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William M. Hake, Esq. (SBN 110956)
Bill. Hake@wilsonelser.com
John E. Rosenthal, Esq. (SBN 233591)
John.Rosenthal@wilsonelser.com
B. Gardiner McKleroy, Esq. (SBN 239367)
Gardiner. McKleroy@wilsonelser.com
Marion V. Cruz (SBN 244223)
Marion.C. wilsonelser.com
Whitney C. Barnecut (SBN 283012)
Whitney. Bamecut@wilsonelser.com
WILSON, ELSER, MOSKOWITZ,
EDELMAN & DICKER LLP
525 Market Street, 17th Floor
San Francisco, California 94105
Telephone: (415) 433-0990
Facsimile: (415) 434-1370
Attorneys for Defendants
GOLDEN GATE DRYWALL
ELECTRONICALLY
FILED
Superior Court of Californi
County of San Francisco
10/06/2015
Clerk of the Court
BY-ALISON AGBAY
Deputy CI
PACIFIC COAST BUILDING PRODUCTS, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
KENNETH MOSES,
Plaintiff,
Vv.
KAISER GYPSUM COMPANY, INC., et al.
Defendants.
Case No.: CGC-13-276180
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
DEFENDANTS GOLDEN GATE
DRYWALL AND PACIFIC COAST
BUILDING PRODUCTS, INC.’S EX
PARTE APPLICATION FOR ORDER
BARRING TESTIMONY OR EVIDENCE
OF DR. DONALD BREYER AT TRIAL, OR|
ALTERNATIVELY FOR ORDER
SHORTENING TIME ON MOTION
Date: October 6, 2015
Time: 11:00am.
Dept: 503
Action Filed: August 21, 2013
Trial Date: August 31, 2015
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS GOLDEN GATE DRYWALL AND PACIFIC COAST
BUILDING PRODUCTS, INC.’S EX PARTE APPLICATION FOR ORDER BARRING TESTIMONY OR EVIDENCE OF DR. DONALD
BREYER AT TRIAL, OR ALTERNATIVELY FOR ORDER SHORTENING TIME ON MOTION
1453507v.1om NDA HW RB WN
MEMORANDUM OF POINTS AND AUTHORITIES
I. APPLICATION
Defendants Golden Gate Drywall (“GGD”) and Pacific Coast Building Products, Inc.|
(“PCBP”), hereby apply ex parte to this Court for an Order Barring Testimony Or Evidence Of Dr]
Donald Breyer At Trial, Or Alternatively For Order Shortening Time On Motion. GGD and PCB
appreciate the Court’s participation and guidance at the September 25, 2015 Informal Discovery}
Conference on this issue, but have been unable to obtain Plaintiffs concurrence on a lette:
memorializing the agreement that was reached.
I. BASIS FOR EX PARTE RELIEF REQUESTED
This Application which is made under Code of Civil Procedure sections 2024.020(b) an
i 7034.300-oR the grounds that Plaintiff disclosed, without leave, two reports of his expert Dr. Donald|
7 Breyer after the close of discovery and without making Dr. Breyer available for deposition]
| Plaintiff further disclosed, without leave, a supplemental report of his expert Dr. Richard Levy}
which relied on the Dr. Breyer reports, after GGD and PCBP had taken Dr. Levy’s deposition, andl
after the close of discovery. GGD and PCBP contend that the late-disclosed reports of Dr. Breyer,
and the late-disclosed supplemental report of Dr. Levy that relies on Dr. Breyer’s reports, wer
presented without leave after the close of expert discovery, and must not be used at trial. |
HH. THE PARTIES RECEIVED NOTICE PER CODE
Defendant GGD provided written notice to all parties of this ex parte application on October,
5, 2015, in compliance with the manner and time set forth in California Rule of Court, Rule 3.1203,
Declaration of John E. Rosenthal (“Rosenthal Decl.”), Exhibit (“Exh.”) P, October 5, 2015 letter to]
Brayton Purcell and all counsel.
IV. FACTUAL SUMMARY
it Pursuant to the initial trial date, expert discovery closed in this matter on May 3, 2015.
| plaintiff has never sought or obtained leave to re-open expert discovery. GGD and PCBP request
the withdrawal of three expert reports that Plaintiff disclosed after the discovery cutoff.
On March 10, 2015, Plaintiff served his expert witness designation, including the December
20, 2014 and January 24, 2015 reports of his expert Dr. Richard Levy. Plaintiff's Expert Witness
2
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS GOLDEN GATE DRYWALL AND PACIFIC COAST
BUILDING PRODUCTS, INC.’S EX PARTE APPLICATION FOR ORDER BARRING TESTIMONY OR EVIDENCE OF DR. DONALD
BREYER AT TRIAL, OR ALTERNATIVELY FOR ORDER SHORTENING TIME ON MOTION,
1453507v.1Designation, Attached as Exh. A to Rosenthal Decl. Dr. Donald Breyer was listed on the
designation, but no reports of Dr. Breyer were disclosed. /d. On April 2, 2015, Plaintiff served his
Notice of Availability of Designated Expert Witnesses for Deposition, including availability for Dr.
Levy. Plaintiffs April 2, 2015 Notice of Availability of Expert of Designated Expert Witnesses for
Deposition, Attached as Exh. B to Rosenthal Decl. GGD and PCBP timely accepted Plaintiff's
offers for the deposition of Dr. Levy, as well as every other Plaintiff expert offering case specific
testimony. GGD and PCBP’s Acceptance of Plaintiff Deposition Offers, Attached as Exhibit C to
Rosenthal Decl. Dr. Breyer was never timely offered for deposition. Rosenthal Decl...
On April 29, 2015, GGD and PCBP took Dr. Levy’s deposition. April 29, 2015 Deposition
of Dr. Richard Levy, Attached as Exh. D to Rosenthal Decl. In that deposition, Dr. Levy confirmed
bet
Co 0 mM YN DH BWR =
| dhat his December 20, 2014 and January 24, 2015 reports contained all the opinions he had formed.
dd, at p. 26:3-8. Importantly, Dr. Levy did not diagnose Mr. Moses with asbestos related interstitial
fibrosis, or asbestosis. Dr. Richard Levy’s Reports Dated December 20, 2014 and January 24, 2015,
further confirmed during his deposition that he had given testimony about all of his opinions. Exh.
D to Rosenthal Decl., p. 45:4-13. Accordingly, counsel for GGD and PCBP reserved the right to
i
—
exclude any opinions formed after the April 29, 2015 deposition. Jd.
Without leave of Court, on July 28, 2015, Plaintiff served two reports from Dr. Donald
Breyer. The first, dated February 25, 2015, indicates that Dr. Breyer found Plaintiff Kenneth Moses
20 || had no asbestos-related lung abnormalities. February 25, 2015 Report of Dr. Donald Breyer,
21 |} Attached as Exh. E to Rosenthal Decl. In the second report, dated July 9, 2015, Dr. Breyer found
22 || that Mr. Moses had developed asbestos related interstitial fibrosis. July 9, 2015 Report of Dr.
23 || Donald Breyer, Attached as Exh. F to Rosenthal Decl. The July 9, 2015 report by Dr. Breyer is the
24 | first time any of Plaintiff's experts opined that Mr. Moses has asbestos related interstitial fibrosis, or|
{
1
|
i
n
14 included in Plaintiff's Expert Witness Designation, Attached as Exh. A to Rosenthal Decl. Dr. Levy
25 || asbestosis. Rosenthal Decl., { 7. Indeed, Plaintiff's pulmonology and B-reader expert, Dr. Alvin
26 || Schonfeld, testified that he “didn’t diagnose Mr. Moses with asbestosis.” May 4, 2015 Deposition|
27 || of Dr. Alvin Schonfeld, Attached as Exh. G to Rosenthal Decl., p. 15:6-16.
28
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS GOLDEN GATE DRYWALL AND PACIFIC COAST
BUILDING PRODUCTS, INC.’S EX PARTE APPLICATION FOR ORDER BARRING TESTIMONY OR EVIDENCE OF DR. DONALD.
BREYER AT TRIAL, OR ALTERNATIVELY FOR ORDER SHORTENING TIME ON MOTION
1453507v.1Se wewru Aw ewe nN ew
oe
yb =
Again without leave of Court, on August 24, 2015, Plaintiff served Dr. Richard Levy’s
supplemental report dated July 31, 2015. July 31, 2015 Supplemental Report of Dr. Richard Levy,
Attached as Exh. H to Rosenthal Decl. Dr. Levy’s July 31, 2015 report makes clear that he relied on
one or more unidentified reports of Dr. Donald Breyer in order to form his new opinion — that Mr.
Moses has asbestos-related interstitial fibrosis (asbestosis). Id.
On September 4, 2015, GGD and PCBP sent a letter to Plaintiff's counsel, requesting to
meet and confer regarding the untimely disclosed reports from Dr. Breyer and Dr. Levy. GGD and
PCBP Letter Dated September 4, 2015, Attached as Exh. I to Rosenthal Decl. After receiving no
response, GGD and PCBP sent another letter to Plaintiff's counsel on September 9, 2015. GGD and
PCBP Letter Dated September 9, 2015, Attached as Exh. J to Rosenthal Decl. On September 10,
2015, Plaintif?'s counsel sent an email to counsel for GGD and PCBP, asserting that the new reports|
were appropriate duc to Plaintiff's continuing disease process, notwithstanding that the initial trial
date had come and gone. Brayton Email Dated September 10, 2015, Attached as Exh. K to
Rosenthal Decl. Counsel for GGD and PCBP attempted to meet and confer with counsel for
Plaintiff by telephone on September 14, 2015, but the parties were not able to reach consensus, and
agreed to attend an Informal Discovery Conference on September 25, 2015. Rosenthal Decl., { 13.
Counsel for each side continued i attempt to meet and confer by email, without success, and on
September 15, 2015 counsel agreed to meet at the informal hearing on September 25, 2015. Email
Meet and Confer as of September 15, 2015, Attached as Exh. L to Rosenthal Decl.
On September 16, 2015, Plaintiff sent a letter offering Dr. Donald Breyer for initial
deposition and Dr. Richard Levy for further deposition in this case on dates to be determined,
between September 28 and October 13, 2015. Brayton Letter of September 16, 2015, Attached as
Exh. M to Rosenthal Decl. GGD and PCBP objected to the offers on the grounds that Dr. Breyer
and Dr. Levy were offered for deposition after the expert witness discovery cutoff. GGD and PCBP
September 17, 2015 Objection to Untimely Deposition Offers of Dr. Breyer and Dr. Levy, Attached
as Exh. N to Rosenthal Decl. GGD and PCBP further objected that the deposition offers, and the
deadline of September 23, 2015 to accept them, were made in bad faith given that Plaintiff's
counsel had already agreed to attend this informal discovery conference on September 25, to
4
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS GOLDEN GATE DRYWALL AND PACIFIC COAST
BUILDING PRODUCTS, INC.’S EX PARTE APPLICATION FOR ORDER BARRING TESTIMONY OR EVIDENCE OF DR. DONALD
BREYER AT TRIAL, OR ALTERNATIVELY FOR ORDER SHORTENING TIME ON MOTION
1453507v.1C0 wm YN DH WHF wWN
YN YN NN NR NN Be ee Be Be we ew eB Se
ee QA AP BN |= FS Ge RAAB oHH = S
specifically address GGD and PCBP’s objections to the untimely reports and late-disclosed
opinions of Dr. Breyer and Dr. Levy. Id.
On September 25, 2015, counsel for GGD and PCBP met with Plaintiff's counsel before the
Court for Informal Discovery Conference. Upon completion of the conference, counsel for GGD
and PCBP understood that Plaintiff's counsel had agreed that the reports and opinions of Dr.
Donald Breyer disclosed after the May 3, 2015 close of expert discovery would not be used or
referenced in Plaintiff's case-in-chief, and would not be relied on by any of Plaintiff's experts in
Plaintiffs case-in-chief. Rosenthal Decl., § 17. GGD and PCBP’s counsel further understood that
Plaintiff's counsel agreed that Dr. Breyer would not testify in Plaintiff's case-in-chief. Id. With
guidance from the Court, the parties agreed that counsel for GGD and PCBP would prepare a letter
memorializing the binding agreement. /d.
Over the next several days, GGD and PCBP sent three versions of proposed letters
memorializing the agreement reached at the conference. Email Meet and Confer of September 28,
2015 through October 2, 2015 with included “Draft” Letter, Attached as Exh. O to Rosenthal Decl.
Plaintiff’s counsel rejected each letter in turn. Id. The parties agreed to discuss the matter by
telephone on September 30, 2015, but Plaintiff's counsel was not available. Jd. The parties then
agreed to speak by telephone on October 5,20i5, but were unable to reach each other for a live
conversation, and exchanged voicemail messages. Jd.: Resenthal Decl., 18. Plaintiff's counsel |
repeated by way of voicemail on October 5, 2015 that he would not agree to any of the letters
proposed by GGD and PCBP’s counsel. Rosenthat Decl., {{ 18. GGD and PCBP’s counsel left a
return voicemail for Plaintiff's counsel, stating that GGD and PCBP would serve notice of this ex
parte hearing, but that GGD and PCBP’s. counsel remained willing to discuss the matter to try to
reach an agreement, and take the ex parte hearing off calendar. /d. Plaintiff's counsel did not retum
the call, and Plaintiff's only response was a written Opposition to the ex parte. Id.
The untimely reports of Dr. Breyer were presented without leave after the close of
discovery. Plaintiff never sought or obtained leave to re-open expert discovery. Therefore, the
reports and opinions of Dr. Donald Breyer disclosed after the May 3, 2015 close of expert discovery]
5
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS GOLDEN GATE DRYWALL AND PACIFIC COAST
BUILDING PRODUCTS, INC.’S EX PARTE APPLICATION FOR ORDER BARRING TESTIMONY OR EVIDENCE OF DR. DONALD
BREYER AT TRIAL, OR ALTERNATIVELY FOR ORDER SHORTENING TIME ON MOTION
1453507v.1Ce YN DH FY N
NN YN RN NNN Be ew Be Be ew ewe eB ee
e2YQ4 HAA PF BN =F FSO we NAA RBH NH KF SS
must not be used or referenced in Plaintiff's case-in-chief, and must not be relied on by any of
Plaintiff's experts, including Dr. Levy, in Plaintiff's case-in-chief.
Vv. AUTHORITY
A. Dr. Breyer’s Reports Are Untimely And Inadmissible
Plaintiff's attempt to use the reports of Dr. Breyer is a patent violation of California Code
of Civil Procedure § 2034 ef seg. California Code of Civil Procedure § 2034.300 provides for
enforcement of the expert witness disclosure requirements by allowing the trial court to impose an
evidentiary sanction, preventing the party from offering expert witness testimony at trial:
[O}p objection of any party who has made a complete and timely
compliance with Section 2034.260 the trial court shall exciude from
evidence the expert opinion of any witness that is offered by any
party who has unreasonably failed to ... [p]roduce reports and
writings of expert witnesses under subdivision 2034270 __. [or mJake
that expert available for a deposition under Article 3 (commencing
with Section 2034.410) [emphasis added].
Dr. Breyer’s expert reports were disclosed untimely, and he was never made available for
deposition. His “reports” are therefore inadmissible, unreliable hearsay that cannot be used for any
purpose, including as the basis for any other expert’s opinions.
A. Dr. Levy’s Supplemental Report Is Untimely And Lmpermissibly Relies On Dr,
Breyer
Since he relied on Dr. Breyer’s inadmissible, undisclosed reports, Dr. Levy"s opinions as
summarized in his July 31, 2015 report are tainted, and must be withdrawn. Dr. Levy*stetiance on
improper materials has severely prejudiced GGD and PCBP and has given Plaintiff a significant
advantage in the litigation proceeding. In addition, Plaintiff neither sought nor was he granted
permission for Dr. Levy to form new opinions after the close of discovery.
Evidence Code § 352 states the Court may “exclude evidence ifits probative value is
substantially outweighed by the probability that its admission will (a) zecessitate umdue
consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.” A number of courts have approved the used of Section 352 to exclude
prejudicial, wasteful or confusing evidence. See, People v. Cardenas 31 Cal3d 897, 904 (1982)
6
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS GOLDEN GATE DRYWALL AND PACIFIC COAST
BUILDING PRODUCTS, INC.’S EX PARTE APPLICATION FOR ORDER BARRING TESTIMONY OR EVIDENCE OF DR. DONALD
BREYER AT TRIAL, OR ALTERNATIVELY FOR ORDER SHORTENING TIME ON MOTION
1453507v.1Com YN DH vA
(prejudicial evidence); People v. Sanders 11 Cal.App 4th 475, 514 (1995) (undue consumption of
time); People v. Wagner 138 Cal. App 3d 473, 481 (1982) (jury confusion). Code of Civil Procedure:
§ 2023.030 (c) states, “The court may impose an evidence sanction by an order prohibiting any
party engaging in the misuse of the discovery process from introducing designated matters in
evidence.”
Dr. Levy has relied on one or more reports from Dr. Breyer in forming his opinions. This is
improper as Dr. Breyer’s report is inadmissible, unreliable hearsay. Further, by producing Dr.
Levy’s and Dr. Breyer’s reports months after the expert discovery cut off and not pursuant to any
Court order, Plaintiff has egregiously interfered with GGD and PCBP’s ability to prepare their
defenses in this case. Plaintiff's use of Dr. Levy’s and Dr. Breyer’s reports constitutes deliberate
misuse of the discovery process, which has given him an unfair advantage and prejudiced GGD and
PCBP in this matter. Dr. Levy’s supplemental report must be withdrawn or excluded.
VI. CONCLUSION
For the reasons set forth above, Defendants GGD and PCB respectfully request that the|
Court grant an Order Barring Testimony Or Evidence Of Dr. Donald Breyer At Trial, oy
Alternatively For Order Shortening Time On Motion.
Dated: October 6, 2015 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER
LLP
Wilhan’M. Hake
John E. Rosenthal
B. Gardiner Mckleroy
Marion V. Cruz
Whitney C. Barmecut
Attomeys for Defendants
GOLDEN GATE DRYWALL
PACIFIC COAST BUILDING PRODUCTS, INC.
:
By:
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS GOLDEN GATE DRYWALL AND PACIFIC COAST
BUILDING PRODUCTS, INC.’S EX PARTE APPLICATION FOR ORDER BARRING TESTIMONY OR EVIDENCE OF DR. DONALD
BREYER AT TRIAL, OR ALTERNATIVELY FOR ORDER SHORTENING TIME ON MOTION
1453507v.1
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B wWwoN William M. Hake, Esq. (SBN 110956) Bill. Hake@wilsonelser.com John E. Rosenthal, Esq. (SBN 233591) John.Rosenthal@wilsonelser.com B. Gardiner McKleroy, Esq. (SBN 239367) Gardiner. McKleroy@wilsonelser.com Marion V. Cruz (SBN 244223) Marion.C. wilsonelser.com Whitney C. Barnecut (SBN 283012) Whitney. Bamecut@wilsonelser.com WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 525 Market Street, 17th Floor San Francisco, California 94105 Telephone: (415) 433-0990 Facsimile: (415) 434-1370 Attorneys for Defendants GOLDEN GATE DRYWALL ELECTRONICALLY FILED Superior Court of Californi County of San Francisco 10/06/2015 Clerk of the Court BY-ALISON AGBAY Deputy CI PACIFIC COAST BUILDING PRODUCTS, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO KENNETH MOSES, Plaintiff, Vv. KAISER GYPSUM COMPANY, INC., et al. Defendants. Case No.: CGC-13-276180 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS GOLDEN GATE DRYWALL AND PACIFIC COAST BUILDING PRODUCTS, INC.’S EX PARTE APPLICATION FOR ORDER BARRING TESTIMONY OR EVIDENCE OF DR. DONALD BREYER AT TRIAL, OR| ALTERNATIVELY FOR ORDER SHORTENING TIME ON MOTION Date: October 6, 2015 Time: 11:00am. Dept: 503 Action Filed: August 21, 2013 Trial Date: August 31, 2015 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS GOLDEN GATE DRYWALL AND PACIFIC COAST BUILDING PRODUCTS, INC.’S EX PARTE APPLICATION FOR ORDER BARRING TESTIMONY OR EVIDENCE OF DR. DONALD BREYER AT TRIAL, OR ALTERNATIVELY FOR ORDER SHORTENING TIME ON MOTION 1453507v.1om NDA HW RB WN MEMORANDUM OF POINTS AND AUTHORITIES I. APPLICATION Defendants Golden Gate Drywall (“GGD”) and Pacific Coast Building Products, Inc.| (“PCBP”), hereby apply ex parte to this Court for an Order Barring Testimony Or Evidence Of Dr] Donald Breyer At Trial, Or Alternatively For Order Shortening Time On Motion. GGD and PCB appreciate the Court’s participation and guidance at the September 25, 2015 Informal Discovery} Conference on this issue, but have been unable to obtain Plaintiffs concurrence on a lette: memorializing the agreement that was reached. I. BASIS FOR EX PARTE RELIEF REQUESTED This Application which is made under Code of Civil Procedure sections 2024.020(b) an i 7034.300-oR the grounds that Plaintiff disclosed, without leave, two reports of his expert Dr. Donald| 7 Breyer after the close of discovery and without making Dr. Breyer available for deposition] | Plaintiff further disclosed, without leave, a supplemental report of his expert Dr. Richard Levy} which relied on the Dr. Breyer reports, after GGD and PCBP had taken Dr. Levy’s deposition, andl after the close of discovery. GGD and PCBP contend that the late-disclosed reports of Dr. Breyer, and the late-disclosed supplemental report of Dr. Levy that relies on Dr. Breyer’s reports, wer presented without leave after the close of expert discovery, and must not be used at trial. | HH. THE PARTIES RECEIVED NOTICE PER CODE Defendant GGD provided written notice to all parties of this ex parte application on October, 5, 2015, in compliance with the manner and time set forth in California Rule of Court, Rule 3.1203, Declaration of John E. Rosenthal (“Rosenthal Decl.”), Exhibit (“Exh.”) P, October 5, 2015 letter to] Brayton Purcell and all counsel. IV. FACTUAL SUMMARY it Pursuant to the initial trial date, expert discovery closed in this matter on May 3, 2015. | plaintiff has never sought or obtained leave to re-open expert discovery. GGD and PCBP request the withdrawal of three expert reports that Plaintiff disclosed after the discovery cutoff. On March 10, 2015, Plaintiff served his expert witness designation, including the December 20, 2014 and January 24, 2015 reports of his expert Dr. Richard Levy. Plaintiff's Expert Witness 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS GOLDEN GATE DRYWALL AND PACIFIC COAST BUILDING PRODUCTS, INC.’S EX PARTE APPLICATION FOR ORDER BARRING TESTIMONY OR EVIDENCE OF DR. DONALD BREYER AT TRIAL, OR ALTERNATIVELY FOR ORDER SHORTENING TIME ON MOTION, 1453507v.1Designation, Attached as Exh. A to Rosenthal Decl. Dr. Donald Breyer was listed on the designation, but no reports of Dr. Breyer were disclosed. /d. On April 2, 2015, Plaintiff served his Notice of Availability of Designated Expert Witnesses for Deposition, including availability for Dr. Levy. Plaintiffs April 2, 2015 Notice of Availability of Expert of Designated Expert Witnesses for Deposition, Attached as Exh. B to Rosenthal Decl. GGD and PCBP timely accepted Plaintiff's offers for the deposition of Dr. Levy, as well as every other Plaintiff expert offering case specific testimony. GGD and PCBP’s Acceptance of Plaintiff Deposition Offers, Attached as Exhibit C to Rosenthal Decl. Dr. Breyer was never timely offered for deposition. Rosenthal Decl... On April 29, 2015, GGD and PCBP took Dr. Levy’s deposition. April 29, 2015 Deposition of Dr. Richard Levy, Attached as Exh. D to Rosenthal Decl. In that deposition, Dr. Levy confirmed bet Co 0 mM YN DH BWR = | dhat his December 20, 2014 and January 24, 2015 reports contained all the opinions he had formed. dd, at p. 26:3-8. Importantly, Dr. Levy did not diagnose Mr. Moses with asbestos related interstitial fibrosis, or asbestosis. Dr. Richard Levy’s Reports Dated December 20, 2014 and January 24, 2015, further confirmed during his deposition that he had given testimony about all of his opinions. Exh. D to Rosenthal Decl., p. 45:4-13. Accordingly, counsel for GGD and PCBP reserved the right to i — exclude any opinions formed after the April 29, 2015 deposition. Jd. Without leave of Court, on July 28, 2015, Plaintiff served two reports from Dr. Donald Breyer. The first, dated February 25, 2015, indicates that Dr. Breyer found Plaintiff Kenneth Moses 20 || had no asbestos-related lung abnormalities. February 25, 2015 Report of Dr. Donald Breyer, 21 |} Attached as Exh. E to Rosenthal Decl. In the second report, dated July 9, 2015, Dr. Breyer found 22 || that Mr. Moses had developed asbestos related interstitial fibrosis. July 9, 2015 Report of Dr. 23 || Donald Breyer, Attached as Exh. F to Rosenthal Decl. The July 9, 2015 report by Dr. Breyer is the 24 | first time any of Plaintiff's experts opined that Mr. Moses has asbestos related interstitial fibrosis, or| { 1 | i n 14 included in Plaintiff's Expert Witness Designation, Attached as Exh. A to Rosenthal Decl. Dr. Levy 25 || asbestosis. Rosenthal Decl., { 7. Indeed, Plaintiff's pulmonology and B-reader expert, Dr. Alvin 26 || Schonfeld, testified that he “didn’t diagnose Mr. Moses with asbestosis.” May 4, 2015 Deposition| 27 || of Dr. Alvin Schonfeld, Attached as Exh. G to Rosenthal Decl., p. 15:6-16. 28 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS GOLDEN GATE DRYWALL AND PACIFIC COAST BUILDING PRODUCTS, INC.’S EX PARTE APPLICATION FOR ORDER BARRING TESTIMONY OR EVIDENCE OF DR. DONALD. BREYER AT TRIAL, OR ALTERNATIVELY FOR ORDER SHORTENING TIME ON MOTION 1453507v.1Se wewru Aw ewe nN ew oe yb = Again without leave of Court, on August 24, 2015, Plaintiff served Dr. Richard Levy’s supplemental report dated July 31, 2015. July 31, 2015 Supplemental Report of Dr. Richard Levy, Attached as Exh. H to Rosenthal Decl. Dr. Levy’s July 31, 2015 report makes clear that he relied on one or more unidentified reports of Dr. Donald Breyer in order to form his new opinion — that Mr. Moses has asbestos-related interstitial fibrosis (asbestosis). Id. On September 4, 2015, GGD and PCBP sent a letter to Plaintiff's counsel, requesting to meet and confer regarding the untimely disclosed reports from Dr. Breyer and Dr. Levy. GGD and PCBP Letter Dated September 4, 2015, Attached as Exh. I to Rosenthal Decl. After receiving no response, GGD and PCBP sent another letter to Plaintiff's counsel on September 9, 2015. GGD and PCBP Letter Dated September 9, 2015, Attached as Exh. J to Rosenthal Decl. On September 10, 2015, Plaintif?'s counsel sent an email to counsel for GGD and PCBP, asserting that the new reports| were appropriate duc to Plaintiff's continuing disease process, notwithstanding that the initial trial date had come and gone. Brayton Email Dated September 10, 2015, Attached as Exh. K to Rosenthal Decl. Counsel for GGD and PCBP attempted to meet and confer with counsel for Plaintiff by telephone on September 14, 2015, but the parties were not able to reach consensus, and agreed to attend an Informal Discovery Conference on September 25, 2015. Rosenthal Decl., { 13. Counsel for each side continued i attempt to meet and confer by email, without success, and on September 15, 2015 counsel agreed to meet at the informal hearing on September 25, 2015. Email Meet and Confer as of September 15, 2015, Attached as Exh. L to Rosenthal Decl. On September 16, 2015, Plaintiff sent a letter offering Dr. Donald Breyer for initial deposition and Dr. Richard Levy for further deposition in this case on dates to be determined, between September 28 and October 13, 2015. Brayton Letter of September 16, 2015, Attached as Exh. M to Rosenthal Decl. GGD and PCBP objected to the offers on the grounds that Dr. Breyer and Dr. Levy were offered for deposition after the expert witness discovery cutoff. GGD and PCBP September 17, 2015 Objection to Untimely Deposition Offers of Dr. Breyer and Dr. Levy, Attached as Exh. N to Rosenthal Decl. GGD and PCBP further objected that the deposition offers, and the deadline of September 23, 2015 to accept them, were made in bad faith given that Plaintiff's counsel had already agreed to attend this informal discovery conference on September 25, to 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS GOLDEN GATE DRYWALL AND PACIFIC COAST BUILDING PRODUCTS, INC.’S EX PARTE APPLICATION FOR ORDER BARRING TESTIMONY OR EVIDENCE OF DR. DONALD BREYER AT TRIAL, OR ALTERNATIVELY FOR ORDER SHORTENING TIME ON MOTION 1453507v.1C0 wm YN DH WHF wWN YN YN NN NR NN Be ee Be Be we ew eB Se ee QA AP BN |= FS Ge RAAB oHH = S specifically address GGD and PCBP’s objections to the untimely reports and late-disclosed opinions of Dr. Breyer and Dr. Levy. Id. On September 25, 2015, counsel for GGD and PCBP met with Plaintiff's counsel before the Court for Informal Discovery Conference. Upon completion of the conference, counsel for GGD and PCBP understood that Plaintiff's counsel had agreed that the reports and opinions of Dr. Donald Breyer disclosed after the May 3, 2015 close of expert discovery would not be used or referenced in Plaintiff's case-in-chief, and would not be relied on by any of Plaintiff's experts in Plaintiffs case-in-chief. Rosenthal Decl., § 17. GGD and PCBP’s counsel further understood that Plaintiff's counsel agreed that Dr. Breyer would not testify in Plaintiff's case-in-chief. Id. With guidance from the Court, the parties agreed that counsel for GGD and PCBP would prepare a letter memorializing the binding agreement. /d. Over the next several days, GGD and PCBP sent three versions of proposed letters memorializing the agreement reached at the conference. Email Meet and Confer of September 28, 2015 through October 2, 2015 with included “Draft” Letter, Attached as Exh. O to Rosenthal Decl. Plaintiff’s counsel rejected each letter in turn. Id. The parties agreed to discuss the matter by telephone on September 30, 2015, but Plaintiff's counsel was not available. Jd. The parties then agreed to speak by telephone on October 5,20i5, but were unable to reach each other for a live conversation, and exchanged voicemail messages. Jd.: Resenthal Decl., 18. Plaintiff's counsel | repeated by way of voicemail on October 5, 2015 that he would not agree to any of the letters proposed by GGD and PCBP’s counsel. Rosenthat Decl., {{ 18. GGD and PCBP’s counsel left a return voicemail for Plaintiff's counsel, stating that GGD and PCBP would serve notice of this ex parte hearing, but that GGD and PCBP’s. counsel remained willing to discuss the matter to try to reach an agreement, and take the ex parte hearing off calendar. /d. Plaintiff's counsel did not retum the call, and Plaintiff's only response was a written Opposition to the ex parte. Id. The untimely reports of Dr. Breyer were presented without leave after the close of discovery. Plaintiff never sought or obtained leave to re-open expert discovery. Therefore, the reports and opinions of Dr. Donald Breyer disclosed after the May 3, 2015 close of expert discovery] 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS GOLDEN GATE DRYWALL AND PACIFIC COAST BUILDING PRODUCTS, INC.’S EX PARTE APPLICATION FOR ORDER BARRING TESTIMONY OR EVIDENCE OF DR. DONALD BREYER AT TRIAL, OR ALTERNATIVELY FOR ORDER SHORTENING TIME ON MOTION 1453507v.1Ce YN DH FY N NN YN RN NNN Be ew Be Be ew ewe eB ee e2YQ4 HAA PF BN =F FSO we NAA RBH NH KF SS must not be used or referenced in Plaintiff's case-in-chief, and must not be relied on by any of Plaintiff's experts, including Dr. Levy, in Plaintiff's case-in-chief. Vv. AUTHORITY A. Dr. Breyer’s Reports Are Untimely And Inadmissible Plaintiff's attempt to use the reports of Dr. Breyer is a patent violation of California Code of Civil Procedure § 2034 ef seg. California Code of Civil Procedure § 2034.300 provides for enforcement of the expert witness disclosure requirements by allowing the trial court to impose an evidentiary sanction, preventing the party from offering expert witness testimony at trial: [O}p objection of any party who has made a complete and timely compliance with Section 2034.260 the trial court shall exciude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to ... [p]roduce reports and writings of expert witnesses under subdivision 2034270 __. [or mJake that expert available for a deposition under Article 3 (commencing with Section 2034.410) [emphasis added]. Dr. Breyer’s expert reports were disclosed untimely, and he was never made available for deposition. His “reports” are therefore inadmissible, unreliable hearsay that cannot be used for any purpose, including as the basis for any other expert’s opinions. A. Dr. Levy’s Supplemental Report Is Untimely And Lmpermissibly Relies On Dr, Breyer Since he relied on Dr. Breyer’s inadmissible, undisclosed reports, Dr. Levy"s opinions as summarized in his July 31, 2015 report are tainted, and must be withdrawn. Dr. Levy*stetiance on improper materials has severely prejudiced GGD and PCBP and has given Plaintiff a significant advantage in the litigation proceeding. In addition, Plaintiff neither sought nor was he granted permission for Dr. Levy to form new opinions after the close of discovery. Evidence Code § 352 states the Court may “exclude evidence ifits probative value is substantially outweighed by the probability that its admission will (a) zecessitate umdue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” A number of courts have approved the used of Section 352 to exclude prejudicial, wasteful or confusing evidence. See, People v. Cardenas 31 Cal3d 897, 904 (1982) 6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS GOLDEN GATE DRYWALL AND PACIFIC COAST BUILDING PRODUCTS, INC.’S EX PARTE APPLICATION FOR ORDER BARRING TESTIMONY OR EVIDENCE OF DR. DONALD BREYER AT TRIAL, OR ALTERNATIVELY FOR ORDER SHORTENING TIME ON MOTION 1453507v.1Com YN DH vA (prejudicial evidence); People v. Sanders 11 Cal.App 4th 475, 514 (1995) (undue consumption of time); People v. Wagner 138 Cal. App 3d 473, 481 (1982) (jury confusion). Code of Civil Procedure: § 2023.030 (c) states, “The court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.” Dr. Levy has relied on one or more reports from Dr. Breyer in forming his opinions. This is improper as Dr. Breyer’s report is inadmissible, unreliable hearsay. Further, by producing Dr. Levy’s and Dr. Breyer’s reports months after the expert discovery cut off and not pursuant to any Court order, Plaintiff has egregiously interfered with GGD and PCBP’s ability to prepare their defenses in this case. Plaintiff's use of Dr. Levy’s and Dr. Breyer’s reports constitutes deliberate misuse of the discovery process, which has given him an unfair advantage and prejudiced GGD and PCBP in this matter. Dr. Levy’s supplemental report must be withdrawn or excluded. VI. CONCLUSION For the reasons set forth above, Defendants GGD and PCB respectfully request that the| Court grant an Order Barring Testimony Or Evidence Of Dr. Donald Breyer At Trial, oy Alternatively For Order Shortening Time On Motion. Dated: October 6, 2015 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP Wilhan’M. Hake John E. Rosenthal B. Gardiner Mckleroy Marion V. Cruz Whitney C. Barmecut Attomeys for Defendants GOLDEN GATE DRYWALL PACIFIC COAST BUILDING PRODUCTS, INC. : By: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS GOLDEN GATE DRYWALL AND PACIFIC COAST BUILDING PRODUCTS, INC.’S EX PARTE APPLICATION FOR ORDER BARRING TESTIMONY OR EVIDENCE OF DR. DONALD BREYER AT TRIAL, OR ALTERNATIVELY FOR ORDER SHORTENING TIME ON MOTION 1453507v.1