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1 ROBERT H. ZIMMERMAN, BAR NO. 84345
SCHUERING ZIMMERMAN & DOYLE, LLP 12/8/2020
2 400 University Avenue
Sacramento, California 95825-6502
3 (916) 567-0400
FAX: 568-0400
4
5 Attorneys for Defendant ENLOE MEDICAL CENTER
6
7
8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE
9
10 PATSY NEWTON, individually; HAROLD ) NO. 20CV01091
NEWTON, individually; SUZANNE )
11 BOLDEN, individually, ) Assigned to Judge Tamara L. Mosbarger
) for All Purposes
12 )
) DEFENDANT'S OPPOSITION TO
13 Plaintiffs, ) PLAINTIFF'S MOTION IN LIMINE NO. 1
) RE USING LIVE AND VIDEO TESTIMONY
14 vs. )
) Date: February 4, 2021
15 ENLOE MEDICAL CENTER; and DOES 1 - ) Time: 1:30 p.m.
50, et al., ) Dept: 1
16 )
) Action Filed: May 29, 2020
17 Defendants. ) Trial Date: February 8, 2021
______________________________________ )
18
19 Defendant Enloe Medical Center., hereby opposes plaintiffs’ motion in limine on
20 the grounds that plaintiffs misinterpret the Code of Civil Procedure’s rules on videotaped
21 deposition testimony. Specifically, the plaintiffs must meet the Evidence Code’s
22 admissibility (probative v. prejudicial value, relevance, hearsay, etc.) requirements prior
23 to offering deposition testimony in front of the jury. This is specifically required under
24 Code of Civ. Proc. §2025.620.
25 //
26 //
27 //
28 //
01305250.WPD 1
DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 1 RE USING LIVE AND VIDEO
TESTIMONY
1 I.
2 ARGUMENT
3 A. Plaintiffs must Meet the Evidence Code’s Admissibility Requirements for Each
Portion of Depositions They Intend to Offer.
4
5 While it is true under Code of Civ. Proc. § 2025.620 a party may use any part or all of
6 a deposition at trial,the testimony offered must stillbe admissible under the rules of
7 evidence. It also true that the party the deposition testimony is offered against may not
8 object on the grounds that the witness is available at trial. However, the defendant may
9 object on other grounds such as: relevance, hearsay, foundation, etc. The defendant agrees
10 that the plaintiffs may offer video testimony, however, the plaintiffs still need to meet the
11 admissibility requirements under the Evidence Code. Therefore, the defendant requests
12 an Evidence Code section 402 hearing outside the presence of the jury to determine the
13 admissibility of the proffered video testimony prior to playing it in front of the jury.
14 B. The Plaintiffs Have Directly Contravened Code of Civil Procedure Section
2025.620 in Order to Introduce the Evidence of Defendants’ Former
15 Employees
16 Under 2025.620(b), deposition testimony of defendant’s current employees may
17 be used for any purpose; however, it does not include former employees. Plaintiffs have
18 cleverly named former employee witnesses as a non-retained experts in order to
19 circumvent this rule and use the former employee’s deposition testimony under
20 subsection (d). The overwhelming majority of these individuals are not physicians,
21 experts or treating healthcare providers, but are nurses or miscellaneous employees who
22 engaged in care of Ms. Newton. This is clearly against the scope and purpose of 2025.620.
23 Under Schreiber v. Estate of Kaiser (2000) 22 Cal. 4th 31, 34 the Court held that non-
24 retained experts are only experts if their opinion testimony is “related to a subject that is
25 sufficiently beyond common experience that the opinion of an expert would assist the
26 trier of fact…” as defined Under Evidence Code 801. Here, as explained above, these
27 former employees are nurses’ aides who cannot offer opinion testimony that would assist
28 the trier of fact.
01305250.WPD 2
DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 1 RE USING LIVE AND VIDEO
TESTIMONY
1 Therefore, defendant requests that the plaintiffs’ use of video testimony of former
2 employees be excluded or limited. In addition, prior to offering any deposition testimony
3 of former employees (or current employees or experts), the defendant requests an
4 Evidence Code 402 hearing outside of the presence of the jury.
5 C. The Plaintiffs Should Be Limited in the Amount of Non-retained Expert
Deposition Testimony They Present
6
7 With regard to offering experts’ deposition testimony even if the experts are
8 present, the plaintiffs still need to meet the admissibility requirements. In addition, it
9 seems redundant and waste of the Court’s time and resources for the plaintiffs to offer
10 video deposition testimony of witnesses and then place them on the stand in conjunction.
11 As such, the defendant requests that the Court exclude or limit the video testimony
12 offered by the plaintiffs as it will be undue waste of the Court’s time.
13 II.
14 CONCLUSION
15 In conclusion, the defendant respectfully requests that the Court exclude or limit
16 all video deposition testimony offered by the plaintiffs. In the alternative, the defendant
17 requests that the court conduct an Evidence Code 402 hearing prior to the introduction
18 of any deposition testimony. Lastly, the defendant requests that the Court conduct a 402
19 hearing for each former employee offered by the plaintiffs.
20 Dated: December 7, 2020
21 SCHUERING ZIMMERMAN & DOYLE, LLP
22
23 By /s/ Robert H. Zimmerman
ROBERT H. ZIMMERMAN
24 Attorneys for Defendant ENLOE MEDICAL
CENTER
25
26
27
28
01305250.WPD 3
DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 1 RE USING LIVE AND VIDEO
TESTIMONY
1 Proof of Service by Electronic Transmission - Civil
2 [Code of Civ. Proc. §§ 1010.6, 1011, 1013, 1013a, 2015.5; Cal. Rules of Court, rules
3 10.503, 2.100-2.119, 2.251]
4 I, Lynette F. Esquivel, declare:
5 At the time of service, I was over 18 years of age and not a party to this action. My
6 business address is: 400 University Avenue, Sacramento, California 95825.
7 On December 8, 2020, I served the following documents:
8 DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 1 RE USING
9 LIVE AND VIDEO TESTIMONY
10 By e-mail or electronic transmission: Based on a court order or an agreement of
11 the parties to accept service by e-mail or electronic transmission, I caused the documents
12 to be sent to the persons at the e-mail addresses listed below. I did not receive, within
13 a reasonable time after the transmission, any electronic message or other indication that
14 the transmission was unsuccessful.
15 Attorney Representing Phone/Fax/E-Mail
16 Sean R. Laird Plaintiffs PHONE: 916-441-1636
The Law Firm of Sean R. Laird FAX: 916-760-9002
17 805 16th Street EMAIL:
Sacramento, CA 95814 seanlairdlaw@gmail.com
18
19
I declare under penalty of perjury, under the laws of the State of California, that the
20
foregoing is true and correct, and that this declaration was executed on December 8,
21
2020, at Sacramento, California.
22
23
/s/ Lynette F. Esquivel
24 Lynette F. Esquivel
1579-12195
25
26
27
28
Preview
1 ROBERT H. ZIMMERMAN, BAR NO. 84345 SCHUERING ZIMMERMAN & DOYLE, LLP 12/8/2020 2 400 University Avenue Sacramento, California 95825-6502 3 (916) 567-0400 FAX: 568-0400 4 5 Attorneys for Defendant ENLOE MEDICAL CENTER 6 7 8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE 9 10 PATSY NEWTON, individually; HAROLD ) NO. 20CV01091 NEWTON, individually; SUZANNE ) 11 BOLDEN, individually, ) Assigned to Judge Tamara L. Mosbarger ) for All Purposes 12 ) ) DEFENDANT'S OPPOSITION TO 13 Plaintiffs, ) PLAINTIFF'S MOTION IN LIMINE NO. 1 ) RE USING LIVE AND VIDEO TESTIMONY 14 vs. ) ) Date: February 4, 2021 15 ENLOE MEDICAL CENTER; and DOES 1 - ) Time: 1:30 p.m. 50, et al., ) Dept: 1 16 ) ) Action Filed: May 29, 2020 17 Defendants. ) Trial Date: February 8, 2021 ______________________________________ ) 18 19 Defendant Enloe Medical Center., hereby opposes plaintiffs’ motion in limine on 20 the grounds that plaintiffs misinterpret the Code of Civil Procedure’s rules on videotaped 21 deposition testimony. Specifically, the plaintiffs must meet the Evidence Code’s 22 admissibility (probative v. prejudicial value, relevance, hearsay, etc.) requirements prior 23 to offering deposition testimony in front of the jury. This is specifically required under 24 Code of Civ. Proc. §2025.620. 25 // 26 // 27 // 28 // 01305250.WPD 1 DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 1 RE USING LIVE AND VIDEO TESTIMONY 1 I. 2 ARGUMENT 3 A. Plaintiffs must Meet the Evidence Code’s Admissibility Requirements for Each Portion of Depositions They Intend to Offer. 4 5 While it is true under Code of Civ. Proc. § 2025.620 a party may use any part or all of 6 a deposition at trial,the testimony offered must stillbe admissible under the rules of 7 evidence. It also true that the party the deposition testimony is offered against may not 8 object on the grounds that the witness is available at trial. However, the defendant may 9 object on other grounds such as: relevance, hearsay, foundation, etc. The defendant agrees 10 that the plaintiffs may offer video testimony, however, the plaintiffs still need to meet the 11 admissibility requirements under the Evidence Code. Therefore, the defendant requests 12 an Evidence Code section 402 hearing outside the presence of the jury to determine the 13 admissibility of the proffered video testimony prior to playing it in front of the jury. 14 B. The Plaintiffs Have Directly Contravened Code of Civil Procedure Section 2025.620 in Order to Introduce the Evidence of Defendants’ Former 15 Employees 16 Under 2025.620(b), deposition testimony of defendant’s current employees may 17 be used for any purpose; however, it does not include former employees. Plaintiffs have 18 cleverly named former employee witnesses as a non-retained experts in order to 19 circumvent this rule and use the former employee’s deposition testimony under 20 subsection (d). The overwhelming majority of these individuals are not physicians, 21 experts or treating healthcare providers, but are nurses or miscellaneous employees who 22 engaged in care of Ms. Newton. This is clearly against the scope and purpose of 2025.620. 23 Under Schreiber v. Estate of Kaiser (2000) 22 Cal. 4th 31, 34 the Court held that non- 24 retained experts are only experts if their opinion testimony is “related to a subject that is 25 sufficiently beyond common experience that the opinion of an expert would assist the 26 trier of fact…” as defined Under Evidence Code 801. Here, as explained above, these 27 former employees are nurses’ aides who cannot offer opinion testimony that would assist 28 the trier of fact. 01305250.WPD 2 DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 1 RE USING LIVE AND VIDEO TESTIMONY 1 Therefore, defendant requests that the plaintiffs’ use of video testimony of former 2 employees be excluded or limited. In addition, prior to offering any deposition testimony 3 of former employees (or current employees or experts), the defendant requests an 4 Evidence Code 402 hearing outside of the presence of the jury. 5 C. The Plaintiffs Should Be Limited in the Amount of Non-retained Expert Deposition Testimony They Present 6 7 With regard to offering experts’ deposition testimony even if the experts are 8 present, the plaintiffs still need to meet the admissibility requirements. In addition, it 9 seems redundant and waste of the Court’s time and resources for the plaintiffs to offer 10 video deposition testimony of witnesses and then place them on the stand in conjunction. 11 As such, the defendant requests that the Court exclude or limit the video testimony 12 offered by the plaintiffs as it will be undue waste of the Court’s time. 13 II. 14 CONCLUSION 15 In conclusion, the defendant respectfully requests that the Court exclude or limit 16 all video deposition testimony offered by the plaintiffs. In the alternative, the defendant 17 requests that the court conduct an Evidence Code 402 hearing prior to the introduction 18 of any deposition testimony. Lastly, the defendant requests that the Court conduct a 402 19 hearing for each former employee offered by the plaintiffs. 20 Dated: December 7, 2020 21 SCHUERING ZIMMERMAN & DOYLE, LLP 22 23 By /s/ Robert H. Zimmerman ROBERT H. ZIMMERMAN 24 Attorneys for Defendant ENLOE MEDICAL CENTER 25 26 27 28 01305250.WPD 3 DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 1 RE USING LIVE AND VIDEO TESTIMONY 1 Proof of Service by Electronic Transmission - Civil 2 [Code of Civ. Proc. §§ 1010.6, 1011, 1013, 1013a, 2015.5; Cal. Rules of Court, rules 3 10.503, 2.100-2.119, 2.251] 4 I, Lynette F. Esquivel, declare: 5 At the time of service, I was over 18 years of age and not a party to this action. My 6 business address is: 400 University Avenue, Sacramento, California 95825. 7 On December 8, 2020, I served the following documents: 8 DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 1 RE USING 9 LIVE AND VIDEO TESTIMONY 10 By e-mail or electronic transmission: Based on a court order or an agreement of 11 the parties to accept service by e-mail or electronic transmission, I caused the documents 12 to be sent to the persons at the e-mail addresses listed below. I did not receive, within 13 a reasonable time after the transmission, any electronic message or other indication that 14 the transmission was unsuccessful. 15 Attorney Representing Phone/Fax/E-Mail 16 Sean R. Laird Plaintiffs PHONE: 916-441-1636 The Law Firm of Sean R. Laird FAX: 916-760-9002 17 805 16th Street EMAIL: Sacramento, CA 95814 seanlairdlaw@gmail.com 18 19 I declare under penalty of perjury, under the laws of the State of California, that the 20 foregoing is true and correct, and that this declaration was executed on December 8, 21 2020, at Sacramento, California. 22 23 /s/ Lynette F. Esquivel 24 Lynette F. Esquivel 1579-12195 25 26 27 28