On December 06, 2001 a Motion,Ex Parte 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: meneil: I law.com ELECTRONICALLY ELIZABETH C. SEARS, SBN 250450 EMAIL: sears@|bbslaw.com FILED Superior Court of California, One Sansome Street, Suite 1400 County of San Francisco San Francisco, CA 94104 Tek: 415.362.2580 J Fax: 415.434.0882 GORDON PARK-LI, Clerk BY: VANESSA WU Deputy Clerk Attomeys for Defendant PLANT INSULATION COMPANY SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO 10 VW JAMES JORDAN } CASE NO. 402113 ) 12 Plaintiff, ) 13 } ASBESTOS-RELATED 14 MOTION IN LIMINE NO, 2: ASBESTOS DEFENDANTS, et ai. ) TO EXCLUDE EVIDENCE OF ANY 15 } MEDICAL OR OTHER SPECIAL DAMAGES Defendants. } NOT PREVIOUSLY DISCLOSED 16 ) 17 Trial Date: January 20, 2009 Action Filed: December 6, 2001 18 19 Defendant PLANT INSULATION COMPANY moves this Court for an order in limine instructing 20 all parties, and their respective attorneys of records not to examine any witness, offer any evidence, ormake 2 any argument concerning medical evidence or special damages not previously disclosed, and limiting 22 special damages for medical expenses to those actually incurred by plaintiff. 23 L ARGUMENT 24 A. Medical Or Special Damages Not Previously Disclosed 25 Evidence and witnesses not disclosed during discovery should be excluded at trial to prevent the 26 prejudice resulting from undue surprise. In Thoren v. Johnson and Washer (1972) 29 Cal.App.3d 270, the 27 y Cal. Code Civil Proc., §2019(b)() to make any (under previous court held that the trial court had authorit 28 order to protect a party or witness from annoyance, embarrassment or oppression, and to exclude the 4838-6298-9571 1 1 MIL 2: TO EXCL EVIDENCE F ANY MED OR OTHER SPCL DAMAGES NOT PREV DISCLOSED. testimony ofa 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 Procedure section 2023.030(c) provides the court with authority to exclude evidence not disclosed before trial. Similarly, a party failing to respond to a demand to exchange expert witness lists may not call unlisted expert witnesses to testify. (Code Civ, Proc. §2034.300.) In preparing for trial, PLANT INSULATION COMPANY has relied upon the information, docu- ments and other matters properly obtained during discovery. Consequently, at trial, PLANT INSULATION COMPANY would be substantially prejudiced if plaintiff were allowed to present matters not disclosed 10 in the discovery process before trial. i B. Special Damages For Medical Expenses Actually Incurred 12 ‘The appropriate measure of recovery for a person injured by another’s tortious conduct is the 13 reasonable value of medical care and services reasonably required and attributable to the tort. Melone v, 14 Sierra Railway Co. 151 Cal.113, 115 (1907). In California, Hanifv. Housing Authority of Yolo County 200 15 Cal.App.3d 635, 641 (Cal. Ct, App. 1988), limits a plaintiff's recovery of special damages to the amount 16 actually paid. 17 ‘The issue in Hanif was “whether the ‘reasonable value’ measure of recovery means that an injured 18 plaintiff may recover from the tortfeasor more than the actual amount he paid or for which he incurred 19 liability for past medical care and services.” Hanif, 200 Cal.App.3d at 640. 20 In Hanif the plaintiff incurred doctor and hospital bills in the amount of $31,618, yet his health al at 639. “There was no evidence, however, that plaintiff insurer only paid $19,317. Hanif, 200 Cal.App.3d 22 was or would become liable for the difference,” as the balance was “written off” by the hospital. Jd. 23 Over defendant’s objections, the trial court permitted plaintiff to introduce evidence of the total 24 amount of bills ($31,618) as the “reasonable value™ of medical services rendered. Jd On appeal, the 25 ed to recover Court reasoned that, basedon Califomia case law “a plaintiffis entitl up to, and no more than, 26 the actual amount expended or incurred for past medical services so long as that amount is reasonable.” 27 Jd. at 643 (emphasis in original). In holding that it was error to awatd special damages for past medical care 28 and services in excess of the amount actually paid, the Hanif Court set forth the following rule: 4338-6298-957 1 2 Mil. 2; TO EXCL EVIDENCE F ANY MED OR OTHER SPCL DAMAGES NOT PREV DISCLOSED. [When the evidence shows a sum certain to have been paid or incurred for past medical care and services, whether by the plaintiff or by an independent source, the sum certain is the most the plaintiff may recover for that care despite the fact that it may have been less than the prevailing market rate. /d. at 641. Several years later, in Nishihama v. City and County of San Francisca 93 Cal App Ath 298 (Cal. Ct. App. 2001), the Court of Appeal reduced a trial court’s award of $17,168 for medical expenses to $3,600, which was the amount actually paid. The $17,168 was based on California Pacific Medical Center’s (“CPMC”) normal rates, However, plaintiff had health insurance with Blue Cross, and under Blue Cross’s contract with CPMC, CPMC accepted $3,600 as payment in full for plaintiff's medical treatment. Following trial of the case, CPMC filed a lien against the judgment for $17,168, its normal rates. 10 Plaintiff argued she should not have to accept $3,600 in damages and risk the possibility she would have Il to pay CPMC $17,168 on the lien. Consistent with Hanif, the Nishihama Court found, “CPMC’s lien 12 rights do not extend beyond the amountit agreed to receive from Blue Cross as payment in full for services 13 provided to plaintiff." Since CPMC had been paid that amount, it had no lien rights in damages awarded 14 to the plaintiff and the trial court therefore erred in awarding the plaintiff more than $3,600 for services 15 provided by CPMC. Nishihama, 93 Cal.App.4th at 307. 16 Under theruling in Hanif, supported by the later decided Nishihama, plaintiff's recovery for special 17 damages in this case is limited to the amount actually paid, and therefore, evidence of any amount in excess 18 of that must be excluded at trial. 19 Hi CONCLUSION 20 For the above reasons, PLANT INSULATION COMPANY requests this court issue an Order to 21 exclude evidence of any medical or other special damages not previously disclosed, and prohibiting plaintiff from introducing evidence of any and all medical expenses not actually sustained by Plaintiff in 23 this matter. 24 Dated: January& 2009 LEWIS BRISBOIS BISGAARD & SMITH LLP 25 26 Elyzabeth C. Sears 27 tiorney for Defendant PLANT INSULATION COMPANY 28 A838-6298-9571.1 MIL 2: : TO EXCL EVIDENCE F ANY MED OR TER SPCL DAMAGES NOT PREV DISCLOSED.