Judge Laura A. Seigle, Case 19STCV15874 2022-12-05 Tentative Ruling

Judge: Laura A. Seigle, Case: 19STCV15874, Date: 2022-12-05 Tentative Ruling

Case Number: 19STCV15874 Hearing Date: December 5, 2022 Dept: 15

[TENTATIVE] ORDER RE MOTIONS IN LIMINE

Defendants filed a second round of motions in limine. These motions are improper because Defendants failed to file a declaration stating it discussed the motions with Plaintiffs as required by Local Rule 3.57(a).

Defendants’ MIL No. 21

Defendants move to exclude Dr. Arnold Brody because Plaintiffs failed to make him available for a deposition. Plaintiffs state the witness is available for a deposition if Defendants want it.

According to the correspondence, one of the defendants sent a letter stating they would depose Brody at least three business days before his trial testimony. Trial is not until December 12, 2022. Therefore, there is still time to take the deposition according to Defendants’ proposed schedule.

The parties should have been able to resolve this by having a phone call to set the deposition date. Indeed, Defendants failed to file a declaration stating discussed this motion in limine. The motion is denied.

Defendants’ MIL No. 22

Defendants move to exclude Plaintiffs’ claim for economic damages because Plaintiffs failed to make their experts available for depositions. Defendants attached a letter from Plaintiff’s counsel stating the experts would be available for depositions. Defendants then sent a letter asking for deposition dates. According to Defendants, Plaintiff never responded.

Defendants also seek to exclude any claim for economic damages because Plaintiffs did not produce discovery on economic damages. Pursuant to the July 8, 2022 CMO, a motion to exclude evidence not disclosed in discovery is deemed made and denied. Defendants did not show good cause to depart from this order.

Defendants failed to file a declaration stating they discussed this motion with Plaintiffs. The parties should have been able to schedule the depositions of the experts by simply having some phone calls. There is still time to take depositions. The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 23

Defendants seek to exclude evidence of William Wennerholm’s medical costs including from the expert Dr. Barry Horn because Horn testified that he did not review any billing records and because only the amount paid is admissible as evidence of medical expenses.

First, Defendants failed to file a declaration stating they discussed this motion with Plaintiffs. Pursuant to Local Rule 3.57(a), a motion in limine must include a declaration stating that the subject of the motion has been discussed with opposing counsel.

Second, the motion is vague. It is not apparent whether it is seeking to exclude all evidence of any claim for medical expenses, including future expenses. It is not clear whether Plaintiffs are seeking any past medical expenses.

The motion is denied without prejudice to objections at trial. If Horn seeks to testify beyond the opinions expressed in his report and deposition, Defendants should object at that time.

.Defendants’ MIL No. 24

Defendants move to exclude all discovery responses from W.R. Grace & Co. because they are hearsay and will consume an undue amount of time. Plaintiffs do not oppose the motion except as to deposition testimony. Objections to deposition testimony are handled through the process set forth in the July 8, 2022 CMO and August 2022 Amendment.

The motion is granted in part as to discovery responses and denied with respect to depositions.

Defendants’ MIL No. 25

Defendants move to exclude Donald Wennerholm’s testimony and Eric Wennerholm’s testimony about product identification as speculative. Defendants should have made this motion earlier when they filed their earlier motion in limine to exclude those two witnesses’ testimony. The court denied that motion, stating they can testify about what they observed. If at trial they are asked questions that call for speculation, Defendants should object at that time.

In the previous motion in limine, Defendants sought to exclude expert testimony based on Donald and Eric’s testimony. Here, Defendants again seek to exclude expert testimony based on their testimony. As the court previously stated, 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.

Also, Defendants failed to file a declaration stating they discussed this motion with Plaintiffs. Pursuant to Local Rule 3.57(a), a motion in limine must include a declaration stating that the subject of the motion has been discussed with opposing counsel.

The motion is denied subject to objections at trial.

Defendants’ MIL No. 26

Defendants move to exclude Plaintiff’s expert Marty Kanarek because he said at his deposition that he could not discuss any issues of asbestos exposure and causation. Plaintiffs state the expert was not retained or offered to testify about specific causation, and that he is only a general causation expert.

This is another example of a motion in limine that could have been resolved if the parties had had a phone discussion as required by Local Rule 3.57(a). Defendants failed to file a declaration stating they met and conferred as required by that local rule.

The motion is denied. If the expert attempts at trial to testify beyond the scope of his report and deposition testimony, Defendants should object at that time.

Defendants’ MIL No. 27

Defendants seek to exclude references to a stucco patent as irrelevant and more prejudicial than probative. According to Defendants, the patent is irrelevant because the patent was not held by any defendant and does not cover the stucco products used in this case. Plaintiffs state their expert used it for historical purposes and that Plaintiffs do not plan to use the patent as evidence that Defendants made stucco using asbestos.

Defendants failed to meet and confer on this motion in limine. A very brief historical reference to the patent is not unduly prejudicial. If Plaintiffs spend too much time discussing the patent at trial, Defendants can object at that time. The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 28

Defendants move to exclude testimony from experts John Templin and Barry Horn because they relied on Donald Wennerholm’s and Eric Wennerholm’s deposition testimony and hearsay.

The court has already denied motions to exclude Donald’s and Eric’s testimony. The witnesses testified at their depositions that they remember use of a Highland product. The court cannot predict how they will testify at trial. At trial, Defendants can object to questions that lack foundation or call for speculation, Defendants can cross-examine them to point out weaknesses in their testimony, and Defendant can argue to the jury that their testimony is unreliable and should be given no credibility. 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.

Defendants also argue that Barry Horn relied on hearsay and that experts are not allowed to rely on hearsay. That is incorrect. An expert is allowed to rely on hearsay. The expert is not allowed to tell the jury the specific contents of the hearsay unless the evidence is otherwise admissible or is general background information of the sort relied upon by experts in the field.

Finally, Defendants failed to have a conversation with Plaintiffs about this motion in lime as required by the local rules.

The motion is denied subject to objections at trial.

The moving party is to give notice