Judge: Laura A. Seigle, Case: 19STCV41833, Date: 2023-03-13 Tentative Ruling

Case Number: 19STCV41833    Hearing Date: March 13, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTIONS IN LIMINE

Plaintiffs MIL Re Bankruptcy Trust Claims

Plaintiffs move to exclude evidence about bankruptcy trust claims.  Pursuant to the July 8, 2022 CMO, the motion to exclude evidence of other bankruptcies is deemed made and granted.  Defendants did not show good cause to depart from this order. 

Defendants argue the bankruptcy claims forms are admissions of Plaintiffs.  Defendants have not yet established the claim forms are authorized admissions.  The claims are excluded until that is established.

The motion is granted unless and until Defendants establish the bankruptcy form claims are authorized admissions.

Plaintiffs MIL Re Exposure Limits

Plaintiffs move to exclude evidence about permissible exposure limits established by government regulations as irrelevant, confusing, and requiring an undue amount of time.  An expert may be able to show that government regulations about permissible exposure limits are the type of information experts in the field rely upon.  Plaintiffs can cross-examine the expert about whether the regulations are applicable to the exposures alleged in this case.  The issues raised by Plaintiffs, such as regulations applying to the workplace, go to the weight to be given the evidence, and Plaintiffs can argue the jury should give the exposure limits no weight.

            The motion is denied without prejudice to objections at trial.

Plaintiffs MIL Background Asbestos

Plaintiffs move to exclude all reference to background asbestos as speculative and irrelevant.  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.

            The motion is denied without prejudice to objections at trial.

Plaintiffs MIL Re Proximate Cause

Plaintiffs seek to preclude testimony about “but for” causation.  Pursuant to the July 8, 2022 CMO, this motion is deemed made and denied so long as the court intends to use CACI 435.  Decisions about jury instructions are for the trial court.

            The motion is denied without prejudice so long as the trial court intends to use CACI 435.

Defendants MIL No. 1

Defendants move to exclude evidence of a 1986 EPA guidance about asbestos as hearsay, unscientific, and unduly prejudicial.  The document could be relevant to Defendants’ 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 that 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.

            The motion is denied without prejudice to a contemporaneous objection at trial.

Defendants MIL No. 2

            Defendants move to exclude evidence of an article authored by Laura Welch.  This motion is deemed made and denied by the July 8, 2022 CMO.  Defendants did not show good cause to depart from that order.  Therefore, the motion is denied without prejudice to objections at trial. 

Defendants MIL No. 3

Defendants seek to exclude testimony from lay witnesses about the asbestos content of products and whether products emitted asbestos fibers on the ground that lay witnesses are not qualified.  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.  Therefore, the motion is denied without prejudice to objections at trial.

Defendants MIL No. 4

Defendants move 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.  Defendants contend the EPA updated its guidance in 2007 so the video is outdated.  That too can be the subject of cross-examination.

Defendants argue 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.

Defendants MIL No. 5

            Defendants move to exclude testimony by any law witness about the cause of Julius Gillum’s cancer.  Plaintiffs filed a statement that they will not introduce such evidence.  The parties should have been able to agree to a stipulation before filing this motion.  The motion is off calendar.

Defendants MIL No. 6

            No motion was filed.

Defendants MIL No. 7

Defendants move to exclude evidence of bans by foreign governments including the EU and France on chrysotile asbestos.  Plaintiffs did not show that there is any evidence any defendant was aware of any 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 the foreign ban.  The evidence would have little probative value because it did not apply to workplaces in the United States.

            The motion is granted.

Defendants MIL No. 8

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 objections at trial.

Defendants MIL No. 9

            Defendants move to exclude all witnesses except expert witnesses from the courtroom.  This is not a proper motion in limine to exclude evidence.  It is a matter of trial procedure to be raised with the trial court.  The motion is denied without prejudice because it is not a motion in limine.

Defendants MIL No. 10

            Defendants seek to exclude evidence about Julius Gillum’s childhood, that his father was murdered and he was raised in an orphanage as irrelevant and unduly prejudicial.  Brief testimony about his childhood may be appropriate as general background information.  However, if Plaintiffs spend too much time on his childhood, Defendants should object at trial.

            The motion is denied without prejudice to objections at trial.

Defendants MIL No. 11

Defendants seek to exclude evidence from the Saranac experiments.  Pursuant to the July 8, 2022 CMO, this motion is deemed made and granted.  Plaintiffs did not show good cause to depart from that order.

            The motion is granted.

Defendants MIL No. 12

            No motion was filed.

Defendants MIL No. 13

Defendants move to exclude testimony and videos from William Longo and Richard Hatfield about work simulations because the simulations are not similar to Julius Gillum’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.  (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 Gillum’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’ Motion to Bifurcate

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.

            The moving party is to give notice.