Judge: Laura A. Seigle, Case: 19STCV31844, Date: 2023-03-13 Tentative Ruling

Case Number: 19STCV31844    Hearing Date: March 13, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTIONS IN LIMINE

Plaintiff’s MIL No. 1

            Plaintiff moves to exclude evidence that other defendants were sued but are not at trial.  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.

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

Plaintiff’s MIL No. 2

Plaintiffs move to exclude irrelevant definitions of asbestos and arguments about cleavage fragments.  Plaintiffs contend Defendants have no evidence that different types of asbestos or cleavage fragments make a difference in causing disease and no scientific evidence supports the use of such definitions by defense expert Matthew Sanchez.  Plaintiffs say OSHA determined there is no difference in risk based on fibers and cleavage fragments.

            Plaintiffs cite depositions of Matthew Sanchez taken years ago in other cases.  Plaintiffs do not cite any of his opinions from this case.  Plaintiff also refers to Imerys as a defendant, but that entity is not a party to this case.  This 19-page motion in limine was not written with any reference to the specific evidence in this case and appears to be form motion written to be filed in any case where Sanchez is designated as an expert.  A lengthy motion about evidence presented in cases six and seven years ago that does not cite to any specific deposition or expert report in this case is improper and a waste of the court’s time.

            The motion is denied without prejudice to objection at trial.

Plaintiff’s MIL No. 3

            Plaintiffs move to exclude evidence about the BAP1 mutation as irrelevant.  Plaintiffs say there is no evidence Caroline Dotson had the BAP1 mutation.  If that is the case, then there is nothing to exclude.  Plaintiffs do not cite any specific evidence, expert report, expert conclusion, or deposition testimony to be excluded.  Therefore, it is too vague.

            The motion is denied without prejudice to objection at trial.

Plaintiff’s MIL No. 4

            Plaintiffs move to exclude any reference to any orders or rulings in other cases excluding or limiting the testimony of Plaintiffs’ experts.  This motion is too vague.  It does not identify any particular order or ruling to be exclude.  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 the 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 or that no one has questioned the expert’s conclusions or analysis. 

            The motion is denied without prejudice to objections at trial.

Plaintiff’s MIL No. 5

Plaintiffs move to exclude evidence of talc mines not at issue in this case as irrelevant and more prejudicial than probative.  This motion is too vague.  Plaintiffs do not identify specific evidence or testimony by any particular witness that they wish to exclude.  Further, the court cannot conclude as a matter of law that studies done on talc from other mines have no bearing on whether asbestos in talc causes mesothelioma.  An expert may be able to provide a sufficient foundation for considering studies of talc from other mines.

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

Plaintiff’s MIL No. 6

Plaintiffs move to exclude arguments that everyone would have mesothelioma if talc was not safe.  This is a motion about causation and how much exposure is necessary before a person develops mesothelioma.  Pursuant to the July 8, 2022 CMO, motions about causation are deemed made and denied without prejudice to contemporaneous objections at trial.

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

Plaintiff’s MIL Nos. 7-12

Plaintiffs seek to exclude defense experts C. Alan Brown, Jennifer Sahmel, Richard Attanoos, Laura Dolan, and James Delaney from the trial.  Plaintiffs do not identify any specific testimony and do not give any reason for the exclusion.  Therefore, the motions are too vague and a waste of the court’s time.

            The motions are denied.

Defendants’ MIL No. 1

            Defendants move to exclude reference to talcum powder causing asphyxiation or aspiration in infants, talcum powder containing quartz or heavy metals, and talc causing ovarian cancer.  This case is not about infants, heavy metals or ovarian cancer.  This is not a case where the plaintiff alleges failure to warn that the product could cause ovarian cancer.  The evidence, especially about ovarian cancer, would be more prejudicial than probative, would confuse the jury, and would consume an undue amount of time in a trial that is already too long.

            The motion is granted.

Defendants’ MIL No. 2

            Defendants seek to exclude evidence that Johnson & Johnson recalled baby powder in 2019 and discontinued sales in 2020 as irrelevant, unduly prejudicial, and confusing.  Johnson & Johnson is not a party in this case.  These events occurred after the alleged exposure here, and therefore these events have little probative value.  Allowing the evidence would result in much trial time focusing on Johnson & Johnson, which is not a party, and the reasons for its actions, and would be confusing to the jury.

            The motion is granted.

Defendants’ MIL No. 3

Defendants move to exclude all references to the IWGACP formed in 2018 and its 2020-2022 recommendations and papers as irrelevant, misleading, and hearsay.  If an expert establishes that this is the type of background information relied upon by experts, the evidence may be relevant and admissible even if hearsay.  Defendant can then cross-examine the expert on the fact that the work is only preliminary.

            The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 4

            Defendants move to exclude all evidence of talc testing from old Cashmere Bouquet containers because Plaintiffs do not know how the containers were stored or where they came from.  Defendants’ motion refers to more than 40 exhibits, but none were attached to the motion.  The flaws in the talc testing are a subject for cross-examination and go to the weight to be given the expert’s conclusions based on that testing. 

The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 5

            Defendants move to exclude all references to any testing or opinions of non-testifying experts because the testing was paid for by plaintiff’s lawyers in other cases, an article is hearsay and lacks merit, and the talc in the article was not used by Caroline Dotson. 

            This motion is too broad and vague in seeking to exclude all references to any testing or opinions of non-testifying experts.  That would exclude any reference to any scientific article.  An expert can rely on, and tell the jury the contents of, materials that are relied upon as accurate by experts in the field.  To this extent, the motion is denied without prejudice to objections at trial.

            As for the particular article at issue, it is hearsay and its contents cannot be disclosed to the jury unless and until an expert establishes at trial that the article is the type of material experts in the field rely upon or is otherwise admissible.  Further, the article is not relevant unless Plaintiff establishes that she used the same brand of talc during the same time period as the talc referenced in the article. 

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

Defendants’ MIL No. 6

Defendants seek to exclude a paper written by Dr. Jacqueline Moline because it was created for litigation.  The paper is hearsay, but an expert can rely on hearsay and tell the jury generally about the hearsay.  The expert cannot tell the jury the contents of the hearsay unless the expert first establishes that the paper is the type of general background information relied upon by experts in the field.  That Moline wrote the paper as part of litigation goes to the author’s potential bias and the weight for the jury to give to the article. 

Defendants state Moline is not a witness in this case and no other expert can tell the jury the contents of the paper.  However, Plaintiff filed a witness list listing Moline as an expert. 

            Defendants argue the paper ignores other cases and is selective about the information it uses.  If some expert in this case testifies that he or she relied on the Moline paper, Defendants can cross-examine the expert about the other cases that the paper ignore.  This issue goes to the weight to be given the paper and opinions based on the paper.  That the paper supposedly relies on false information is also grounds for cross-examination.

            The motion is granted in part as to the specific contents of the paper unless an expert establishes a basis for the admissibility of the contents at trial.  Otherwise the motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 7

            Defendants move to exclude all reference to a paper authored by Emory, Maddox and Kradin.  The paper is hearsay, but an expert can rely on hearsay and tell the jury generally about the hearsay.  The expert cannot tell the jury the contents of the hearsay unless the expert first establishes that the paper is the type of general background information relied upon by experts in the field. 

            Defendants argue the article should be excluded because Emory only works for plaintiffs.  That may be a basis to argue to the jury that they should view the article with suspicion, but it is not a legal ground for excluding expert testimony (if that were the law, many experts would automatically be excluded). 

            Defendants argue that the article does not disclose the source of its data and the authors refuse to turn over their data.  However, Plaintiffs do not state that they sought the data in discovery. 

            Defendants argue that the article contains false, one-sided, cherry-picked data.  That is ground for cross-examination and goes to the weight the jury should give the article.

            The motion is granted in part as to the specific contents of the paper unless an expert establishes a basis for the admissibility of the contents.  Otherwise the motion denied without prejudice to objections at trial.

            The moving party is to give notice.