Judge: Laura A. Seigle, Case: 19STCV11970, Date: 2023-12-28 Tentative Ruling

Case Number: 19STCV11970    Hearing Date: January 16, 2024    Dept: 15

[TENTATIVE] ORDER RE MOTIONS IN LIMINE

Plaintiffs’ MIL No. 1

Plaintiffs seek to exclude evidence of insurance coverage and payments and other collateral source benefits.  Pursuant to the July 8, 2022 CMO, the motion is deemed made and granted.  Defendants did not show good cause to depart from the order.  Therefore the motion is granted, except as to evidence of insurance to establish the actual amount paid of any medical bill.

Plaintiffs’ MIL No. 2

            Plaintiffs move to exclude evidence that David Cargill had heart attacks and different cancer as irrelevant and confusing.  Defendants contend that their experts will opinion that Cargill’s other health conditions caused his death.  Defendants also argue that his medical condition is relevant to his life expectancy and damages.  The evidence could be relevant to life expectancy and damages.  Therefore, the motion is denied without prejudice to objections at trial.

Plaintiffs’ MIL No. 3

Plaintiffs moves to exclude evidence that their family has a history of cancer as irrelevant and speculative as to causation.  Plaintiffs argues that some unidentified defense expert may try to offer evidence of a family history of cancer to show another cause for Cargill’s illness.  Plaintiffs do not identify the expert or specific expert testimony to be excluded.  Therefore, this motion is too vague.  If Defendants start asking questions at trial about the family’s history of cancer, Plaintiffs should object at that time.

Further, pursuant to the July 8, 2022 CMO, motions to exclude speculative evidence are deemed made and denied. 

            The motion is denied without prejudice to objection at trial.

Plaintiffs’ MIL No. 4

Plaintiffs move to exclude evidence or argument that asbestos was necessary to defeat enemies or win a war.  This motion is vague and overbroad.  Evidence of military uses of asbestos may be relevant to knowledge and notice, and experts might rely on studies that reference military use.

The motion is denied without prejudice to objection at trial.

Plaintiffs’ MIL No. 5

Plaintiffs move to preclude comments made by Dr. Selikoff at a 1969 symposium about brake linings not being a hazard as hearsay.  If Defendants’ experts establish the comments were the type of material upon which experts in the field reasonably rely, the comments may be admissible.

            The motion is denied without prejudice to objections at trial.

Plaintiffs’ MIL No. 6

Plaintiffs seek to exclude any mention of genetics in connection with lung cancer because such references are speculative and there is no evidence Cargill has the BAP1 genetic mutation.  This motion is too vague.  Plaintiff does not identify any particular document or expert testimony to be excluded.  Further, Plaintiffs cite no evidence supporting the assertion that genetics have nothing to do with lung cancer.  Also, pursuant to the July 8, 2022 CMO, motions to exclude speculative evidence are deemed made and denied.

            The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 1

Defendant Union Carbide moves to exclude evidence of its relationship with Dow Chemical.  This motion is too vague.  If at trial Plaintiffs ask questions about Dow Chemical that are irrelevant, Defendant can object at that time.  The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 2

Union Carbide moves to exclude any reference to incidents where people died or were injured as a result of Union Carbide’s chemicals other than asbestos.  Incidents not involving asbestos are irrelevant, more prejudicial than probative, and would be unduly time consuming.

            The motion is granted.

Defendants’ Motion to Exclude Video and EPA Document

Defendant O’Reilly Auto Enterprises, LLC moves to exclude the Don’t Blow It video and any evidence referring to the video as hearsay, unscientific, and prejudicial.  The video may be admissible at trial via an expert if the expert establishes that it is general background information of the type relied upon by experts in the field.  The claim that the video is unscientific can be the subject of cross-examination and goes to the weight to be given the video.  Defendant contends the EPA updated its guidance in 2007 so the video is outdated.  That too can be the subject of cross-examination.

Defendant argues the video’s references to an article and wives and children lack foundation.  That section of the video is irrelevant because there is no claim in this case about injury to wives and children.  If Plaintiffs establish that the video is admissible, the portion of the video about the magazine article and wives and children are to be redacted.

Defendant seeks to exclude evidence of a 1986 document prepared by the EPA because it is hearsay.  The contents of the document may be admissible at trial via an expert if the expert establishes that it is general background information of the type relied upon by experts in the field.  That the document was based on unscientific sources can be the subject of cross-examination and goes to the weight to be given the document and whether an expert can establish it is the type of information relied upon by experts.

Defendants’ Motion to Bifurcate

Defendants move to bifurcate punitive damages.  The motion is granted.

            The motion is denied without prejudice to a contemporaneous objection at trial.

            The moving party is to give notice.