Judge: Laura A. Seigle, Case: 19STCV19310, Date: 2023-07-21 Tentative Ruling
Case Number: 19STCV19310 Hearing Date: August 7, 2023 Dept: 15
[TENTATIVE] ORDER RE MOTIONS IN LIMINE
Plaintiff’s MIL No. 1
This
motion seeks to exclude improper statements during voir dire and improper
arguments including questions about Covid, cancer, and corporations, expressing
sympathy, mentioning background exposure, referencing the government’s use of
asbestos, and mentioning nature or God.
As an
initial matter, this is several motions combined into one.
(a) Questions about Covid, cancer and
corporations: The trial court determines
the scope of voir dire and will give the attorneys the rules for that trial
court. If any attorney asks
inappropriate questions during voir dire, the other side should object at that
time. A motion in limine is not the
proper place to define the questions that can and cannot be asked in voir
dire. Denied without prejudice to
objections at trial.
(b) Sympathy:
Plaintiff cites no law prohibiting a defense counsel from briefly expressing
sympathy for a plaintiff. That is a
common occurrence. The statements of
attorneys are not evidence, as the court will instruct the jury. Denied without prejudice to objections at
trial.
(c) Background exposure: An expert may be able to establish a
foundation for the existence and relevance of background asbestos. Also, pursuant to the July 8, 2022 CMO,
motions to exclude evidence as speculative are deemed made and denied. Plaintiffs did not show good cause to depart
from that order. Denied without
prejudice to objections at trial.
(d) Government’s use of asbestos: This is too vague. Scientific articles and studies relied upon
by experts could mention this use of asbestos, and an expert might be able to
establish a basis for relying on and describing such studies. Denied without prejudice to objections at
trial.
(e) God or Mother Nature: This motion is too vague. Scientific articles and studies relied upon
by experts could mention that asbestos is a naturally occurring mineral, and an
expert might be able to establish a basis for relying on and describing such
studies. Further, there may be evidence
that asbestos comes from mines, making it part of nature. The fact that it is naturally occurring is
not prejudicial. Denied without
prejudice to objections at trial.
Plaintiff’s MIL No. 2
Plaintiff
moves to exclude evidence of the contents of the complaint and references to
former defendants no longer involved in the case. 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 Plaintiff is asking 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.
Plaintiff’s MIL No. 3
Plaintiff
seeks to exclude evidence or argument against the substantial factor test. This motion is too vague. Plaintiff did not identify any specific
evidence or expert testimony to be exclude.
The jury instructions will tell the jury the proper test to apply. The motion is denied without prejudice to
objections at trial.
Defendants’ MIL No. 1
Honeywell seeks to
exclude references to 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.
Defendants 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. 2
No
motion was filed.
Defendants’ MIL No. 3
Honeywell
moves to exclude evidence relating to the Friction Materials Standards
Institute as unauthenticated, irrelevant, and hearsay. This motion is too vague as it fails to
identify any specific document or testimony to be excluded. The court cannot at this time determine
whether Plaintiffs will be able to authenticate yet-unspecified exhibits at
trial. Also, the court cannot predict
how the unspecified documents might be used at trial. If they are used for notice and knowledge,
they may not be offered for a hearsay purpose.
The
motion is denied without prejudice to objections at trial.
Defendants’ MIL No. 4
No
motion was filed.
Defendants’ MIL No. 5
Honeywell moves to
exclude all references to foreign bans on the importation of chrysotile
asbestos. Plaintiff 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 is granted.
Defendants’ MI No. 6
Honeywell moves to exclude
testimony and videos from William Longo and Richard Hatfield about work
simulations because the simulations are not similar to Virginia Barton’s
exposure. Defendant argues the
simulations took place in small sealed chambers, used improper testing methods
such as TEM analysis not recognized by OSHA, and will be confusing to the jury
because the conditions are so different.
Whether TEM is an appropriate method “goes to the weight and not the
admissibility of the opinions.” (Strobel
v. Johnson & Johnson (2021) 70 Cal.App.5th 796, 811-812.)
At
trial, Defendants can cross-examine the experts about the similarities and
differences of Barton’s exposure to a small, sealed chamber and argue the jury
should give the videos no weight because of the different conditions.
Defendants
filed a declaration attaching numerous rulings by other courts, including
federal courts and other state courts, excluding the evidence. The exclusion of expert evidence is governed
by different law in federal court and other states. Many of the exhibits are impossible to read
because they have been copied so many times.
The
motion is denied without prejudice to objections at trial.
Defendants’ No. 7
Honeywell moves to
exclude evidence of workers’ compensation claims. If notice of the dangers of asbestos or
asbestos in the products at issue is contested, some evidence of the claims may
be relevant and for a non-hearsay purpose.
However, the details of workers’ compensation actions would be unduly
prejudicial, time-consuming, and confusing to the jury. It is for the trial judge to determine how
much is too much. To the extent a party
seeks to introduce the amounts of any settlement, judgment, verdict, or award
in another litigation, the motion is deemed granted and made pursuant to the
July 8, 2022 CMO.
Defendants argue
Plaintiff cannot authenticate the documents.
The court cannot at this time determine whether Plaintiff will be able
to authenticate yet-unspecified exhibits at trial.
The
motion is granted in part and denied in part subject to objection at trial.
Defendants’ No. 8
The
Pep Boys moves 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 Plaintiff was exposed to asbestos.
The
motion is denied without prejudice to objection at trial.
Defendants’ No. 9
The Pep Boys moves to
exclude any evidence of trade associations as prejudicial and confusing. The motion regarding trade associations is
deemed made and denied pursuant to the July 8, 2022 CMO.
Therefore, the motion is
denied without prejudice to objections at trial.
Defendants’ No. 10
The Pep Boys moves to
exclude evidence that retail defendants had a duty to test or investigate
products from third party suppliers.
Pursuant to the July 8, 2022 CMO, this motion is deemed made and denied
so long as the case includes an operative negligence cause of action. Defendants did not show good cause to depart
from this order.
Therefore,
the motion is denied without prejudice to objections at trial.
Defendants’ No. 11
The
Pep Boys seek to exclude evidence of its financial condition unless and until
there is a punitive phase of the trial. Plaintiffs
argue that Defendant’s size and sophistication is relevant to liability and the
duty of care it had. The fact that Pep
Boys has locations around the country can be made without reference The Pep
Boys’ financial condition. The motion is
granted.
Defendants’ No. 12
Defendant The Pep Boys
moves to exclude evidence about its compliance with 1972 OSHA labeling
regulations because the regulations do not require any warning labels on their
products. To the extent this motion
seeks a ruling on Plaintiff’s failure to warn claims, it is an improper motion
for summary adjudication. Otherwise, the
motion is too vague.
The
motion is denied without prejudice to objections at trial.
Defendants’ No. 13
Western
Auto Supply moves to exclude photos of Virgina Barton and her husband as
irrelevant, unauthenticated, hearsay and prejudicial.
First,
a photograph of a person is not hearsay.
Second, whether the photographs can be authenticated will be determined at
trial. Likely, Plaintiff will be able to
testify the photographs depict Virginia Barton and her husband. Third, because Virginia Barton has died and
cannot testify, the photographs are relevant to provide some information about
her life. The fact that she had a husband
and was happy at times in her life is not prejudicial. If Plaintiff spends too much time showing
photographs to the jury, Defendant can object at that time.
The
motion is denied without prejudice to objections at trial.
Motion to Birfurcate
Defendants
move to bifurcate punitive damages. The
motion is granted.
The moving party is to give notice.