger To Cbs Corporatio, Vogt Valve Company, Waldron, Duffy, Inc., Westburne Supply, Inc., Yale Industrial Products, Inc., Zurn Industries, Inc., for ASBESTOS in the District Court of San Francisco County.
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LEWIS BRISBOIS BISGAARD & SMITH LLP CONSTANCE MCNEIL, SBN 184526 E-Mail: i slaw.com ELECTRONICALLY ELIZABETH C. SEARS, SBN 250450 E-Mail: Ibbs.com FILED Superior Court of California, One Sansome Street, Suite 1400 County of San Francisco San Francisco, CA 94104 Tel: 415,362,2580 J Fax: 415.434.0882 GORDON PARK-LI, Clerk BY: VANESSA WU Deputy Clerk Attorneys for Defendant PLANT INSULATION COMPANY SUPERIOR COURT OF THE STATE OF CALIFORNIA. COUNTY OF SAN FRANCISCO 10 Il JAMES JORDAN, } CASE NO, 402113 2 12 Plaintiff, ) ASBESTOS-RELATED 13 ) MOTION IN LIMINE NO, 4: 14 TO EXCLUDE EXPERT WITNESS ASBESTOS DEFENDANTS, et al., ) TESTIMONY FOR THOSE NOT MADE 15 ) AVAILABLE FOR DEPOSITION Defendants. 16 ‘Trial Date: January 20, 2009 } Action Filed: December 6, 2001 17 18 1 INTRODUCTION 19 ‘This Court should order i limine the exclusion of all evidence and/or testimony of fact witnesses 20 not properly disclosed during discovery. Because discovery has closed, defendant PLANT INSULATION 21 if Plaintiff'is allowedto introduce any evidence, including testimony of fact COMPANY will be prejudiced 22 witnesses, that were not appropriately disclosed. If this motion is not granted, then the Court would be 23 and witmesses in the pretrial discovery phase of this rewarding Plaintiff's failureto fairly disclose evidence case. 25 My 26 Mt 27 Mt 28 i 4825-381 1-3795.1 1 MIL 4: TOEXCLUDE EXPERT WITNESS TESTIMONY FOR THOSE NOT MADE AVAIL FOR DEPO FACTS Plaintiff s responses to discovery identified a limited number of witnesses. In addition, Plaintiff indicated that they have no information to enable Defendant to locate some of the witnesses that were identified. Any witness —and any document or piece of physical evidence —either known or should have been know to Plaintiff and counsel during the discovery phase of their suit. Plaintiff did not ask for more time for discovery, and do not have any other excuse to “spring” any new witness or evidence for the first time at trial. TE LEGAL ARGUMENT 10 The purpose of discovery is to eliminate unfair surprise at trial. One of the principal purposes of i discovery was to do away with the sporting theory of litigation — mainly, surprise at trial. (Williams v. 12 Volkswagenwerks (1986) 180 Cal.App.3d 1244, 1254-1255.) By removing the “game” element from trial 13 preparation, the discovery statutes allow parties to obtain the evidence necessary to evaluate and resolve 14 disputes before the trial begins. (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 376.) 15 Evidence and witnesses not disclosed during discovery should be excluded at trial to prevent the 16 prejudice resulting from undue surprise. Where a party attempts to introduce evidence that was not 17 identified or produced in discovery, the court has the power to exclude such evidence. (Pate v. Channel 18 Lumber Co. (1997) 51 Cal.App.4th 1447, 1455; see Deeter y. Angus (1986) 179 Cal.App.3d 241, 255 19 [exclusion of audiotape not provided in responding to discovery requests].) No prior court order is 20 required before the trial court may exclude such documents or other physical evidence. (Pate, supra 21 at p. 456.) ‘This Court should also exclude any documentary or other evidence that was not produced in 23 response to Defendant’ s discovery requests. With trial set io commence, discovery is now closed. Thus, 24 if Plaintiff attempts to introduce new evidence now, PLANT INSULATION COMPANY and other 25 defendants will be prejudiced. This is true both for fact witnesses who were not disclosed during the 26 discovery phase preceding trial and for witnesses for whom Plaintiff's discovery responses provided no 27 information that would enable PLANT INSULATION COMPANY to locate them. Accordingly, the Court 28 4825-3811-3795.1 2 MIL 4: TO EXCLUDE EXPERT WITNESS TESTIMONY FOR THOSE NOT MADE AVAIL FOR DEPO an order excluding any reference to, or testimony of, fact witnesses not appropriately disclosed should enter | during discovery. Courts have excluded the testimony of undisclosed fact witnesses where plaintiff's counsel “should have known” of a witness’ existence. (Thoren v. Johnston & Washer (1972) 29 Cal.App.3d 270.) In Thoren, the court held that the trial court had authority (under previous Cal. Code Civil Proc., §2019(b)(1)) to make any order to protect a party or witness from annoyance, embarrassment or oppression, and to exclude the testimony of a witness whose name was willfully omitted from the answer to an interrogatory. The court noted that binding a party to its interrogatory answers eliminates surprise at trial, furthering the purpose of discovery. Other statutes also emphasize this goal. For example, Code of Civil 10 Procedure section 2023.030(c) provides the court with authority to exclude evidence not disclosed before il trial. Similarly, a party failing to respond to a demand to exchange expert witness lists may not call unlisted 12 expert witnesses to testify, (Code Civ. Proc., §2034.300.) 13 Of course, a conscious failure to disclose a fact witness also is sufficient cause to exclude that 14 witness’s testimony. “A willful failure does not necessarily include a wrongful intention to disobey the 15 discovery rules. A conscious or intentional failure to act . . . is sufficient to invoke a penalty.” (Sauer v. 16 Superior Court (987) 195 Cal App.3d 213, 227-228.) As in Thoren and Sauer, the omission of witnesses 17 from Plaintiff's discovery responses should preclude their “surprise” appearance at tial. 18 In preparing for trial, PLANT INSULATION COMPANY has relied upon the information, docu- 19 ments and other matters properly obtained during discovery. Consequently, attrial, PLANT INSULATION 29 COMPANY would be substantially prejudiced if plaintiff were allowed to present matters not disclosed 21 in the discovery process before trial. 22 Ti. CONCLUSION 23 Defendant PLANT INSULATION COMPANY requests this court exclude any evidence and any 24 witness not disclosed during discovery in order to avoid surprise and undue prejudice. 25 Dated: Tanuarylgy 2009 LE’ RISBOIS BISGAARD & SMITH LLP 26 aN) Eljzabeth C. Sears 27 ‘ttomey for Defendant PLANT INSULATION COMPANY 28 . 4825-381 1-3795,1 MIL 4. TO EXCLUDE EXPERT WITNESS TEST! ONT FOR THOSE NOT MADE AVAIL FOR DEPO