Judge: Laura A. Seigle, Case: 19STCV27717, Date: 2023-02-21 Tentative Ruling
Case Number: 19STCV27717 Hearing Date: February 21, 2023 Dept: 15
[TENTATIVE] ORDER RE MOTIONS IN LIMINE
Plaintiffs’ MILs
Plaintiffs
filed no motions.
Defendants’ MIL No. 1
Defendants move to
exclude the terms “friable” and “inherently dangerous” in reference to
asbestos-cement pipe supplied by J-M Manufacturing Company, Inc. They argue the product is safe and referring
to it as dangerous and friable is not accurate.
That is an issue for the trier of fact to determine.
The
motion is denied without prejudice to objection sat trial.
Defendants’ MIL No. 1
Defendants
move to exclude speculative testimony from experts about John Metzger’s
exposure to asbestos at the Torrance refinery because there is no evidence that
he was exposed to asbestos there.
Pursuant to the July 8, 2022 CMO, a motion to exclude speculative
testimony is deemed made and denied.
Defendant did not show good cause to depart from this order. Defendants can cross-examine the witnesses to
show that the jury should give their conclusions little weight because of the lack
of evidence that John Metzger was exposed to asbestos.
The
motion is denied without prejudice to objections at trial.
Defendants’ MIL No. 2
Defendants move to
exclude arguments that there is” no safe level “of asbestos, and every exposure
contributes to a cumulative dose as unsupported by science, not the product of
scientific principles, and not a matter of medical consensus. This motion is too vague as Defendants do 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. Defendant did not show good cause
to depart from this order.
Defendants seek to
exclude duplicative testimony. Defendants
did not show that any particular experts have duplicative testimony. If at trial a witness testifies in a
cumulative fashion, Defendants can object at that time.
The motion is denied
without prejudice to objections at trial.
Defendants’ MIL No. 2
Defendants
move to prevent John Templin from relying on testimony from other lawsuits
because that former testimony is inadmissible hearsay.
As an initial matter,
experts can rely on hearsay and tell the jury in general terms that they relied
on hearsay, so long as they do not tell the jury the contents of the
hearsay. People v. Sanchez (2016)
63 Cal.4th 665, 685-686.) Therefore, the
expert can rely on testimony from other lawsuits even if the testimony is not
admissible.
Further, Defendants did
not show that the former testimony is inadmissible. Former testimony can be admissible in certain
situations. If the former testimony is
not admitted at trial, and if an expert attempts to tell the jury the contents
of the former testimony, Defendants should object at that time.
Finally, Defendants argue
the situation of those former deponents was different than John Metzger’s
situation. That is a matter for
cross-examination and the amount of weight the jury should give conclusions
based on such testimony.
The motion is denied
without prejudice to objections at trial.
Defendants’ MIL No. 3
Defendants
move to bifurcate punitive damages. When
a defendant moves to bifurcate, the court is required to preclude the admission
of evidence of the defendant’s financial condition until after the trier of
fact returns a verdict for plaintiff awarding actual damages and finds that the
defendant is guilty of malice, oppression or fraud. (Civ. Code § 3295, subd. (d).)
The motion is granted.
Defendants’ MIL No. 3
Defendants
move to exclude Charles Ay because his conclusions are based on speculation. They also argue he is not qualified because
working as an insulator does not qualify him as an industrial hygienist or
materials analyst and because he has not published scientific articles.
An
expert does not need publish or have advanced degrees. An expert can gain expertise from working in
a particular industry for a long time. Ay
may have a basis for testifying as an expert on particular topics based on his
years of working in the industry. Therefore,
the move to exclude him as not qualified is denied. If at trial Ay does not establish an
expertise for the opinions he plans to offer, Defendants can object then.
The
motion to exclude his opinions as speculative is deemed made and denied
pursuant to the July 8, 2022 CMO.
Defendants did not show good cause to depart from this order. Defendants can cross-examine the expert to
show that the jury should give his conclusions little weight.
The
motion is denied without prejudice to objections at trial.
Defendants’ MIL No. 4
Defendants seek to
exclude evidence of 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. Plaintiffs
can then cross-examine the witness about the fact that the proposed ban was
never effective and was invalidated by the court for lack of evidence.
The
motion is denied without prejudice to a contemporaneous objection at trial.
Defendants’ MIL No. 4
Defendants
move to exclude John Templin’s testimony about what he observed when he visited
a Torrance refinery as lacking foundation because he did not test the
insulation. An expert can testify to
facts and opinions based on his personal experience. Defendants can then cross-examine him about
the weight to be given those opinions based on the lack of testing.
The
motion is denied without prejudice to objections at trial.
Defendants’ MIL No. 5
Defendants
move to exclude any reference to Formosa Plastics Corporation, U.S.A. This motion is too vague and overbroad. There may be relevant and admissible
documents that mention that entity.
Defendants
also move to exclude any argument about J-M A/C Pipe Corporation and/or Formosa
Plastics Corporation, U.S.A. and J-M Manufacturing being successor corporations
because Plaintiff cannot prove any such successor liability. This is a summary judgment motion argument. If successor liability is an issue and needs
to be tried, the parties are to raise the matter of how successor liability is
to be tried with the trial judge.
The
motion is denied without prejudice to objections at trial.
Defendants’ MIL No. 5
Defendants
move to exclude any reference to any brand name, manufacturer or asbestos
content of any pipe insulation not disclosed during discovery. Pursuant to the July 8, 2022 CMO, this motion
is deemed made and denied. Defendants
did not show good cause to depart from this order.
The
motion is denied without prejudice to objections at trial.
Defendants’ MIL No. 6
Defendants
move to exclude the testimony of Daryl Wilkinson under Berroteran. The July 8, 2022 CMO sets forth the procedure
for making Berroteran objections to transcripts of former
testimony. The court has already ruled
on the parties’ Berroteran objections.
The
motion is denied.
Defendants’ MIL No. 6
Defendants
move to exclude evidence of their financial status and law firm size. This motion is deemed made and granted pursuant
to the July 8, 2022 CMO except in compliance with Civil Code section 3294 et
seq. Plaintiffs did not show good cause
to depart from this order.
The
motion is granted.
Defendants’ MIL No. 7
Defendants
move to exclude evidence of a 1937 survey prepared by Roy Bonsib for Standard
Oil Company as irrelevant because it concerns Standard Oil Company, which is
not a party to this case. This report is
from 1937, far before the 1968 to 1971 period when John Metzger was working in
the refinery. Plaintiff states the
survey is “state of the art evidence,” but a 1937 document is hardly 1968-1971
state of the art. If the point of the
evidence is to show that by 1968 Defendants knew that asbestos was harmful,
there is plenty of contemporaneous evidence to show that. The 1937 survey is cumulative, will consume
an undue amount of time, and is not relevant to showing Defendants’ knowledge
in 1968 or the state of the art in 1968.
The
motion is granted.
Defendants’ MIL No. 7
Defendants
move to exclude references to lost records as irrelevant and more prejudicial
than probative. If Plaintiffs establish
that the lost records had relevance to their claims and the records were lost
willingly, the evidence that they were lost may be relevant. Therefore, at this point, the court cannot
conclude the references are irrelevant and prejudicial.
The
motion is denied.
Defendants’ MIL No. 8
Defendants move to
exclude evidence of working conditions at their manufacturing facilities as
irrelevant and unduly prejudicial because John Metzger was never employed at
those facilities. This motion is too
vague. If this motion refers to something
like workers being exposed to asbestos at the facilities, the evidence could be
relevant. For example, the evidence of workers’
asbestos exposure at the facilities could be relevant to knowledge or notice.
The
motion is denied without prejudice to objections at trial.
Defendants’ MIL No. 8
Defendants move to
exclude arguments that “there is no safe dose “of asbestos, and “a single fiber
or any exposure” is enough to cause disease.
This motion is too vague. In
addition, pursuant to 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.
Defendant did not show good cause to depart from this order.
The motion is denied
without prejudice to objections at trial.
Defendants’ MIL No. 9
Defendants move to
exclude evidence about their 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’ MIL No. 9
Defendants seek to
exclude evidence of medical expenses not actually incurred. Pursuant to the July 8, 2022 CMO, this motion
is deemed made and denied, and Defendants did not show cause to depart from
that order.
The motion is denied
without prejudice to objections at trial.
Defendants’ MIL No. 10
Defendants move to
exclude any evidence of their lobbying activities and of any trade association
of which they were members as prejudicial and confusing. The motion regarding trade associations is
deemed made and denied pursuant to the July 8, 2022 CMO. The evidence regarding lobby is too vague. Defendants do not identify any specific
evidence to be excluded.
Therefore, the motion is
denied without prejudice to objections at trial.
Defendants’ MIL No. 10
Defendants
move to exclude evidence about who third parties were employed by. This motion is too vague. A witness can testify about what he or she
personally observed. If John Metzger saw
people wearing Mobile Oil shirts and hats, he can testify that is what he
saw. It is for the jury to decide what
inferences to draw from that testimony.
The
motion is denied without prejudice to objections at trial.
Defendants’ MIL No. 11
Defendants seek to
exclude testimony and videos from William Longo and Richard Hatfield about work
simulations because the simulations are not similar to John Metzger’s
exposure. Defendants argue 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.
(Motion at p. 4-5, 11.) 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.)
The
motion contends Metzger’s working conditions were different from a small,
sealed chamber. At trial, Defendants can
cross-examine the experts about the similarities and differences of the
workplace 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’ MIL No. 11
Defendants
move to exclude the testimony of George Metzger as irrelevant, speculative and
more prejudicial than probative.
Pursuant to the July 8, 2022 CMO, this motion is deemed made and denied.
The
motion is denied without prejudice to objections at trial.
Defendants’ MIL No. 12
J-M Manufacturing Company
seeks to exclude evidence that it has any liability for products sold by
Johns-Manville Corporation because it is a separate entity and J-M
Manufacturing did not assume any liabilities of Johns-Manville Company. Plaintiffs state they do not seek to hold J-M
Manufacturing Company liable for any product sold before 1983 and are not
seeking to hold J-M Manufacturing Company liable for John-Manville Company’s
liabilities. Therefore, the parties
should be able to stipulate that Plaintiffs will not make any argument about J-M
Manufacturing Company being liable for products sold by Johns-Manville
Corporation.
The motion is off
calendar. The parties are to agree to a
stipulation.
Defendants’ MIL No. 12
Defendants
again move to bifurcate punitive damages.
When a defendant moves to bifurcate, the court is required to preclude
the admission of evidence of the defendant’s financial condition until after
the trier of fact returns a verdict for plaintiff awarding actual damages and
finds that the defendant is guilty of malice, oppression or fraud. (Civ. Code § 3295, subd. (d).)
The motion is granted.
Defendants’ MIL No. 13
Defendants move to
exclude evidence of various bankruptcies.
Pursuant to the July 8, 2022 CMO, this motion is deemed made and
granted. Plaintiffs did not show good
cause to depart from this ruling.
Therefore, the motion is granted.
Defendants’ MIL No. 13
Defendants move 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. 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.
Defendants’ MIL No. 14
Defendant
George Dakovich & Sons moves to exclude the testimony of John Metzger
because it was not a defendant in the case at the time of his deposition and because
the testimony is hearsay. Plaintiffs say
they served George Dakovich & Sons on August 13, 2019, the deposition was
on October 20, 2019, and George Dakovich & Sons did not file an answer
until October 28, 2019. John Metzger
died on May 15, 2020.
Defendant could have
attended the October 20, 2019 deposition if they had promptly and timely
answered the complaint but for some reason they delayed in answering. Once Defendant did answer, it could have
sought a deposition of John Metzger in the many months before he died, but
Defendant again delayed. Defendant did
not show good cause for not timely answering and attending the deposition, and
then for not timely seeking another deposition of John Metzger.
The
motion is denied.
Defendants’ MIL No. 15
No
motion was filed.
Defendants’ MIL No. 16
No
motion was filed.
Defendants’ MIL No. 17
This
is the third defense motion on this topic.
See MIL Nos. 2 and 8.
Defendants’ MIL No. 18
Defendants
move to exclude expert testimony regarding the term “substantial factor.” Pursuant to the July 8, 2022 CMO, this motion
is deemed made and denied. Defendants
did not show good cause to depart from this order.
The
motion is denied without prejudice to objections at trial.