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Lee v. Kaiser Gypsum Company11/13/2002
defense. It left defendant bereft of a single expert to contradict plaintiff's expert on the decisive issue of whether it was defendant that manufactured the ceiling material. Except for the testimony of Dr. Longo, there was no evidence linking defendant to the case. (Cf. In re Marriage of Economou (1990) 224 Cal.App.3d 1466, 1476 [discovery sanction imposed did not bar party from contesting issue].) The preclusion sanction imposed was excessive in the sense that it put plaintiff in a far more advantageous position than it would have been if the deposition had proceeded as rescheduled. (See McGinty v. Superior Court, supra, 26 Cal.App.4th 204, 211; In re Marriage of Economou, supra, at p. 1475 [sanction imposed is improper if it "bestow an unwarranted `windfall' on the adversary."].)
This was not an industrial exposure case where well in advance of trial the defendant is aware of the plaintiff's theory. Defendant had to confront the prospect of going to trial less than three weeks after it learned that plaintiff would claim damages based on exposure to a church ceiling visited by plaintiff well over 30 years ago. The only evidence to connect defendant to the church ceiling was the testimony of Dr. Longo, testimony that only Dr. Chatfield could challenge. The trial court was made aware of that fact. Defendant had inadvertently omitted Dr. Chatfield's name from the pared-down list furnished to plaintiff's counsel a mere two days before plaintiff's counsel herself furnished the samples the defense sent to Dr. Chatfield. While it is true that Chatfield's deposition had to be rescheduled by one day, plaintiff did not, and could not under these circumstances, claim actual surprise regarding Dr. Chatfield. These failures did not warrant a virtual termination sanction. For all the reasons set out herein, this error cannot be deemed harmless. (Cal. Const., art. VI, § 13; Code Civ. Proc., § 475; People v. Watson (1956) 46 Cal.2d 818, 836.)
The judgment is reversed.
We concur:
Sepulveda, J.
Rivera, J.
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