Free Objections - District Court of Delaware - Delaware

Case 1:04-cv-OO583—Gtl\/IS Document 112-2 Filed O9/30/2005 Page 1 of 2
Westlaw -
1989WL5819 Pagel
l Not Reported in F.Supp., 1989 WL 5819 (D.N.J.)
(Cite as: 1989 WL 5819 (D.N.J.)) P
H several of the exhibits are documents which plaintiffs
l previously designated as exhibits which they
Motions pioniiings and Filings intended to rely upon at trial, and that the others are
either documents which can be judicially noticed or
Only the Westlaw citation is currently available. which have been authenticated by Dr- Mancu$e» a
witness on whose testimony plaintiffs will rely.
|FN1l Plaintiffs object to the use by Celotex of the
United gtntos Disttiot Court, D_ New ]otsoy_ 1983 de bene esse deposition of Dr. Mancuso and
AVcl1TiOLEONEN’ctal_’Pla1ntiffS, contend that, contrary to Celotex‘s assertions, they V
v_ will be unfairly prejudiced by the introduction of this
]QHNS-MANVI]_lLE CORPORATION, ct al., new evidence. First, plaintiffs assert that, prior to
Dotondsnts the taking of the 1983 deposition, plaintiffs counsel
CiV_ No_ 82-2684_ and defense counsel agreed to limit the scope of Dr.
Mancuso's testimony, which precluded plaintiffs
Jail 23, 1989_ counsel from making an adequate re-examination on
issues which had been covered on cross. |FN2[
0piNTgN While this may have been harmless in that litigation
because plaintiffs counsel had available to him the
CLARKSON S_ FIS]-[ER, Disttiot jntigo testimony of another expert who could testify on the
same issues, plaintiffs in the instant action lack
*1 This litigation stems from tho oxnostno ot adequate time to find and designate another witness
plaintiff Avelino Leonen to asbestos-containing te evre the Prejudice-
products during his service in the Navy and also
Whiio employed at tho New York Shipyard and tho Second, plaintiffs contend that the use, by Celotex,
phiintioiphin Nnvsi Shinytnd, and tho initnios hc of that portion of the 1983 testimony which indicates
suffered as aresult of that exposure. The action was that Dr- Manensa was Paid te Parttetlaate in that
hiirntontod into 2 nhssos, and s jury ttioi was deposition, for credibility purposes, will mislead the
commenced on the issues of defendants' liability and lutY· ln 1979, Dr- Mancuse designated a research
ooinponsstoiy dsnisgos_ At tho ooinniotion of tho organization with which he had no affiliation as the
first phase, judgment was entered for plaintiffs in the direct YectPtent af anY cetnPenSatten earned by him
amount of $25,000. This judgment was ratet far pa-rtieipatins in the depesitisn- Canseqnently,
amended to inoindo $]’5()0_00 in niodiosi the use of testimony from one deposition regarding P
Surveillance fccs and an owsid of prcjudgmcnt funds received for that deposition, to attack the
interest. A subsequent motion by the defendants for ctedthtutY et earlier teStunenY given bY the Same
a now tiini was denied by tho ootn-t_ witness for which no compensation was received, is
misleading and unfairly prejudicial. Thus, because
Now, on tho ovo of ttisi in tho pnnitivo damages of the lateness of defendant's application and the
phase er the litigation, defendant The ceietex danger that eertain designated partians ef this
Corporation (··ce1etex··) seeks to amend its final testirndny will aetually mislead the Jnry, plaintiffs
pretrial order to add certain portions of a 1983 de eentend that Pernntttng Celetex te intradnee this
bene esse donosition of Di_ Thomas Mnnonso taiton evidence will result in unfair prejudice to plaintiffs.
in In re: Asbestos Cases, in the United States District g
Court for the Southern District of Mississippi, and *2
numerous exhibits attached thereto. The final States; L
pretrial order in this case was filed on August 1,
1985. The trial on the issue of punitive damages is Pretrial Orders- After any eenferenee held pursuant »
scheduled to ootnnionoo on January 23, 1989, inst to this rule, an order shall be entered reciting the
tivo days away. action taken. This order shall control the subsequent
course of the action unless modified by a subsequent
Celotex argues that plaintiffs will not be prejudiced erder- The Order f0tt0Wlrl8 rt flrlrlt Pr err lal
by the late introduction of this new evidence because ennferenee shall he rnndvied enly rn prevent rnnnnest
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Case 1:04-cv-OO583—GI\/IS Document 112-2 Filed O9/30/2005 Page 2 of 2
1989WL5819 Page2
Not Reported in F.Supp., 1989 WL 5819 (D.N.J.)
(Cite as: 1989 WL 5819 (D.N.J.))
injustice. Corporation ("Celotex") to amend the final pretrial
order, filed on August 1, 1985, to include certain
7 (Emphasis added.) The goal of pretrial procedures, designated portions of a 1983 de bene esse deposition
such as this, has been to "provide the district courts taken of Dr. Thomas Mancuso; and the corut having
. with a useful tool to harness unwieldy litigation by considered the submissions of the parties and the
I simplifying the dispute and narrowing the issues for arguments of counsel; and for good cause shown,
trial," especially when the courts are faced with
complex civil litigation. Phoenix Canada Oil Co. v. *3 IT IS on this 23rd day of January, 1989,
Texaco, Inc., 842 F.2d 1466, 1476 (3d Cir. Q, cert.
denied, --- U.S. ---— , 109 S.Ct. 259 (1988). Final ORDERED that the motion of defendant Celotex to
pretrial orders are particularly important because they amend the final pretrial order be and hereby is
help ensure the just and speedy disposition of cases. denied.
See United States v. First Natl Bank of Circle, 652 V
F.2d 882, 886 (9th Cir.1981). EN__L In the final pretrial order, plaintiffs
designated portions of a 1979 de bene esse
Whether to permit the amendment of a final pretrial deposition taken of Dr. Mancuso as
order is entirely within the discretionary power of the testimony on which they intend to rely at
trial court. Joy Mfg. Co. v. Sola Basic Indus., Inc., trial.
697 F.2d 104, 109 (3d Cir.1982). The corut notes,
however, that "once formulated, pretrial orders E, The testimony in question concerns
should not be changed lightly." See Advisory Dr. Mancuso's interpretation of the threshold
Committee Note to Fed.R.Civ.P. 16te). In the case limit values for asbestos use in the states of
of final pretrial orders, the standard is even more Oregon and Ohio, and those promulgated by
stringent, and final pretrial orders are binding on the the American Conference of Govermnental
parties in the absence of a showing of manifest and Industrial Hygienists.
injustice. Petree v. Victor Fluid Power, Inc., 831
F.2d 1191, 1194 (3d Cir.1987); Ely v. Reading Co., @ Once it appears that manifest injustice
424 F.2d 758, 763 (3d Cir.1970[. Thus, the will result to the moving party, the court is
threshold issue is always whether manifest injustice then required to consider the following
to the moving party will result if the requested criteria in deciding whether to allow for
amendment is not allowed. Petree, supra. amendment of a final pretrial order: (1) the
prejudice or surprise in fact to the
Celotex argues only that plaintiffs will suffer no nonmoving party; (2) the ability of that
prejudice if the proposed amendment is permitted; party to cure the prejudice; (3) the extent to
however, it is well settled that the court need not which waiver of the rule would disrupt the .
evaluate the potential prejudice to the nomnoving orderly and efficient trial of the case, and (4)
party unless it is clear that the moving party will bad faith or willfulness on the part of the
suffer manifest injustice if the request to amend is movant. See Joy Mg. Co. v. Sola Basic
denied. FN3l Petree v. Victor Fluid Power, Inc., Indus., Inc., 697 F.2d at 109.
831 F.2d at 1194. Moreover, the burden of showing
that manifest injustice would result "falls squarely on Not Reported in F.Supp., 1989 WL 5819 (D.N.J.)
the moving party." R.L. Clark Drilling Contractors,
Inc. v. Schramm, Inc., 835 F.2d 1306, 1308 (10th Motions, Pleadings and FilingsgBack t0 top;
Cir.1987j. Since Celotex has failed to meet this
burden, its motion to amend the pretrial order to • 3:82cv02684 (Docket)
include the 1983 de bene esse deposition of Dr. (Aug. 16,1982) r
Mancuso is denied. An order accompanies this ,
opinion. No costs. END OF DOCUMENT
January 23, 1988. A
ORDER
This matter having been opened to the court on
motion of McCarter & English, David Speziali
appearing, on behalf of defendant The Celotex
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Case 1:04-cv-00583-GMS

Document 112-2

Filed 09/30/2005

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Case 1:04-cv-00583-GMS

Document 112-2

Filed 09/30/2005

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