Goffney stated he was, “not aware of any witnesses to decedent’s medical care other than those individuals identified in her medical records.” ( Saxena at p. Form Interrogatory 12.1 calls for the identification of individuals who witnessed the incident or events occurring immediately after the incident, including anyone who made or heard any statements about the incident. Saxena, was not a candidate for surgery.ĭuring formal discovery the defendant doctor, Goffney, was served with Judicial Council Form Interrogatory No. The defendant’s offer of proof at trial was that each of these witnesses would rebut plaintiff’s claim that the decedent, Mr. The trial judge excluded two defense witnesses, Gary Flashner, M.D., a treating doctor and Nurse James Palmer, neither of whom were specifically identified in discovery. Saxena involved a wrongful death claim against a doctor that arose out of a series of debridement procedures. Goffney (2008) 159 Cal.App.4th 316, discusses the scope of the holding in Thoren and clarifies when evidence not identified in discovery responses may be excluded at trial. The trial judge in Thoren held that the omission of Clubb’s name from the answer to the interrogatory was willful and barred Clubb’s testimony of observations at the accident scene. However, plaintiff himself revealed at his deposition that Clubb had taken pictures of the accident scene the day after the injury occurred. Plaintiff’s counsel conceded that Clubb sent him pictures of the scene and also referred the case to his office. Clubb took pictures of the scene and was prepared to testify to the condition of the area where the accident occurred. The trial court conducted a hearing and learned that Clubb was a union representative who went to the scene of the accident as soon as he heard about it. Clubb on the grounds that plaintiff had willfully omitted Clubb’s name from the answer to the interrogatory. The defendant objects to the testimony of Mr. Clubb, who arrived at the scene of the accident shortly after it occurred.” Now fast forward to plaintiff’s opening statement, on August 30, 1971: Plaintiff’s counsel refers to the expected testimony of “Robert B. Thoren answered without objection and identified one individual, Dick Moscrop. Thoren was served with an interrogatory that asked him to identify all witnesses who arrived at the scene of the accident immediately or shortly after it happened. He alleged that the subcontractors on the job negligently created a dangerous condition which caused his injury. Plaintiff Walter Thoren tripped and fell over a wire and injured his arm. Thoren was a construction site trip-and-fall case. The most cited case on this issue is Thoren v. Judges generally do not rule on this type of motion until they are presented with specific facts related to a specific piece of evidence. This motion is usually broadly stated to exclude all documents and evidence not produced in discovery. When trial arrives, admissibility issues can present themselves if the claims, documents and witnesses we plan to rely on have not been specifically identified in our formal discovery responses.Ī common motion in limine is the motion to exclude evidence not disclosed or produced during discovery. We are motivated to share evidence that supports our case, in an effort to get the case fully evaluated and hopefully settled. We all have a basic understanding of our obligations to disclose relevant evidence requested in discovery. It is only when a case is tried that we truly see the impact that our answers to discovery have on the case. At trial a party’s answers to both written and oral discovery are scrutinized. In our practices the vast majority of our cases settle prior to trial.
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