Judge: Laura A. Seigle, Case: 19STCV26549, Date: 2023-08-17 Tentative Ruling

Case Number: 19STCV26549    Hearing Date: October 16, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTIONS IN LIMINE

Plaintiffs’ MIL No. 1

This motion seeks to preclude mention of any products eliminated by summary judgment orders.  This motion is too vague.  It does not identify any particular orders or products.  Also, one defendant can successfully move for summary judgment of the claims against it for a particular product, and a different defendant can remain in the case regarding claims against that second defendant for the same product.  Thus, the grant of summary judgment as to one defendant does not necessarily mean that a particular product is out of the case.  The motion is denied.

Plaintiffs’ MIL No. 2

Plaintiffs move to exclude evidence that other defendants were sued but are not at trial and the contents of the complaint because the complaint is not a judicial admission.

Pursuant to the July 8, 2022 CMO, a motion to modify the caption to refer only to defendants remaining in the case is deemed made and granted but not to affect any allocation of fault under Proposition 51.  To the extent the motion seeks to exclude any evidence of other defendants not at trial, the motion is denied as too vague.  For example, a deposition testimony of a witness of another defendant may be admissible, or evidence may be relevant for Proposition 51 purposes.

“ ‘The admission of fact in a pleading is a “judicial admission.” ’  [Citation.]  A judicial admission in a pleading is not merely evidence of a fact; it is a conclusive concession of the truth of the matter.  [Citation.]  ‘Well pleaded allegations in the complaint are binding on the plaintiff at trial.’  [Citation.]  ‘The trial court may not ignore a judicial admission in a pleading , but must conclusively deem it true as against the pleader.’  [Citation.]”  (Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 187.)  Based on this caselaw, the complaint may contain judicial admissions of fact.  The court therefore cannot conclude at this time that the entire complaint and its exhibits are inadmissible.

            The motion is granted in part and denied in part without prejudice to objections at trial.

Plaintiffs’ MIL No. 3

Plaintiffs move to exclude evidence of complaints filed in bankruptcy cases and an order from the Garlock bankruptcy case.  Evidence and arguments about what happened in bankruptcy cases have little probative value, will be prejudicial and will consume an undue amount of trial time to explain the context and proceedings of those cases. 

            The motion is granted.

Plaintiffs’ MIL No. 4

            Plaintiffs move to exclude arguments that chrysotile does not cause mesothelioma as baseless.  Plaintiffs cite no specific evidence to support this argument and do not identify any specific evidence to exclude.  The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 1-29

            No motions were filed.

Defendants’ MIL No. 30

            Defendants Nissan North America, Inc. and Nissan Motor Co., Ltd seek to exclude a December 2020 publication by the EPA entitled “Risk Evaluation for Asbestos Part I: Chrysotile Asbestos” as hearsay, irrelevant and prejudicial.  An expert may rely on hearsay and tell the jury in general terms that he or she did so.  If an expert testifying in this case establishes that this publication is the type of background information relied upon by experts in the field, the evidence may be relevant and admissible even if hearsay.  Defendants can cross-examine any expert who relies on this publication about the trustworthiness of the document.  The court cannot determine at this point that the publication is irrelevant or prejudicial.

The motion is denied without prejudice to objections at trial.

Defendants’ MIL Nos. 1-34

            No motions were filed.

Defendants’ MIL No. 35

Defendants Nissan North America, Inc. and Nissan Motor Co., Ltd move to exclude arguments that there is no safe level of asbestos and every exposure contributes to a cumulative dose as unsupported by science and contrary to the law.  This motion is too vague as Defendants does not identify any specific expert testimony to be excluded.   

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.  Defendants did not show good cause to depart from this order.

Defendants also argue OSHA and EPA reports are hearsay.  This motion is too vague as Defendants did not identify any specific report to be excluded.  If Plaintiffs ask to admit the reports for the truth of the matter asserted in them, Defendants can object at that time.  However, an expert may rely on the reports even if they are hearsay.

The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 36

            Defendants Nissan North America, Inc. and Nissan Motor Co., Ltd seek to preclude references to them as manufacturers because they are not manufacturers.  Plaintiffs contend that in fact Defendants are manufacturers.  This is a dispute that cannot be decided on a motion in limine.  The motion is denied without prejudice to objections at trial. 

Defendants’ MIL No. 37

Defendants Nissan North America, Inc. and Nissan Motor Co., Ltd seek to preclude references to Covid and other diseases as comparable to mesothelioma.  This motion is too vague.  It does not seek to exclude any particular document or expert testimony. 

            The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 38

            Defendants Nissan North America, Inc. and Nissan Motor Co., Ltd seek an order requiring Plaintiffs to file all bankruptcy trust claims before the trial.  This is not a proper motion in limine.  Further, Defendants cite no law that the court can order Plaintiffs to file claims.

            The motion is denied.

O’Reilly Auto Enterprises’ MIL

Defendant O’Reilly Auto Enterprises, LLC seeks to preclude a 1986 EPA document entitled “Guidance for Preventing Asbestos Disease Among Auto Mechanics” as irrelevant, hearsay, unscientific, and unduly prejudicial.  If Defendant contends it did not know about the hazards of asbestos by 1986, the document could be relevant to Defendant’s notice of the dangers of asbestos, a non-hearsay use.  Also, the contents of the document may be admissible at trial via an expert if the expert establishes 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.

Defendant also seeks 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 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.  Similarly, smoking does not seem to be an issue in this case.  If Plaintiffs establish that the video is admissible, the portion of the video about the magazine article, smoking, and wives and children are to be redacted.

            The motion is granted in part and denied without prejudice to objections at trial.

            The moving party is to give notice.