Judge Laura A. Seigle, Case 19STCV15874 2022-10-03 Tentative Ruling

Judge: Laura A. Seigle, Case: 19STCV15874, Date: 2022-10-03 Tentative Ruling

Case Number: 19STCV15874 Hearing Date: October 3, 2022 Dept: 15

[TENTATIVE] ORDER RE MOTIONS IN LIMINE

Many of the motions in limine are vague, not tailored to this case, and duplicative. Filing motions in limine that do not identify specific evidence to be excluded is a sure road to denial of the motions and a waste of party and judicial resources.

PLAINTIFFS’ MILS

Plaintiffs’ MIL No. 1

Plaintiffs move to exclude evidence and argument of an alternative causation defense because no evidence supports another cause of the mesothelioma. This is an improper motion for summary adjudication of a defense.

The motion is denied without prejudice to an objection at trial.

Plaintiffs’ MIL No. 2

Plaintiffs move to exclude evidence that any of the defendants’ businesses closed or products lost money as a result of discontinuing asbestos-related products. This motion is too vague. Plaintiffs do not identify any specific defendant who will make this argument or any specific product that was discontinued.

Defendant Kaiser Gypsum Company argues that a decision to stop making a product because the product was not profitable is relevant to show that the decision was not based on knowledge that the produce was harmful. In other words, the evidence is relevant to Kaiser’s lack of knowledge of the dangers of asbestos.

The motion is denied without prejudice to an objection at trial.

Plaintiffs’ MIL No. 3

Plaintiffs seek to exclude evidence that Plaintiffs have received settlements and benefits from other sources such as health insurance. Pursuant to the July 8, 2022 CMO, this motion is deemed made and granted. Defendants did not show good cause to depart from that order.

The motion is granted.

Plaintiffs’ MIL No. 4

Plaintiffs move to exclude evidence and argument based on two articles denoted Pierce 2008 and Pierce 2016, which Plaintiffs claim are speculative and not scientifically reliable. Plaintiffs did not identify any defense expert who relies on these articles and did not cite any deposition testimony of any defense expert about these articles. Therefore the motion is too vague.

If a defense expert relies on these articles, Plaintiffs can cross-examine the expert about the articles and argue the expert’s testimony should be given little weight because of the unreliability of the articles.

The motion is denied without prejudice to objection at trial.

Plaintiffs’ MIL No. 5

Plaintiffs seek to preclude corporate witnesses from testifying about matters about which they lack personal knowledge. Plaintiffs do not identify any particular witness or any specific topic about which that witness lacks personal knowledge. Therefore this motion is too vague.

The motion is denied without prejudice to objection at trial.

Plaintiffs’ MIL No. 6

Plaintiffs move to exclude expert testimony about the amount of exposure William Wennerholm had to asbestos. This motion is too vague. Plaintiffs do not identify any particular expert or any specific testimony to be excluded.

The motion is denied without prejudice to objection at trial.

Plaintiffs’ MIL No. 7

Plaintiffs move to exclude testimony of witnesses not disclosed during discovery and not offered for depositions. Pursuant to the July 8, 2022 CMO, this motion is deemed made and denied. Plaintiffs did not show good cause to depart from this order.

Therefore the motion is denied without prejudice to objection at trial.

Plaintiffs’ MIL No. 8

Plaintiffs seek to exclude speculative testimony from defense experts. Plaintiffs do not identify any specific expert or specific testimony to be excluded. Therefore this motion is too vague.

The motion is denied without prejudice to objection at trial.

Plaintiffs’ MIL No. 9

Plaintiffs move to exclude defense experts from relying on hearsay. Plaintiffs do not identify any specific expert or specific testimony to be excluded. Therefore this motion is too vague. Also, experts may rely on hearsay. 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 objection at trial.

Plaintiffs’ MIL No. 10

Plaintiffs move to exclude evidence of or reference to two 2013 orders precluding Plaintiff’s expert Barry Horn from testifying as irrelevant and prejudicial.

The 2013 orders are more prejudicial than probative and will consume an undue amount of time explaining the context of those orders. Therefore, the motion is granted. However, if Horn testifies that his opinions have never been excluded, testifies his opinions have always been accepted, or otherwise opens the door, the evidence may be admissible.

Plaintiffs’ MIL No. 11

Plaintiffs seek to exclude evidence that Plaintiff’s expert Barry Horn did not read the reports of other experts in this case. According to Plaintiffs, the other reports are irrelevant to Horn’s opinions.

This motion is too vague. Plaintiffs do not identify the other reports at issue and present no evidence that the other reports are irrelevant to Horn’s opinions. If Defendants ask Barry Horn about the other reports, Plaintiffs can have Horn explain that that the other reports are not relevant.

The motion is denied without prejudice to objection at trial.

Plaintiffs’ MIL No. 12

Plaintiffs move to exclude evidence that William Wennerholm’s family has a history of cancer on the ground that there is no such evidence. If there is no evidence of cancer in the family, then there is nothing to exclude.

Plaintiffs then argue that unidentified defense experts will offer evidence of a family history of cancer to show another cause for William Wennerholm’s mesothelioma. This argument suggests that there is some evidence of cancer in the family (contrary to Plaintiffs’ argument that not such evidence exists). But Plaintiffs fail to identify the defense expert or the specific testimony at issue. Therefore, this motion is too vague.

The motion is denied without prejudice to objection at trial.

Plaintiffs’ MIL No. 13

Plaintiffs seek to preclude evidence of William Wennerholm’s hypertension, toxic metabolic encephalopathy, hyperparathyroidism, obesity, and heart attack as irrelevant. Plaintiffs did not show that these medical conditions are irrelevant to life expectancy.

The motion is denied without prejudice to objection at trial.

Plaintiffs’ MIL No. 14

Plaintiffs move to exclude evidence that the Asbestos Workers Union had knowledge of the danger of asbestos because William Wennerholm was not a member of the union. The fact that he was not a member of the union does not mean that he did not see union publications or did not talk to members of the union about the danger of asbestos.

The motion is denied without prejudice to objection at trial.

Plaintiffs’ MIL No. 15

Plaintiffs seek to exclude all court orders regarding Plaintiff’s experts. Plaintiffs do not identify any particular expert or any particular court order. This motion is too vague. If it seeks to exclude exhibits consisting of orders from other courts, Plaintiffs should object at trial if another party seeks to admit such a document. If the motion seeks to preclude questions to the expert about whether other courts have limited or excluded the expert’s testimony in other cases, the court cannot determine before trial whether such a question is proper. For example, the questions could be proper for impeachment purposes if the expert testifies that no court has ever limited the expert’s testimony.

The motion is denied without prejudice to objections at trial.

Plaintiffs’ MIL No. 16

Plaintiffs move to exclude evidence about causation and the substantial factor test. Pursuant to the July 8, 2022 CMO, this motion is deemed made and denied. Plaintiffs did not show good cause to depart from that order.

The motion is denied without prejudice to objection at trial.

Plaintiffs’ MIL No. 17

Plaintiffs seek to exclude testimony from experts not disclosed during discovery and not made available for a deposition. Plaintiffs do not identify any particular expert at issue. Therefore, the motion is too vague. And it is duplicative of No. 7. Also, pursuant to the July 8, 2022 CMO, this motion is deemed made and denied. Plaintiffs did not show good cause to depart from that order.

The motion is denied without prejudice to objection at trial.

Plaintiffs’ MIL No. 18

Plaintiffs move to preclude defense counsel from arguing that Plaintiffs “chose to sue” the defendants. This motion is vague. The phrase “chose to sue” is not inherently prejudicial.

If Plaintiffs are seeking to exclude evidence that other alleged tortfeasors are bankrupt and not present at trial or evidence that other defendants were named in this case but are no longer in the case, then the motion is deemed made and granted pursuant to the July 8, 2022 CMO, but such order does not affect any allocation of fault under Proposition 51.

The motion is granted in part and denied in part.

Plaintiffs’ MIL No. 19

Plaintiffs move to exclude evidence that asbestos is the state rock as irrelevant and misleading. Serpentine is not at issue in the case. Testimony about the state rock will consume an undue amount of time and has very little probative value.

The motion is granted.

Plaintiffs’ MIL No. 20

Plaintiffs move to exclude defense experts from testifying about other causes of asbestos exposure. This motion is too vague. Plaintiffs do not identify any specific defense expert or any particular testimony.

The motion is denied without prejudice to objection at trial.

Plaintiffs’ MIL No. 21

Plaintiffs move to exclude defense experts from testifying that William Wennerholm was exposed to asbestos when he was in the Army. This motion is too vague. Plaintiffs do not identify any specific defense expert or any particular testimony.

The motion is denied without prejudice to objection at trial.

Plaintiffs’ MIL No. 22

Plaintiffs move to preclude improper cross-examination based on hypotheticals. This motion is too vague. Plaintiffs do not identify a single instance of an improper hypothetical.

The motion is denied without prejudice to objection at trial.

Plaintiffs’ MIL No. 23

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.

The motion is denied without prejudice to objection at trial.

Plaintiffs’ MIL No. 24

Plaintiffs seek to exclude evidence about when Plaintiffs retained legal counsel. Plaintiffs do not point to any basis for thinking Defendants will seek to introduce such evidence.

The motion is denied without prejudice to objection at trial.

Plaintiffs’ MIL No. 25

Plaintiffs move to exclude evidence from undesignated expert witnesses. This motion is too vague. Plaintiffs do not identify any defense expert who was not designated. Also, this motion is duplicative of No. 7 and No. 17. And pursuant to the July 8, 2022 CMO, this motion is deemed made and denied. Plaintiffs did not show good cause to depart from that order.

The motion is denied without prejudice to objection at trial.

Plaintiffs’ MIL No. 26

Plaintiffs move to exclude argument about the lack of an autopsy. Plaintiffs argue that under Walsh v. Caidin (1991) 232 Cal.App.3d 159, evidence of a lack of an autopsy is inadmissible. In that case, the defendants filed a cross-complaint for spoliation of evidence based on the plaintiff’s failure to have an autopsy conducted after her husband died. The court ruled that the surviving spouse had no legal duty to have an autopsy conducted. (Id. at p. 161.) Therefore, there was no grounds for alleging spoliation. (Id. at p. 164.) Thus the decision in Walsh makes clear spoliation does not occur when a spouse decides not to have an autopsy conducted. Therefore, the motion is granted to the extent it seeks to preclude argument that Plaintiffs engaged in spoliation of evidence.

However, Walsh does not stand for the proposition that evidence there was no autopsy must be excluded at trial. The lack of an autopsy may be relevant to an expert’s analysis or conclusions. Therefore, the motion is denied without prejudice to objection at trial to the extent it seeks to exclude the fact that there was no autopsy.

Plaintiffs’ MIL No. 27

Plaintiffs move to exclude evidence that William Wennerholm filed a conscientious objection during this military service. Defendants did not file an opposition. The parties therefore should have been able to agree to this.

The motion is granted.

Plaintiffs’ MIL No. 28

Plaintiffs seek to exclude speculative testimony from defense expert C. Alan Brown. Plaintiffs do not identify any specific testimony. Therefore, the motion is too vague.

The motion is denied without prejudice to objection at trial.

Plaintiffs’ MIL No. 29

Plaintiffs seek to exclude speculative testimony from defense expert David Godwin. Plaintiffs do not identify any specific testimony. Therefore, the motion is too vague.

The motion is denied without prejudice to objection at trial.

Plaintiffs’ MIL No. 30

Plaintiffs seek to exclude speculative testimony from defense expert Kathy Jones. Plaintiffs do not identify any specific testimony. Therefore, the motion is too vague.

The motion is denied without prejudice to objection at trial.

Plaintiffs’ MIL No. 31

Plaintiffs seek to exclude speculative testimony from defense expert Gail Stockman. Plaintiffs do not identify any specific testimony. Therefore, the motion is too vague.

The motion is denied without prejudice to objection at trial.

Plaintiffs’ MIL No. 32

Plaintiffs seek to exclude speculative testimony from defense expert Khalil Sheibani. Plaintiffs do not identify any specific testimony. Therefore, the motion is too vague.

The motion is denied without prejudice to objection at trial.

KAISER GYPSUM’S MILS

Defendant’s MIL No. 1

Defendant did not file this motion.

Defendant’s MIL No. 2

Defendant did not file this motion.

Defendant’s MIL No. 3

Defendant Kaiser Gypsum seeks to exclude testimony from Don Wennerholm and Eric Wennerholm about the level of dust present when William Wennerholm worked various jobs. Both Don and Eric Wennerholm testified about dust present when they were working jobs with William Wennerholm. Defendants argue this testimony is unreliable and prejudicial and they should not be allowed to testify about the dusty conditions at the worksites.

Don Wennerholm and Eric Wennerholm are not experts and can testify about what they personally observed. Defendant can then cross-examine them to point out weaknesses in their testimony, and Defendant can argue to the jury that their testimony is unreliable. If Plaintiffs’ experts rely on the testimony of Don Wennerholm and Eric Wennerholm, defense counsel can cross-examine the experts about the reliability of the testimony. Defendant can argue the jury should give the experts’ conclusions little weight based on the unreliability of the witnesses’ testimony.

The motion is denied subject to objections at trial.

Defendant’s MIL No. 4

Defendant did not file this motion.

Defendant’s MIL No. 5

Defendant did not file this motion.

Defendant’s MIL No. 6

Defendant did not file this motion.

Defendant’s MIL No. 7

Defendant moves to exclude deposition testimony of two witnesses. Objections to depositions are handled through the page/line designation process. See the July 8, 2022 CMO at pp. 14-18 and August 23, 2022 Amendment.

Defendant’s MIL No. 8

Kaiser moves to exclude all references to any regulatory bans regarding asbestos-containing products, including foreign bans on the importation on chrysotile asbestos.

Plaintiffs did not show that there is any evidence any defendant was aware of a foreign ban on chrysotile asbestos or the reasons why the foreign governments banned it. Allowing that evidence will consume an undue amount of trial time exploring the bases for and legislative history of the foreign bans. The evidence would have little probative value because foreign bans did not apply to workplaces in the United States and would be confusing to the jury.

The motion to exclude evidence about US federal and state regulations is too vague. The information in existence before the last date of alleged exposure is potentially relevant to show Defendant’s knowledge and notice.

The motion is granted as to foreign bans and otherwise denied without prejudice to a contemporaneous objection at trial.

Defendant’s MIL No. 9

Defendant moves to exclude evidence of post-sale conduct and continuing duty to warn. Pursuant to the July 8, 2022 CMO, this motion is deemed made and denied. Defendant did not show good cause to depart from this order.

Therefore, the motion is denied without prejudice to objections at trial.

Defendant’s MIL No. 10

Defendants seek to preclude Plaintiffs’ telling the jury the contents of documents relied upon by experts because the documents are hearsay, unreliable, and irrelevant. This motion is too vague. Defendants do 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.

Defendant’s MIL No. 11

Kaiser moves to exclude evidence of 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 long 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.

Defendant’s MIL No. 12

Kaiser seeks to exclude reference to Plaintiffs and the decedent 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.

Defendant’s MIL No. 13

Kaiser seeks to exclude evidence of an amicus brief and article by Laura S. Welch. Pursuant to the July 8, 2022 CMO, this motion is deemed made and granted as to the amicus brief but not the article. Plaintiffs did not show good cause to depart from that order.

Therefore, the motion is granted as to the amicus brief and denied as to the article without prejudice to a contemporaneous objection at trial.

Defendant’s MIL No. 14

Defendant seeks to exclude reference to non-present tortfeasors being in bankruptcy. Pursuant to the July 8, 2022 CMO, this motion is deemed made and granted. Plaintiffs did not show good cause to depart from the order.

Therefore, the motion is granted.

Defendant’s MIL No. 15

Defendant did not file this motion.

Defendant’s MIL No. 16

Kaiser seeks to preclude evidence imputing the knowledge of any trade organization of which Kaiser is not a member to Kaiser. Pursuant to the July 8, 2022 CMO, this motion is deemed made and denied. Defendant did not show good cause to depart from this order.

The motion is denied without prejudice to an objection at trial.

Defendant’s MIL No. 17

Defendant seeks to exclude evidence of the publication “Doubt is Their Product.” Pursuant to the July 8, 2022 CMO, this motion is deemed made and granted unless and until proper foundation is established with the trial court. Plaintiffs did not show good cause to depart from this order.

Therefore, the motion is granted unless and until proper foundation is established with the trial court.

Defendant’s MIL No. 18

Defendant moves to exclude references to a 1996 video relating to defense expert Brent Finley, PG&E, and Erin Brockovich. Defendant argues the 1996 video concerned chromium-6 and the Erin Brockovich case. That case and the 1996 video have nothing to do with asbestos and therefore are irrelevant. Allowing the evidence will consume an undue amount of time providing the context for the video and that other case.

The motion is granted.

Defendant’s MIL No. 19

Defendant moves to exclude testimony from Plaintiffs’ expert Gerald Markowitz because he will give speculative medical and scientific opinions. Defendant argues Markowitz is a historian and lacks the expertise to opinion on science and scientific articles. Plaintiffs state Markowitz is an expert in the field of public health.

If Markowitz purports to give scientific or medical opinions, Defendant should object at that time that Markowitz has no foundation or expertise for giving such opinions.

Plaintiffs state Markowitz will give “a review of the literature and the opinions and conclusions contained in that literature.” (Opposition at p. 2.) Unless the literature is otherwise admissible, Markowitz cannot tell the jury the conclusions contained in the literature, and Defendant should object at that time.

If Markowitz seeks to testify about the history of asbestos as a known danger, that topic falls within his education, career, and expertise in the history of public health. The history of asbestos as a health danger is not something within the common experience and knowledge of the jury, and an expert presenting a summary and explanation of that history will likely be helpful to the jury.

The motion is denied without prejudice to objections at trial.

Defendant’s MIL No. 20

Defendant moves to exclude deposition testimony of Eric Wennerholm and Donald Wennerholm regarding lists of products they made in preparation for their depositions. They testified that they could not remember the products without looking at the lists.

That the witnesses needed to refer to their lists to remember the products goes to the weight the jury may give their testimony.

The motion is denied without prejudice to objections at trial.

The moving party is to give notice