2019 ADC President David S. Rosenbaum - Vol. 34, No. 1 / Spring 2019 - Demler Armstrong ...
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Vol. 34, No. 1 / Spring 2019
2019 ADC President
David S. RosenbaumSTAFF
CO-EDITORS-IN-CHIEF
Ellen C. Arabian-Lee
Jill J. Lifter
EDITORIAL / ART DIRECTION
John Berkowitz
CONTRIBUTORS
Melissa Blair Aliotti Michele Kirrane
Ellen C. Arabian-Lee Jeffrey E. Levine
James J. Arendt Jill J. Lifter Vol. 31, No. 3 / Fall 2016
Michael D. Belote Renée Welze Livingston
Michael J. Brady Sara A. Moore
Features
John P. Cotter Sean Moriarty Meet the President, David Rosenbaum_________________________ 5
Patrick L. Deedon David S. Rosenbaum
David Rosenbaum ascends to the ADCNCN Presidency.
Marie-Ann Ellis Marie Trimble Holvick
Karen Goodman Edward P. Tugade — John Cotter
Glenn M. Holley Wakako Uritani
Hyon M. Kientzy James V. Weixel
Don Willenburg We Need to Talk ... About Diversity____________________________ 7
The ADC's commitment to Diversify the Organization.
ADC HEADQUARTERS OFFICE
2520 Venture Oaks Way, Suite 150 — Hyon M. Kientzy
Sacramento, CA 95833
Phone: (916) 239-4060 / Fax: (916) 924-7323
E-mail: adcncn@camgmt.com
www.adcncn.org Court of Appeal Gets to the Hart of the Hearsay Rule___________10
Don't allow hearsay evidence to ruin your case!
ADC HEADQUARTERS STAFF
— Edward P. Tugade and James V. Weixel
EXECUTIVE DIRECTOR
Jennifer Blevins, CMP
jennifer@camgmt.com The Perks & Perils of Joint Defense Agreements_________________ 13
John Berkowitz Should defense counsel use these?
Publications Director / Graphic Design
john@camgmt.com — Karen Goodman
Michael Cochran
Webmaster / IT Manager
michael@camgmt.com Who Is the Gatekeeper to Arbitration?________________________ 15
Can an arbitrator decide threshold questions?
Kim Oreno
Membership / Education — Marie Trimble Holvick and Sara A. Moore
kim@camgmt.com
Stephanie Schoen
Special Projects Courtroom Technology: "Learn It, Know It, Live It"________________________16
stephanie@camgmt.com — Sean Moriarty
Tricia Schrum, CPA
Accountant / Controller Mediation Evidence Code Section 1129, and the Civil Defense Attorney___19
tricia@camgmt.com — Melissa Blair Aliotti
Departments
President’s Message – By David S. Rosenbaum________________________________ 2
California Defense Counsel (CDC) Report – By Michael D. Belote_______________ 3
Meet the New ADC Board Members___________________________________ 21
Around the ADC__________________________________________________________22
ADC Amicus Corner – By Don Willenburg_____________________________________24
Trials and Tribulations – Members’ Recent Trial Experiences, by Ellen C. Arabian-Lee__25
Substantive Law Section Reports_________________________________________28
New Members____________________________________________________________32
The price of subscription is included in the membership
dues. All other subscriptions are $100.00 per year. Defense Comment would be pleased to consider publishing articles from ADC members and friends.
The opinions and viewpoints expressed in the articles Please send all manuscripts and/or suggestions for article topics to:
of the Defense Comment Magazine do not necessarily Ellen C. Arabian-Lee, Arabian-Lee Law Corporation, 1731 East Roseville Parkway, Suite 150, Roseville, CA 95661.
represent the opinions of, or reflect the official position Phone: (916) 242-8662; Fax: (916) 797-7404; E-mail: ellen@arabian-leelaw.com, and
of, the Association of Defense Counsel of Northern Jill J. Lifter, Ryan & Lifter, 2000 Crow Canyon Place, Suite 400, San Ramon, CA 94583.
California and Nevada or the editors. Phone: (925) 884-2080; Fax: (925) 884-2090; E-mail: jlifter@rallaw.com.
Spring 2019 Defense Comment 1Court of Appeal
Gets to the Hart
of the Hearsay Rule
Edward P. Tugade and James V. Weixel
Demler, Armstrong & Rowland, LLP
laintiffs resort to a variety of was exposed because: (1) he checked in all inadmissible.6 That basic premise, the
techniques to support their claims the supplies received for Hart’s jobsites; (2) court held, meant the plaintiff could not
with the contents of documents or he saw the JM logo stamped on the pipes use a percipient witness’s testimony about
other printed material purportedly based that Hart used and worked with on the the content of shipping or purchasing
on personal knowledge, when it is clearly jobs; and (3) Keenan supplied all of the pipe documents to bolster his assertions that
hearsay. With this tactic, plaintiffs often the company used in the McKinleyville he was exposed to a particular defendant’s
try to bridge gaps in their causation theory area.2 The records themselves, however, product.7 The Court of Appeal thus
with hearsay evidence. At deposition, an were never offered into evidence at trial.3 reversed the judgment against Keenan.8
industrial laborer testifies that a particular Keenan identified an exemplar invoice
shipper delivered a hazardous material to as carrying the Keenan logo, featuring Hart also cuts off another tactic used
a jobsite because he often saw the shipper’s a prominent K, yet the company had no by the plaintiffs’ bar: using a purported
logo on trucks at the site. Plaintiffs may record of ever selling JM transite pipe to expert to fill in holes in the plaintiff’s
also put up an industry expert to state that Hart’s employer, nor to any purchaser that theory of product identification. The
a manufacturer was responsible for injuries used the pipe in McKinleyville.4 threshold element of a plaintiff’s toxic
caused by a shattered drill bit because tort case is the requirement of proving
purchasing records showed its drill bits Keenan moved in limine to exclude exposure to a particular defendant’s
were supplied to a plaintiff’s jobsite. Glamuzina’s testimony about Keenan’s hazardous product. Since plaintiffs
supposed shipments of JM transite pipe allege decades old exposures to products
The recent decision in Hart v. Keenan to Hart’s jobsites. Keenan argued that of long-defunct manufacturers, records
Properties, Inc.1 put a stop to admission of the testimony about the content of the of the provision of such products to the
this type of dubious “evidence.” In Hart, documents was hearsay because it was plaintiffs’ jobsites – as well as witnesses
the court ruled it was a violation of the based on out-of-court statements that were who can authenticate or explain them –
hearsay rule for a plaintiff, Frank Hart, to not in evidence. Hart argued Glamuzina are often long gone. Also, recent records
offer the testimony of his foreman, John had testified from his own personal may have been destroyed through disaster
Glamuzina, about the contents of invoices knowledge, rather than about the content or ordinary document retention policies.
and shipping documents to prove that a of the invoices, so his testimony was not These hurdles leave plaintiffs or their
particular supplier provided asbestos- hearsay. The trial court denied the motion. successors with no means of identifying
containing materials to his jobsites. a particular hazardous material as having
The Court of Appeal disagreed and held been at a worker’s jobsite, and thus causing
Glamuzina testified that he saw shipping that Glamuzina’s testimony about the that plaintiff to be exposed to harm.
records indicating Keenan had supplied content of the documents must be excluded.
Johns-Manville asbestos-containing The court observed that the content of the In an attempt to overcome these hurdles,
transite pipe to Hart’s jobsites in shipping documents “was an out-of-court plaintiffs resort to “expert” testimony
the McKinleyville area in the 1970s. statement used to show Keenan supplied to prove the offending product was at a
Glamuzina could not recall how the asbestos-containing pipes; the statement jobsite, based on personal recollection of
Keenan name appeared on the records, but was offered for the truth of that matter.”5 the working environment, the contractors,
did recall seeing “their K and stuff” on the Accordingly, “Glamuzina’s testimony materials, or suppliers present during the
records. He claimed that he knew Keenan about the identity of the supplier of the
had supplied the JM pipe to which Hart pipe was based on hearsay” and was thus Continued on page 11
10 Defense Comment Spring 2019Hearsay – continued from page 10
relevant timeframe. In asbestos litigation, change originated with People v. Sanchez,10 reliance on out-of-court statements.12
plaintiffs offer a recurring “expert” who in which the Supreme Court of California However, the Sanchez court held as a
typically testifies – or, more accurately, held that an expert could not testify to general principle that opinion testimony, to
argues – that he knew that a particular case-specific facts about which the expert the extent it is based on hearsay, is merely
product was in use somewhere on a jobsite has no independent knowledge in the guise a mechanism for the offering party to put
while a plaintiff worked there, because of identifying them as the basis of the such inadmissible matters before the jury.
he recalled seeing records or trucks or expert’s opinion. The court acknowledged This is because by offering those matters as
workers from particular suppliers while he that expert opinion testimony is often support for the soundness of the expert’s
was there and he knew that those suppliers elicited through the use of hypothetical conclusions, the jury is necessarily being
provided asbestos-containing products to questions, in which the expert witness asked to assume that those matters are
the shipyard. is asked to assume that certain facts are true. That, of course, is in direct conflict
true. That is permissible, however, only with the basic nature and purpose of the
Hart stands to put an end to, or at least where there exists independent competent hearsay rule. Therefore, the court held, an
some limits on, the admission of such evidence of those facts. If a hypothetical expert may not express an opinion that
dubious testimony. As Hart makes clear, is based on case-specific facts that exist is based on case-specific facts that are
testimony about the content of delivery only in hearsay form, however, the expert hearsay in nature.13
records, or about logos or writing on the cannot be asked to assume that those facts
sides of vehicles, is inadmissible hearsay. are true.11 The effect of Sanchez is thus to Since Hart did not involve expert testimony,
Expert witnesses have historically been prevent expert witnesses from testifying but merely the testimony of a percipient
given a wide berth to rely on hearsay as a to case specific facts which are hearsay witness, it did not discuss the limitations
basis for their opinions, as professionals unsupported by admissible evidence and set down in Sanchez. However, Hart did
often rely upon the knowledge of others offering opinion testimony based on such hold that evidence regarding the content
to reach their own conclusions.9 This hearsay. of shipping records, logos, or other printed
is the mechanism by which product material that is not in evidence, but which
identification testimony from purported Sanchez was a criminal matter, and thus is offered to prove that a certain company’s
experts has typically been proffered. the court concentrated heavily on the products were at a jobsite, is plainly
implications of the Confrontation Clause inadmissible hearsay. Such evidence was
Within the last few years, however, the in considering the bounds that should
courts have restricted such testimony. The be applied to expert opinions and their Continued on page 12
Spring 2019 Defense Comment 11Hearsay – continued from page 11
being offered in Hart to prove case-specific owners, and have seen countless instances constituted hearsay when offered to prove
facts – that being the identification of the in which a plaintiff avoided summary that the package contained that company’s
product).
product allegedly provided by a particular judgment by offering a declaration or
supplier at a plaintiff’s jobsite, and to which deposition testimony from a co-worker 7 The court took no issue with the trial
he was allegedly exposed. That proof, in or supervisor who gave vague indications court’s holding that Glamuzina’s testimony
about seeing a JM logo stamped on a piece
turn, is often sought to be established of having seen a logo or other printing on of concrete pipe was not barred by the
through the plaintiffs’ “expert” testimony jobsite records. Such evidence is often hearsay rule, as it was personal recollection
in asbestos and other litigation, in addition embellished with testimony – usually about what appeared on the product itself.
to percipient lay witness testimony. This solicited by plaintiffs’ counsel through However, that analysis clearly did not apply
to documents purportedly containing the
last aspect of plaintiffs’ cases in asbestos blatantly leading examination – as “I can’t
name of the product’s supplier, but which
and toxic tort litigation is where Sanchez remember specifically, but I know it was were not in evidence. (Hart, supra, 29 Cal.
comes into play, and should require the there,” or “I would assume so, because App.5th at p. 212.)
exclusion of such expert opinions. that’s how every job was.” Such testimony 8 Id. at p. 216.
is exactly what Hart now prohibits. Indeed,
9 See, e.g., People v. McDowell (2012) 54
Taken together, Hart and Sanchez should Hart makes clear that hearsay and other Cal.4th 395, 429.
operate to exclude not only percipient unfounded and inadmissible statements
10 People v. Sanchez (2016) 63 Cal.4th 665.
testimony about product identification will no longer be cognizable.
that is based on hearsay, but also expert 11 Sanchez, supra, 63 Cal.4th at pp. 676-677.
testimony that seeks to establish that 12 Id. at pp. 679-682.
a plaintiff was injured by a particular ENDNOTES 13 Id. at p. 684.
product. As such, defense counsel may 1 Hart v. Keenan Properties, Inc. (2018) 29
now add these cases to their arsenal to Cal.App.5th 203.
exclude hearsay product identification 2 Hart, supra, 29 Cal.App.5th at pp. 205-206. Edward P. Tugade, a partner
evidence, and establish a complete defense 3 Id., at p. 213.
in Demler, Armstrong &
to plaintiffs’ theory of causation. Rowland LLP’s San Francisco
4 Id., at p. 206.
office, represents corporations,
5 Id. at p. 212, citing Pacific Gas & Elec. Co. businesses, and partnerships
AUTHORS’ COMMENTS v. G.W. Thomas Drayage etc. Co. (1968) 69 in trials, arbitrations, hearings,
Cal.2d 33, 42 (holding that “invoices, bills,
Having arisen in asbestos litigation, Hart and receipts… are hearsay”). Edward P. and mediations in federal and
will see its effects felt most heavily in that Tugade state courts. His practice
6 Id. at p. 212, citing DiCola v. White Brothers
arena. Both authors of this article have Performance Products, Inc. (2008) 158 involves environmental, toxic tort, product,
decades of experience defending asbestos Cal.App.4th 666, 681 (package label and premises, and general liability claims,
manufacturers, suppliers, and premises instructions bearing a company name partnering with clients to understand their
company and culture in order to effectively
provide the best solutions for all of their legal
and business needs. He is a decorated combat
veteran of the U.S. Marine Corps, receiving
an honorable discharge after 10 active duty
years of military service.
James V. Weixel, also with
Demler’s San Francisco office,
defends the firm’s clients in
insurance bad faith and third-
party property and casualty
litigation, as well as asbestos
James V. personal injury and wrongful
Weixel death cases. He has
participated in a wide array of trial and
appellate litigation for corporate, public
entity and individual clients in California
and Ohio since 1990. He is the president of
the Irish American Bar Association of
Northern California and has fulfilled a
number of other leadership roles in other
professional and civic organizations in
California and the Bay Area.
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