Trial_22019_opp_to_dmil_5

Opposition

Cal. Super. - 6th Dist.February 21, 2017

Sa n Fr an ci sc o, C A 94 12 9 Te le ph on e: (4 15 ) 39 8- 09 00 PH IL LI PS , E R L E W I N E , GI VE N & C A R L I N LL P 30 M e s a St re et , Su it e 20 1 — Th e Pr es id io 19 20 21 22 23 24 25 26 27 28 17CV306574 Santa Clara - Civil L.W ) } Electronically Filed Nicholas A. Carlin (SBN 112532) by Superior Court of CA, Michael D. Levinson (SBN 271556) C of S cl PHILLIPS, ERLEWINE, GIVEN & CARLIN LLP ounty of Santa Clara, 39 Mesa Street, Suite 201 — The Presidio on 2/15/2019 4:41 PM San Francisco, CA 94129 Reviewed By: L. Wang Tel: 415-398-0900 Case #17CV306574 Fax: 415-398-0911 Envelope: 2522011 Email: nac@phillaw.com mdl@phillaw.com Attorneys for Plaintiff SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA —- UNLIMITED DARRICK W. FIGG, Case No: 17CV306574 Plaintiff, PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE Vv. NO. 5 TO EXCLUDE ALL EVIDENCE OF POST-DEPOSITION WORK OF JASPREET SINGH MANN, et al., PLAINTIFFS’ EXPERT WITNESSES AND EXCLUDING EXPERT Defendants. TESTIMONY AS TO MATTERS NOT ADQUATELY DISCLOSED Trial Date: February 20, 2019 Time: 8:50 a.m. Dept: 22 Judge: Hon. Paul R. Bernal Complaint Filed: February 21, 2017 Defendants’ Motion in Limine No. 5 is an overly broad and compound attempt to box in Plaintiff’s experts at the time of trial. While Plaintiff agrees with the general principal truncated in Kennemur, there is no authority (and Defendants have cited none) precluding an expert from doing additional work after his or her deposition has been taken. Should any of Plaintiff’s experts do any additional work prior to trial, Plaintiff will provide Defendants an opportunity to depose any such expert before he or she testifies as trial. 1 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 5 Case No. 17CV306574 PH IL LI PS , E R L E W I N E , G I V E N & C A R L I N LL P 30 M e s a St re et , Su it e 20 1 — Th e Pr es id io Sa n Fr an ci sc o, C A 94 12 9 Te le ph on e: (4 15 ) 39 8- 09 00 20 21 22 23 24 25 26 27 28 As to Defendant’s assertion that Plaintiff may attempt to introduce expert testimony not revealed in Plaintiff's expert witness declaration and depositions, such a claim is speculative. Plaintiff disclosed the general areas that each of his retained experts will testify to at trial in his expert disclosure. Further, all of Plaintiff’s retained experts have been deposed, and Defendants had the opportunity to ask each of them about their opinions in this case. (Levinson Decl. [F 2.) Plaintiff's experts are expected to testify regarding opinions set forth in deposition, but at trial, they may still opine on questions that were neither asked nor answered at deposition. See Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal. App.4™ 64, 81. If Defendants take issue with any specific testimony they feel should be excluded, it should be addressed at trial. Plaintiff also objects as overly broad Defendants’ attempt to preclude his experts from testifying regarding any documents and photographs not produced at deposition. While each of Plaintiff's experts produced their file in this case prior to their deposition, some of Plaintiff’s experts may rely on demonstrative exhibits at trial or documents that were produced after their deposition. See, e.g., People v. Duenas (2012) 55 Cal.4th 1, 21. Defendants will have the opportunity to cross-examine each of Plaintiffs experts at trial, so this is a non-issue. Dated: February 15,2019 PHILLIPS, ERLEWINE, GIVEN & CARLIN LLP Nicholas A. Carlin Michael D. Levinson Attorneys for Plaintiff 2 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 5 Case No, 17CV306574 PH IL LI PS , ER LE WI NE , GI VE N & CA RL IN LL P 30 M e s a St re et , Su it e 20 1 — Th e Pr es id io Sa n Fr an ci sc o, C A 94 12 9 Te le ph on e: (4 15 ) 39 8- 09 00 10 11 12 13 20 - 21 22 23 24 25 26 27 28 DECLARATION OF MICHAEL D. LEVINSON I, Michael D. Levinson, declare as follows; 1. I am an attorney duly licensed to practice before the courts of the State of California and am attorney of record for Plaintiff Darrick W. Figg (“Plaintiff”) in this case. The following is based on my personal knowledge and if called as a witness, I could and would testify competently thereto. 2. Plaintiff disclosed the general areas that each of his retained experts will testify to at trial in his expert disclosure. Further, all of Plaintiff's retained experts have been deposed, and Defendants had the opportunity to ask each of them about their opinions in this case. I declare under penalty of perjury that the foregoing is true and correct. Executed at San Mos | Michael D. Levinson Francisco, California. Dated: February 15,2019 3 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 5 Case No. 17CV306574 Sa n Fr an ci sc o, C A 94 12 9 Te le ph on e: (4 15 ) 39 8- 09 00 PH IL LI PS , ER LE WI NE , GI VE N & CA RL IN LL P 39 Me sa St re et , Su it e 20 1 — Th e Pr es id io 13 14 15 16 17 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I, the undersigned, declare that I am over the age of eighteen and not a party to this action. My business address is Phillips Erlewine, Given & Carlin LLP, 39 Mesa Street, Suite 201, The Presidio, San Francisco, California 94129. On the date below, at my place of business at San Francisco, California, a copy of the following document(s): PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 5 TO EXCLUDE ALL EVIDENCE OF POST-DEPOSITION WORK OF PLAINTIFFS’ EXPERT WITNESSES AND EXCLUDING EXPERT TESTIMONY AS TO MATTERS NOT ADQUATELY DISCLOSED was placed in a sealed envelope addressed to: James E. Sell Attorneys for Defendants Jaspreet Singh Benjamin J. Angulo Mann, an individual, Cognizant Business Tyson and Mendes Services Corporation and Cognizant 523 4" Street, Suite 100 Technology Solutions U.S. Corporation San Rafael, CA 94901-3347 Telephone: 415-227-2323 Fax: 415-227-2360 Email: jsell@tysonmendes.com bangulo@tysonmendes.com [1] BY U.S. MAIL: I placed the above documents in a sealed envelope for deposit in the United States Postal Service, with first class postage fully prepaid, and that envelope was placed for collection and mailing on that date following ordinary business practices. [1] BY FACSIMILE TRANSMISSION: I transmitted the above documents by facsimile transmission to the FAX telephone number listed for each party above and obtained confirmation of complete transmittal thereof. [1 BY ELECTRONIC TRANSMISSION: I caused the above documents to be electronically transmitted to the parties listed above. [x] BY E-SERVICE: I caused the above documents to be e-served through One Legal to the parties listed above. [] BY CAUSING PERSONAL SERVICE: I placed the above documents in a sealed envelope. I caused such envelope(s) to be handed to our messenger service to be delivered by hand to the above address(es). [1] BY PERSONAL SERVICE: I placed the above documents in a sealed envelope. I delivered each of said envelopes by hand to the above address(es). [1] BY OVERNIGHT EXPRESS: I placed the above documents in a sealed envelope. I caused such envelope(s) to be delivered by Federal Express to the above address(es) by overnight express. 1 PROOF OF SERVICE - Case No. 17-CV-306574 PH IL LI PS , E R L E W I N E , G I V E N & C A R L I N LL P 39 Me sa St re et , Su it e 20 1 — Th e Pr es id io Sa n Fr an ci sc o, C A 94 12 9 Te le ph on e: (4 15 ) 39 8- 09 00 20 21 22 23 24 25 26 27 28 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on February 15, 2019, at San Francisco, California. Ke Rosemary A. Comisky Culiver 2 PROOF OF SERVICE - Case No, 17-CV-306574