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Sub-Rosa (California)

PostPosted: Fri May 15, 2009 7:16 am
by bspettit
If films are obtained post-MSC and are therefore not disclosed in stips and issues and if they will be offered strictly for impeachment at trial - am I correct that no judge can exclude them for not disclosing prior to the moment of introduction under any sceneario, i.e. trial gets continued, etc. ? Thank you for your thoughts.

Re: Sub-Rosa (California)

PostPosted: Sat May 16, 2009 8:11 pm
by rosellavera
See Guinard v. WCAB (Hayes Transport) 1996 61 CCC 706, in that case the appeals board found that the sub-rosa film was admissible as rebuttal evidence when they were not available at the time of the MSC. The Appeals Board found that the film was properly admitted as rebuttal evidence when films were not available at the time of the MSC.

Also, the WCAB has previously stated , "it is reasonable to assume that workers who are exaggerating their disability may let their guard down after the MSC and perform activities inconsistent with their prior complaints. ." (Mills v. Republic Indemnity (1994) 22 CWCR 139)


Re: Sub-Rosa (California) (California)

PostPosted: Sun May 17, 2009 8:24 am

The cases go both ways, and yes, a judge CAN exclude them and depending on facts may be upheld on appeal. The following is from my Work Comp Index 7th ed., page 803 dealing with Sub-Rosa:

• MSC, sub-rosa obtained afterwards: Information as to applicant’s activities only
........ obtained after MSC, so per L.C. §5502(e)(3) {previously, (d)(3)} it was error to exclude
........ sub rosa at trial, U. P. S. (WHITE) 27 CWCR 311, 64 CCC 1369, Sup. Ct. denied
........ request to publish, 28 CWCR 41
; CWCLP §21:136

.... ▫ After MSC: No showing video could not have been obtained earlier, so it was barred,
........ Presbyterian Hosp. (BLAIR) 62 CCC 1316

.... ▫ After trial started and after 100% rating: New video not allowed where prior video
........ was unpersuasive & no showing why film could not have been taken before MSC, so
........ excluded per L.C. §5502(e)(3), Savemart (ONETO) 35 CWCR 10, 71 CCC 1727,
........ extra fees to AA, L.C. §5801; O’Brien §23.0

.... ▫ Merit, cases to be decided on: L.C. §5708; video tapes (sub-rosa) after MSC allowed,
........ removal ordered, CAPUTO 26 CWCR 48; CWCLP §21:23

.... ▫ Service of sub rosa 5 days before MSC, despite prior request: Sub rosa barred, as well
........ as medical reports based on it, Garden Grove (SHIELDS) 69 CCC 280

.... ▫ Service of sub-rosa video no later than MSC unless not available prior: CCR §10601

.... ▫ Video tape not disclosed until day of trial: Barred, Transworld Airlines
........ (LILOMAIAUA) 62 CCC 835


I omit "vs WCAB" to save space and capitalize the names of injured workers to make it easier to visually scan a section for the name of an EE. Case cites are all in bold which also aids when looking for a cite.

I use "...." to force an indent to get a "hanging paragraph" here

Re: Sub-Rosa (California)

PostPosted: Mon May 18, 2009 6:21 am
by bspettit
Thank you so much for your replies. They confirm rhe reason I enjoy practicing law in this area so much - even the seemingly simple issues are complicated by the confusing and contradictory ruiings which require that I roll the dice because I can't adequatly predict how the judge will rule nor can I properly predict the outcome on recon.