Document 5br6M7Y6oyaGjGLpdJMVw89y5

COPY CAUSE NO. 2000-05-1962-C ROBERT HENRY VILLARREAL, Individually and as Personal Representative of the Heirs and Estate of JOHN HENRY VILLARREAL FliFD L/ ("O OTlOfK ~H~ AURORA DE LA GARZA DIST. CLEF JAN 1 8 2001 DISTRICT 'UNTY, TD Plaintiffs, vs. GAF CORPORATION HOLDINGS, INC.), ET AL. Defendants. CAMERON COUNTY, TEXAS 197TM JUDICIAL DISTRICT MEMORANDUM OF LAW IN SUPPORT OF MOTION IN LIMINE OF DEFENDANT UNITED STATES GYPSUM COMPANY TO EXCLUDE ALL EVIDENCE OF PRIOR DISCOVERY ANSWERS IN OTHER CASES I. INTRODUCTION Defendant U.S. Gypsum Company ("U.S. Gypsum") respectfully submits this memorandum of law in support of its motion in limine to exclude all argument and evidence relating to prior discovery responses in other cases. Plaintiff may attempt to introduce discovery responses served by U.S. Gypsum more than a decade ago in prior, unrelated cases. Such prior answers should not be admitted. II. ARGUMENT Texas Rule of Civil Procedure 193.5 imposes on a party a duty to amend or supplement incomplete or incorrect discovery responses in the course of the litigation. The reason for the rule is that opposing parties have a right to the correct information sought through discovery. U.S. Gypsum has responded to discovery in this case. Recognizing the potential problems caused by allowing parties to use prior discovery responses as evidence against the responding party, three separate Texas Rules of Civil Procedure specifically preclude the admission of discovery responses that are later amended or supplemented: Rule 194.6 Certain Responses Not Admissible. A response to requests under Rule 194.2(c) and (d) that has been changed by an amended or supplemental response is not admissible and may not be usedfor impeachment. Rule 197.3 Use. Answers to interrogatories may be used only against the responding party. An answer to an interrogatory inquiring about matters described in Rule 194.2(c) and (d) that has been amended or supplemented is not admissible and may not be used for impeachment. Rule 198.3 Effect of Admissions; Withdrawal or Amendment. Any admission made by a party under this rule may be used solely in the pending action and not in any other proceeding. ... t Each of these rules preclude presentation to the jury of outdated discovery answers even in the same case in which those responses were given. Similarly, the new Texas rule governing disclosures by parties expressly precludes the admission of prior discovery responses regarding, inter alia, the factual bases for a defense. Tex. R. Civ. P. 194.2. The same policies which prevent a party's original discovery responses from being presented later in the same case militate even more strongly against permitting plaintiff from presenting to the jury discovery responses served by U.S. Gypsum a decade or more ago in unrelated cases from different jurisdictions. Plaintiff in this case has not in any way relied upon such responses, and can suffer absolutely no prejudice by having such documents precluded. U.S. Gypsum, on the other hand, is faced witlUthe prospect of extreme prejudice from the admission of discovery responses served in cases spanning nearly twenty years. U.S. Gypsum has been involved in asbestos litigation over that time in nearly every jurisdiction in the country. It has -9. F \CCR\Cameron\Villajreal. John\L'SG-Memo-Pnor Discover, doc responded to thousands of sets of discovery requests based upon the information available to it at a particular point in time and in the context of cases alleging a myriad of exposure scenarios, products and diseases. U.S. Gypsum has repeatedly updated both its document respository and the substance of its written discovery responses. Plaintiff should not be permitted to create the misimpression of inconsistency in U.S. Gypsum's discovery responses by cherry-picking individual snippets from among the thousands of outstanding sets of discovery responses. To do so punishes U.S. Gypsum for updating its responses, in the same way as allowing superseded discovery responses in the same case to be read to the jury. As one simple example, U.S. Gypsum has from time to time learned that some of its early discovery responses for the dates of manufacture of certain products were inaccurate, and that such t, products were actually made during shorter periods of time than were reflected in those responses. It would be grossly unfair to U.S. Gypsum if its earlier, inaccurate responses, once properly amended, could, decades later, be used as an admission that U.S. Gypsum made a certain product during a certain time period even though the truth (as reflected in more recent discovery responses) was that it did not. Even more egregiously, plaintiff may offer the prior discovery responses not to contend that the previous answers reflected the correct information, but to try to suggest that U.S. Gypsum is a "bad company" that should be presumed to be untruthful in denying, in this case, that the products at issue were, defective or that U.S. Gypsum acted negligently. The admission old discovery responses for this purpose threatens U.S. Gypsum with extreme prejudice. Moreover, such evidence would constitute improper "bad character" evidence. -3 F \CCR\CameronWillarreal. John\USG-Memo-Pnor Discover.,doc III. CONCLUSION For the foregoing reasons, defendant U.S. Gypsum respectfully requests that this Court enter an order excluding all argument and evidence relating to prior discovery answers in other cases. Respectfully submitted. POWERS & FROST, L.L.P. James H. Powers Texas State Bar No. 16217400 Sharia J. Frost Texas State Bar No. 07491100 Gwendolyn S. Frost Texas State Bar No. 07488750 2600 Two Houston Center 909 Fannin Houston, Texas 77010 Telephone: (713)767-1555 Facsimile: (713) 767-1799 ATTORNEYS FOR DEFENDANT UNITED STATES GYPSUM COMPANY CERTIFICATE OF SERVICE I hereby certify that a true and correct of Defendant United States Gypsum Company's Memorandum in Support of Motion in Limine has been forwarded to Plaintiffs' counsel of record either byVJ, fmirastt. cmlaaosso mmaanil,, r1eWtuUr1nII ri eceipt requested, delivery or facsimile on this the _________, 2001. day of -4 F \CCR\Cameron\Villarreal. John\USG-Memo-Pnor Discovery doc