Judge: Laura A. Seigle, Case: 19STCV46925, Date: 2023-01-09 Tentative Ruling

Case Number: 19STCV46925    Hearing Date: January 9, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTIONS IN LIMINE

Plaintiffs’ MIL No. 1

            Plaintiffs move to exclude evidence that mesothelioma can be caused by something other than asbestos as speculative.  Plaintiffs argue, without any evidence, that there is no evidence that mesothelioma can be caused by radiation, age, or spontaneously.  The court cannot rule as a matter of law based merely on Plaintiffs’ assertions that there is no other possible cause for mesothelioma.

            The motion is denied without prejudice to objection at trial.

Plaintiffs’ MIL No. 2

Plaintiffs move to exclude evidence that any of the defendants’ businesses closed or products lost money as a result of discontinuing asbestos-related products.  This motion is too vague.  Plaintiffs do not identify any specific defendant who will make this argument or any specific product that was discontinued.

            The motion is denied without prejudice to objection at trial.

Plaintiffs’ MIL No. 3

            Plaintiffs move to exclude any reference to “cleavage fragments” or definitions of asbestos.  Plaintiffs contend Defendants have no evidence that different types of asbestos or cleavage fragments make a difference to causing disease.  Plaintiffs say OSHA determined there is no difference in risk based on fibers and cleavage fragments.

            This is a disputed issue for the jury to decide.  The court cannot determine as a matter of law that Defendants have no evidence to support their contentions.

            The motion is denied without prejudice to objection at trial.

Plaintiffs’ MIL No. 4

Plaintiffs seek to exclude evidence of insurance coverage or collateral source benefits.  Pursuant to the July 8, 2022 CMO, this motion is deemed made and granted.  Defendants did not show good cause to depart from the order. 

Therefore the motion is granted, except as to evidence of insurance to establish the actual amount paid of any medical bill.

Plaintiffs’ MIL No. 5

            Plaintiffs seeks to preclude Defendants from telling their corporate stories.  Just as plaintiffs typically tell some of their family history to the jury, corporate defendants can tell the jury generally about the history of the corporation. 

            The motion is denied without prejudice to objection at trial.

Plaintiffs’ MIL Nos. 6, 7

            Plaintiffs move to preclude defense expert Bryan Hardin from testifying about animal studies in 1973, 1979, and 1981, asserting the studies are flawed, are outdated, and/or did not use Vanderbilt talc.  If Hardin establishes that these studies are the type of material that experts in the field rely upon, evidence about the studies may be admissible.  Plaintiffs can then cross-examine the expert about the perceived deficiencies in the studies and argue to the jury that they should be given little or no weight.

            The motions are denied without prejudice to objection at trial.

Plaintiffs’ MIL No. 8

            Plaintiffs move to exclude evidence or comments about any speculative genetic cause of the mesothelioma.  This motion is too vague.  Plaintiffs do not identify specific testimony to be excluded.  Pursuant to the July 8, 2022 CMO, a motion for exclusion of speculative evidence is deemed made and denied without prejudice to a contemporaneous objection at trial.  Plaintiffs did not show good cause to depart from this order.

The motion is denied without prejudice to objection at trial.

Plaintiffs’ MIL No. 9

Plaintiffs move to exclude evidence that Marotta’s aunt had breast cancer.  Breast cancer is irrelevant to this case, and the evidence will be a waste of time.

            The motion is granted.

Plaintiffs’ MIL No. 10

            No motion was filed.

Plaintiffs’ MIL No. 11

            Plaintiffs seek to preclude any reference that any of Plaintiffs’ experts were excluded or had their testimony limited in other trials.  This motion is too vague.  It does not identify the experts, cases, courts, or excluded or limited opinions.

            The motion is denied without prejudice to objections at trial.

Plaintiffs’ MIL No. 12

            Plaintiffs move to exclude any definition of asbestos that is not relevant because regulatory bodies do not rely on these definitions and the defense experts have no basis for these definitions.  This motion is a repeat of Plaintiffs’ MIL No. 3.  For the same reasons, it is denied without prejudice to objections at trial.

Plaintiffs’ MIL No. 13

            Plaintiffs move to exclude evidence about “one exposure” causation.  Pursuant to the July 8, 2022 CMO, this motion is deemed made and denied without prejudice to objections at trial.  Plaintiffs did not show good cause to depart from this order.

            The motion is denied without prejudice to objection at trial.

Plaintiffs’ MIL No. 14

            Plaintiffs move to exclude government definitions of asbestos after 1971 because the exposure here took place in the 1970s.  Plaintiffs did not show that later government definitions of asbestos are irrelevant.  The issue here is not simply whether Defendants were complying with the government regulations in effect in the 1970s (if that were the case, then only the 1970s regulations might be relevant).  Later government definitions and regulations of asbestos could be the type of material experts in the field generally rely upon as accurate.

            The motion is denied.

Plaintiffs’ MIL No. 15

            Plaintiffs move to preclude Defendants from arguing that NIOSH disclaimed a 1980 report because the word “disclaim” is not in the report.  To the contrary, the report states “Disclaimer: . . .  This document does not represent and should not be construed to represent any agency policy or determination.”  If Plaintiffs use the 1980s report at trial, Defendants have the right to argue that the government issued the Disclaimer.

            The motion is denied without prejudice to objection at trial.

Plaintiffs’ MIL No. 16

            Plaintiffs seek to preclude any argument that a NIOSH Roadmap says Vanderbilt’s talc does not cause mesothelioma.  Plaintiffs argue the Roadmap only says that the science is not yet settled.  The court cannot decide what the Roadmap says based on the information provided.  The impact of the NIOSH Roadmap and the weight to be given it is a matter for the jury to decide.

            The motion is denied without prejudice to objection at trial.

Plaintiffs’ MIL No. 17

            Plaintiffs seek to exclude any expert not disclosed during discovery or made available for a deposition.  Plaintiffs do not identify any such expert.  Therefore the motion is too vague.  Also, pursuant to the July 8, 2022 CMO, this motion is deemed made and denied.

            The motion is denied without prejudice to objection at trial.

Plaintiffs’ MIL No. 18

            No motion was filed.

Plaintiffs’ MIL No. 19

Plaintiffs seek to exclude evidence that asbestos is the state rock as irrelevant and misleading.  Testimony about the state rock will consume an undue amount of time and has very little probative value.

            The motion is granted.

Plaintiffs’ MIL No. 20

            Plaintiffs move to exclude evidence the decedent’s father smoked.  This evidence is irrelevant and a waste of time.  The motion is granted.

Plaintiffs’ MIL No. 21

            Plaintiffs move to exclude any evidence about possible other exposures as speculative and unsubstantiated.  Pursuant to the July 8, 2022 CMO, this motion is deemed made and denied.  Plaintiffs did not show good cause to depart from the CMO.

            The motion is denied without prejudice to objection at trial.

Plaintiffs’ MIL No. 22

            No motion was filed.

Plaintiffs’ MIL No. 23

Plaintiffs seek to exclude evidence of a procedure called talc pleurodesis as not relevant to causation and irrelevant, prejudicial, and confusing to the jury.  If the decedent had this procedure, the motion is denied without prejudice to an objection at trial.  If she did not have this procedure, the motion is granted as the evidence would require an undue amount of trial time and confusing medical evidence explaining the purposes of the procedure and when and how it is used.

Plaintiffs’ MIL No. 24

            Plaintiffs move to exclude evidence of pictures of talc mines because they do not accurately depict the conditions of the mines at the time of the exposure.  Plaintiffs do not identify the photos and did not attach them to the motion.  Plaintiffs do not explain how the conditions depicted in the photos are so different from the conditions at the time of the exposure as to be prejudicial.  Plaintiffs do not explain how differences in the conditions of the mines are prejudicial.  In sum, the motion is too vague.

            The motion is denied without prejudice to objection at trial.

Defendants’ MIL No. 1

            Bristol-Myers moves to exclude evidence of reports from the CTFA in 1973 as irrelevant because Bristol-Myers Squibb did not exist then and did not participate in the study and as unduly prejudicial and confusing.  This is the type of evidence an expert might rely upon, and it could be relevant to notice and knowledge more broadly.

            The motion is denied without prejudice to objection at trial.

Defendants’ MIL No. 2

            Bristol-Myers moves to exclude evidence about the CTFA/PCPC trade organization.  Pursuant to the July 8, 2022 CMO, this motion is deemed made and denied.  Defendant did not show good cause to depart from that order.

            The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 3

            Bristol-Myers seeks to exclude all evidence about a talc mine in Italy if Plaintiffs cannot prove the talc from that mine was used in any products Plaintiffs used and evidence about other products Plaintiffs did not use.  This motion is too vague.  It does not identify any specific evidence or opinion to be excluded.  Also, evidence about talc from that mine and talc used in other products could be the type of evidence relied on by experts.  The experts can be cross-examined about that reliance, and that they relied on such information goes to the weight to be given their opinions.

            The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 4

            Vanderbilt Minerals moves to exclude evidence of workers’ compensation claims or allegations by its workers related to asbestos-related diseases.  If notice is contested, some evidence of the claims and allegations may be relevant.  However, the details of other claims, workers’ compensation actions, and other litigations would be unduly prejudicial, time-consuming, and confusing to the jury.  It is for the trial judge to determine how much is too much.

            The motion is denied subject to objection at trial.

Defendants’ MIL No. 5

            Vanderbilt Minerals moves to exclude the Hull Paper as “nothing more than junk science” because its authors serve as expert witness for plaintiffs, it was not subject to peer review, and it did not follow the proper methodology. 

            If an expert establishes that the Hull Paper is the type of material that experts in the field rely upon, evidence about the Hull Paper may be admissible.  Defendant can then cross-examine the expert about the perceived deficiencies in the study and argue to the jury that it should be given little or no weight.

            The motion is denied without prejudice to objection at trial.

Defendants’ MIL No. 6

            Vanderbilt Minerals seeks to exclude the general use of the word “asbestos” during the trial in this asbestos case without a more specific description of the type of asbestos being referred to.  This is too vague and overbroad.  “Asbestos” is a word commonly used in asbestos litigation.  If a question during trial requires a more specific definition of the word, Defendant can object at that time.

            The motion is denied without prejudice to objection at trial.

Defendants’ MIL No. 6

            Duncan Enterprises moves to exclude speculative evidence about whether a product contained talc.  Pursuant to the July 8, 2022 CMO, this motion is deemed made and denied.  Defendant did not show good cause to depart from this order.

            The motion is denied without prejudice to objection at trial.

Defendants’ MIL No. 7

            Vanderbilt Minerals moves to apply Texas law in this case.  This is not a proper motion in limine seeking to exclude evidence.  The motion is denied.

Defendants’ MIL No. 8

            Vanderbilt Minerals moves to exclude testimony based on medical case reports in medical journals.  This motion is too vague as it does not identify any specific evidence to be excluded.

            The motion is denied without prejudice to objection at trial.

Defendants’ MIL No. 9

            Vanderbilt Minerals seeks to preclude any mention of an investigation against John Gamble relating to a change in his work at NIOSH under Evidence Code section 352.

            The investigation into Gamble is irrelevant, will be a confusing side-show, and will take an undue amount of time in a trial that will already require too much time of the jury.

            The motion is granted.

Defendants’ MIL No. 10

            Vanderbilt Minerals seeks to exclude all evidence of any documents from Johns-Manville Corporation about Vanderbilt Minerals.  This motion is too vague and broad in referring to all such documents.  

Defendant then specifies three documents to exclude, arguing they are hearsay and Plaintiffs cannot establish that the documents are business records.  If Plaintiffs seek to admit the documents for the truth of the matter (rather than for a non-hearsay purpose such as notice) and fail to establish a hearsay exception, Defendant can object at that time.

The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 11

            Vanderbilt Mineral seeks to exclude a November 11, 1983 letter as lacking authentication, hearsay, and an improper expert opinion.  If Plaintiffs are able to authenticate the letter at trial, it may be admissible for a non-hearsay purpose, such as notice or knowledge about asbestos in talc.  Or an expert may be able to establish that it is the type of material that experts in the field reliable upon.

            The motion is denied without prejudice to objection at trial.

Defendants’ MIL No. 12

            Vanderbilt Minerals seeks to preclude March 24, 1982 and March 31, 1982 OSHRC documents about asbestos in R.T. Vanderbilt’s talc as lacking foundation, hearsay, and improper expert testimony.

            If Plaintiffs are able to authenticate the documents at trial, they may be admissible for a non-hearsay purpose, such as notice or knowledge about asbestos in talc.  Or an expert may be able to establish that it is the type of material that experts in the field reliable upon.

            The motion is denied without prejudice to objection at trial.

Defendants’ MIL No. 13

            Vanderbilt Minerals moves to exclude all evidence that it communicated with OSHA about an error in defining asbestos.  This motion is too vague and overbroad.  For example, Defendant’s communications may be relevant to its notice or knowledge about asbestos in talc.

            In addition, Vanderbilt Minerals seeks to exclude six document as irrelevant, not business records, and hearsay.  If Plaintiffs are able to establish the records are business records or seek to admit them for a non-hearsay purpose, they may be relevant to show Defendant knew about the presence of asbestos in talc.

            Defendant seeks to exclude a deposition transcript from Thomas Rogers.  Deposition transcripts from prior cases are handled by way of the page/line designation process.

            Finally Defendant seeks to exclude a June 23, 1992 Federal Register Entry which includes a disclaimer by NIOSH stating a 1980 report is not agency policy or determination.  Based on the parties’ motions in limine, both sides in this case seem to want to tell the story about how NIOSH originally issued a report in 1980 about asbestos in talc, which it then disclaimed in this 1992 entry.  If either party uses the 1980 report, then the 1992 entry may also be relevant and admissible.

            The motion is denied without prejudice to objection at trial.

Defendants’ MIL No. 14

            Vanderbilt Minerals seeks to exclude evidence about diseases other than mesothelioma as not relevant, prejudicial, confusing, and too time-consuming.  Plaintiffs allege Defendant’s products caused the decedent to develop mesothelioma, not some other disease.  Therefore evidence about other diseases would be unduly time-consuming, confusing, and prejudicial.

            The motion is granted.

Defendants’ MIL No. 15

            Vanderbilt Minerals seeks to exclude statements that its products kill people as argumentative and prejudicial.  This motion is too vague.  If at trial someone makes an improper statement, Defendant should object at that time.

            The motion is denied without prejudice to objection at trial.