Defendants frequently use testimony from a corporate witness (“PMQ” in California, “PMK” in most other jurisdictions) to establish facts about corporate history. A recent California Court of Appeal decision puts that practice in peril. Ramirez v. Avon Products, Inc. ruled that testimony from a PMQ based on the PMQ’s investigation, while appropriate for discovery, is not admissible in evidence. Why? Because it is based on hearsay, not personal knowledge. Even though statements made by PMQ witnesses may bind the defendant as a “party admission,” the defendant cannot use a PMQ’s statements to establish facts without additional foundation.
Don Willenburg, Co-Chair of the Gordon & Rees Appellate Practice Group, published an article in the February 8, 2023 Daily Journal titled "Ramirez: responding to restrictions on the affirmative use of PMQ testimony." The article addresses several ways in which corporate defendants can, in light of Ramirez, attempt to prove long-ago events even without there being anybody alive to testify today who was around at the time.
Willenburg has been described as an "appellate luminary" by the journal California Litigation. He is the past chair of the Appellate Practice Section of the Bar Association of San Francisco. For the last decade-plus, he has chaired the amicus briefs committee of the Association of Defense Counsel of Northern California and Nevada, working to advance causes important to the defense community.
To read the full article, please click here.