Judge: Laura A. Seigle, Case: 20STCV08052, Date: 2023-07-21 Tentative Ruling

Case Number: 20STCV08052    Hearing Date: August 7, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTIONS IN LIMINE

Plaintiffs’ MIL No. 1

            This motion seeks to exclude improper statements during voir dire and improper arguments, including questions about Covid, cancer, and corporations, expressing sympathy, mentioning background exposure, referencing the government’s use of asbestos, and mentioning nature or God.

            As an initial matter, this is several motions combined into one.

            (a)  Questions about Covid, cancer and corporations:  The trial court determines the scope of voir dire and will give the attorneys the rules for that trial court.  If any attorney asks inappropriate questions during voir dire, the other side should object at that time.  A motion in limine is not the proper place to define the questions that can and cannot be asked in voir dire.  Denied without prejudice to objections at trial.

            (b)  Sympathy:  Plaintiffs cite no law prohibiting a defense counsel briefly to express sympathy for a plaintiff.  That is a common occurrence.  Statements of attorneys are not evidence, as the court will instruct the jury.  Denied without prejudice to objections at trial.

            (c)  Background exposure:  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.  Denied without prejudice to objections at trial.

            (d)  Government’s use of asbestos:  This is too vague.  Scientific articles and studies relied upon by experts could mention this use of asbestos, and an expert might be able to establish a basis for relying on and describing such studies.  Denied without prejudice to objections at trial.

            (e)  God or Mother Nature:  This motion is too vague.  Scientific articles and studies relied upon by experts could mention that asbestos is a naturally occurring mineral, and an expert might be able to establish a basis for relying on and describing such studies.  Further, there might be evidence that asbestos comes from mines, making it part of nature.  The fact that it is naturally occurring is not prejudicial.  Denied without prejudice to objections at trial.

Plaintiffs’ MIL No. 2

            Plaintiffs move to exclude evidence of the contents of the complaint and references to former defendants no longer involved in the case.  This motion is too vague and overbroad. 

First, the parties must refer to the contents of the complaint in order to litigate this case.  The entire point of a trial is for the plaintiff to prove the allegations asserted in the complaint.  A request to modify caption pages so that the captions only refer to the defendants remaining in the case for trial is deemed made and granted pursuant to the July 8, 2022 CMO.  Defendants did not show good cause to depart from that order.

Also, scientific articles or other documents may mention former defendants no longer involved in this case, and reference to former defendants may be permissible for purposes of allocation of fault.

            The motion is denied in part without prejudice to objections at trial.  The motion is granted in part to allow for the modification of caption pages to refer only to defendants remaining the case but not so as to affect any allocation of fault under Proposition 51.

Plaintiffs’ MIL No. 3

            Plaintiffs seek to exclude evidence or argument against the substantial factor test.  This motion is too vague.  Plaintiffs did not identify any specific evidence or expert testimony to be exclude.  The jury instructions will tell the jury the proper test to apply.  The motion is denied without prejudice to objections at trial.

Defendants’ MIL re 72-hour Disclosure

            Defendant Hirsch Pipe & Supply seeks an order about when witnesses and trial exhibits need to be disclosed.  This is not a proper MIL because it does not seek to exclude evidence.  The trial judge will have rules about disclosing witnesses and exhibits.

            The motion is denied.

Defendants’ Motion Re Prior Testimony

            Familian filed a motion saying it plans to file a motion to exclude prior deposition testimony from other cases and to exclude references to Johns-Manville and JM-Manufacturing.

            First, objections to prior deposition testimony are handle via the procedure and timeline set out in the July 8, 2022 CMO and August 2022 Amendment.  The court already ruled on general objections to former deposition testimony, and the time to make such general objections has passed.  This motion is denied.

            Second, the time to file a motion in limine regarding Johns-Manville and JM-Manufacturing has passed.  The motion is denied.

Defendants’ Motion to Bifurcate

            Defendant Hirsch Pipe & Supply moved to bifurcate punitive damages.  The motion is granted.

Defendants’ Motion re Time Limits

            Defendant Hirsch Pipe & Supply moved to enforce time limits.  This is not a proper motions in limine as it does not seek to exclude evidence.  The trial court may have its own rules about time limits.  The motion is denied.

Defendants’ Motion re Suppliers

            Defendant Hirsch Pipe & Supply seeks an order precluding an argument that suppliers are held to the same standard as experts.  This motion is too vague, and it is a matter to be handled by way of jury instructions.  The trial court will instruct the jury on suppliers’ duties.  Also, pursuant to the July 8, 2022 CMO, this motion is deemed made and denied so long as there is an operative strict liability failure to warn cause of action.  Defendant did not show good cause to depart from the CMO.  The motion is denied without prejudice to objections at trial.

Defendants’ Motion Re Tests

            Defendant DAP, Inc. seeks to exclude evidence about industrial hygiene testing and air monitoring at its manufacturing facilities as irrelevant and prejudicial.  Such evidence could be relevant to notice and knowledge.  If DAP, Inc. contends it did not know about the hazards of asbestos, testing at its facilities could be relevant to show that it not only knew about the hazards but was taking precautions to protect its workers.  The motion is denied without prejudice to objections at trial.

Defendants’ Motion Re Post Sale Duty to Warn

            Defendant HD Supply, Inc. moves to exclude evidence about any post-sale duty to warn.  This motion is deemed made and denied pursuant to the July 8, 2022 CMO.  Defendant did not show good cause to depart from the CMO.  The motion is denied without prejudice to objections at trial so long as the cause includes an operative negligence cause of action.

The moving party is to give notice.