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  • JAMES RODAMER VS. A.W. CHESTERTON COMPANY et al ASBESTOS document preview
  • JAMES RODAMER VS. A.W. CHESTERTON COMPANY et al ASBESTOS document preview
  • JAMES RODAMER VS. A.W. CHESTERTON COMPANY et al ASBESTOS document preview
  • JAMES RODAMER VS. A.W. CHESTERTON COMPANY et al ASBESTOS document preview
  • JAMES RODAMER VS. A.W. CHESTERTON COMPANY et al ASBESTOS document preview
  • JAMES RODAMER VS. A.W. CHESTERTON COMPANY et al ASBESTOS document preview 
						
                                
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                                1 | MARK A, LOVE (SBN 162028)

JANICE W. MAN (SBN 209956) ELECTRONICALLY
2 | SELMAN BREITMAN LLP FILED

33 New Montgomery, Sixth Floor Superior Court of California,
3 San Francisco, CA 94105 County of San Francisco

Telephone: (415) 979-0400
41 Facsimile: (415) 979-2099 MAY 16 2007

GORDON PARK-LI, Clerk
BY: LUCIA RAMOS
Deputy Clerk

mleve@selmanbreitman.com
5 || jman@selmanbreitman.com
|
6 | Attormeys for Defendant

RAY L. HELLWIG PLUMBING
7

& SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION
Q
a [1 | JAMES RODAMER and NANCY RODAMER,| CASENO. 456569
4H
o 12 Plaintiffs, RAY L. HELLWIG PLUMBING'S
3s MOTION IN LIMINE TO EXCLUDE
& - = 13 V. WITNESSES OR DOCUMENTS NOT
we DISCLOSED PURSUANT TO COURT
o o 14 A.W, CHESTERTON COMPANY, et al., ORDER
Lu
Mr 15 Defendants.
a F | Date
mm 16 Time
€ I j Dept.
wo 17 Judge
Y i Trial Date : April 30, 2007
18
Complaint Filed : September 29, 2006
19
20 |
21 . -
Defendant RAY L. HELLWIG PLUMBING (“HELLWIG”) hereby moves the Court
22
to issuc an order in this action excluding documents or witnesses not previously disclosed
23
by plaintiffs. Alternatively, HELLWIG requests that the order granting the trial date be
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vacated should plaintiffs seek to introduce documents or witnesses not previously
25
disciosed.
26 .
INTRODUCTION
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130790.1 484.29184 RAY L, HELLWIG PLUMBING'S MO'LION IN LIMINE TO EXCLUDE WITNESSES OR DOCUMENTS

NOT DISCLOSED PURSUANT TO COURT ORDEReon

Selman Breitman Lip
ATTORNEYS AT LAW

28

su7v0.1 45823186

ARGUMENT
AS Exclusion of Evidence is Warranted Where Plaintiffs Have Failed to
Timely Disclose Names of Witnesses.

Evidence Code of California section 352 allows this Court the discretion to exclude

evidence where the probative value is outweighed by the probability that admission of
evidence would "(a) necessitate undue consumption of time" or "(b) create substantial
danger of undue prejudice, or confusing the issues, ot of misleading the jury."

In Thoren v. Johnston & Washer (1972), 29 Cal. App. 3d 270, the Court held that it
was within the sound discretion of the trial court to exclude evidence and witnesscs not
previously disclosed in discovery. Although the Thoren case addressed the issue of non-
disclosure of witnesses as requested in written interrogatories, the principle is equally
applicable pursuant to a court order to disclose such information as issued in the instant
matter. In Thoren, the court ruled that the trial court had properly precluded witnesses at
trial, other than the witnesses disclosed in answers to interrogatories. With respect to
witnesses not disclosed to the opposing party, the court stated:

Where the party served with written interrogatories asking the names of witnesses
to an occurrence then known to him deprives his adversary of that information by a
willfully false response, he subjects the adversary to unfair surprise at trial. He deprives
his adversary of the opportunity of preparation which could disclose whether the witness’
testimony is a sham, false or fraudulent.

The purpose of discovery is to promote the exchange of relevant information, to
simplify the issues in conflict, to shorten and facilitate trial, and to avoid surprise at trial.
See also Burke v. Fidelity and Deposit Company of Maryland (1969); Chronicle Pub. Co.
v. Superior Court, 54 Cal.2d 548, 561 (disclosure prevents unfair surprise and projudice at
trial by eliminating "the sporting theory of litigation- namely, surprise at trial.").

Subsequently, the court in Gordon v. Superior Court (1984) 161 Cal. App.3d 157,
166, set forth factors that warrant the exclusion of testimony of a witness who was not

identified in answers to interrogatorics. The factors include: 1) the answering party's

RAY L. HELLWIG PLUMBING'S MOTION IN LIMINE TO EXCLUDE WITNESSES OR DOCUMENTS.
NOT DISCLOSED PURSUANT IO COURT ORDER2
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ova) sexes

willful failure to reveal the witness’ names, 2) the answer impeded the other party's trial
preparations; 3) a continuance could not cure the defect; und 4) the answer did not go
merely to evidence for which impeachment would be a remedy.

The same factors apply when considering the exclusion of any witness not disclosed
by plaintiff pursuant to court order. Plaintiffs had sufficient time to conduct investigation
and discover information and/or witnesses who have knowledge of facts in support of their
claim that plaintiff James Rodamer was exposed to ashestos by HELLWIG.

At this time, plaintiffs have not disclosed any additional witnesses or documents
upon which they intend to tely al trial, and it is not anticipated that plaintiffs will do so.
However, in the cvent that plaintiffs attempt lo introduce "newly discovered" evidence,
such disclosure at this time is untimely and would clearly constitute unfair surprise and
prejudice to defendant HELLWIG at trial.

CONCLUSION

For each of the foregoing reasons, HELLWIG respectfully requests the Court to
exercise its discretion pursuant to California Code of Evidence Section 352 and exclude
from trial documents or witnesses not previously disclosed by plaintiffs.

Alternatively, HELLWIG requests that the order granting trial date be vacated
should plaintiffs seek to introduce documents or witnesses not previously disclosed
pursuant to Court order.

DATED: May Ie. 2007 SELMAN BREITMAN LP

By:

Attorne ia
RAY L. HELLWIG PLUMBING

RAY L. HELLWIG PLUMBING'S MOTION IN LIMINE 10 EXCLUDE WITNESSES OR DOCUMENTS
NOT DISCLOSED PURSUANT TO COURT ORDER