Judge: Laura A. Seigle, Case: 18STCV05853, Date: 2023-05-15 Tentative Ruling
Case Number: 18STCV05853 Hearing Date: May 15, 2023 Dept: 15
[TENTATIVE] ORDER RE MOTIONS IN LIMINE
Plaintiffs’ MIL No. 1
Plaintiffs move to
exclude evidence of expert James Dahlgren’s religious practices and beliefs,
his prior association with BWell Clinic, and prior court orders about him as
irrelevant and unduly prejudicial.
The
expert’s religious practices and beliefs are irrelevant to this case and unduly
prejudicial. If the expert testifies
about providing the medical treatments based on the writings of L. Ron Hubbard,
then he may be cross-examined about the basis for those medical
treatments. Likewise, the expert’s past
association with BWell Clinic, which does not appear to have treated for
asbestos exposure, is not relevant to the expert’s opinions in this case and
will cause an undue amount trial time and jury confusion. The article about the expert is hearsay.
Plaintiffs
attach the following court decisions regarding the expert’s prior opinions: (1) a 2010 case from a federal court applying
Ohio law and Daubert about air emissions from a refinery; (2) a 2011
Sixth Circuit case applying Daubert concerning opinions on exposure to
benzene, (3) a 2005 case from a federal court in Louisiana applying Louisiana
law and Daubert about exposure to a glycol, (4) a 2009 federal case from
Mississippi about pancreatic cancer caused by a chemical agent applying Daubert,
(5) a 2007 case from Texas about exposure to creosote applying Texas law, (6) a
2003 federal case from Hawaii about chemical fumigants applying Daubert,
(7) a 2008 decision from Los Angeles Superior Court about toxic mold, mildew
and fungus, (8) a 2007 decision from New Mexico state court about chemical
exposure causing lupus, and (9) a 2007 hearing transcript from a New Mexico
state court hearing about some kind of chemical exposure. Only one case applied California law. No case involved asbestos. Therefore, these cases involved different law
and different facts. Allowing
examination about these decisions will require significant trial time and
confuse the jury, as the parties will spend substantial time explaining the
underlying facts of those cases and the expert’s analysis in those cases to try
to establish that the situations in these cases were similar or distinct from
the situation here.
The
motion is granted.
Plaintiffs’ MIL No. 2
Plaintiffs
move to exclude evidence of the contents of the complaint, reference to former
defendants no longer involved in the case, and references to claims against
former defendants. This motion is too
vague and overbroad.
First, the parties must
refer to the contents of the complaint in order to litigate this case. The entire point of a trial is for the
plaintiff to prove the allegations asserted in the complaint. If Plaintiffs mean to ask to modify caption
pages so that the captions only refer to the defendants remaining in the case
for trial, that motion is deemed made and granted pursuant to the July 8, 2022
CMO. Defendants did not show good cause
to depart from that order.
Also, scientific articles
or other documents may mention former defendants no longer involved in this
case, and reference to former defendants may be permissible for purposes of
allocation of fault.
The
motion is denied in part without prejudice to objections at trial. The motion is granted in part to allow for
the modification of caption pages to refer only to defendants remaining the
case but not so as to affect any allocation of fault under Proposition 51.
Defendants’ MIL No. 1
Defendants Carlton Forge
Works and Shultz Steel Company move to exclude reference to Plaintiffs as
victims, contending the use of the term is more prejudicial than
probative. Plaintiffs do not identify
any need to use the terms “victim” or “victims.” The use of the term “victim” suggestions
someone at fault for harming the victim.
Thus, while the prejudice might not be great, the relevance is negligible.
The motion is granted.
Defendants’ MIL No. 2
Defendants
Carlton Forge Works and Shultz Steel Company move to exclude references to a
position statement from the Joint Policy Committee of the Societies of
Epidemiology published on July 24, 2012 as hearsay, irrelevant and more
prejudicial than probative.
This
statement is hearsay and not subject to an exception. It was published after the alleged exposure
occurred and therefore is not evidence of any defendants’ knowledge or notice
at the time of the exposure. The
document was prepared by a body established “to coordinate and unify joint
policy actions globally,” and the document itself states it is a call for
political action against asbestos rather than an unbiased scientific
document. Explaining the origins and
development of the document would consume an undue amount of time and confuse
the jury.
Therefore,
the motion is granted.
Defendants’ MIL No. 3
Defendants Carlton Forge
Works and Shultz Steel Company move to exclude evidence about dust levels based
on witnesses’ visual observations. A
witness has personal knowledge of what the witness observed firsthand. Evidence that Plaintiffs or witnesses
observed dust may be relevant to the existence of asbestos fibers in the air
and how the decedent was exposed to asbestos.
The
motion is denied without prejudice to objection at trial.
Defendants’ MIL No. 4
Defendants
Carlton Forge Works and Shultz Steel Company move to preclude Plaintiffs’
telling the jury the contents of documents relied upon by experts because the
documents are hearsay, unreliable, unauthenticated and irrelevant. This motion is too vague. Defendant did not identify any specific
evidence to be excluded. Also, some of
the documents upon which the experts rely may be otherwise admissible. And if an expert establishes the hearsay is
general background information of the type relied upon by experts in the field,
the hearsay may be admissible. (People
v. Veamatahau (2020) 9 Cal.5th 16, 22.)
The
motion is denied without prejudice to objections at trial.
Defendants’ MIL No. 5
Defendants Carlton Forge
Works and Shultz Steel Company move to exclude evidence of a 1989 proposed EPA
ban that never went into effect because it was invalidated by the Fifth Circuit
Court of Appeals as not supported by sufficient evidence. This evidence may go to notice or knowledge. Defendant can cross-examine the witness about
the fact that the proposed ban was never effective and was invalidated by the
court for lack of evidence. That
cross-examination can be done efficiently, which just a few questions and does
not need to consume an undue amount of time.
The motion is denied
without prejudice to a contemporaneous objection at trial.
Defendants’ MIL No. 6
Defendants
Carlton Forge Works and Shultz Steel Company move to exclude all references to
regulatory bans regarding asbestos.
Plaintiffs did not show that there is any evidence any defendant was
aware of the foreign bans or why the foreign governments issued the bans. Allowing that evidence will consume an undue
amount of trial time exploring the bases for the foreign bans. The evidence would have little probative
value because it did not apply to workplaces in the United States.
The
motion to exclude evidence about domestic governmental actions is too
vague. The information in existence
before the last date of alleged exposure is potentially relevant to show
Defendants’ knowledge and notice.
The
motion is granted as to the foreign bans and otherwise denied without prejudice
to a contemporaneous objection at trial.
Defendants’ MIL No. 7
Defendants Carlton Forge
Works and Shultz Steel Company seek to exclude arguments that there is no safe
level of asbestos and every exposure contributes to a risk of cancer as
unsupported by science, not the product of scientific principles, and not a
matter of medical consensus. This motion
is too vague.
In addition, the motion
would exclude arguments about the standard for proving causation and what
“substantial factor” means. Under the
July 8, 2022 CMO, motions to exclude expert opinion about the term “substantial
factor” are deemed made and denied without prejudice to objections at
trial. Defendant did not show good cause
to depart from this order.
The motion is denied
without prejudice to objections at trial.
Defendants’ MIL No. 8
Apparently
Defendants served a motion to exclude videos of simulations because Plaintiffs
filed an opposition to such a motion.
However Defendant never filed the motion. Therefore, there is nothing for the court to
rule on.
The
moving party is to give notice.