Judge: Laura A. Seigle, Case: 20STCV12435, Date: 2023-08-31 Tentative Ruling

Case Number: 20STCV12435    Hearing Date: September 11, 2023    Dept: 15

[TENTATIVE] ORDERS RE MOTION IN LIMINE NO. 53, MOTION TO BIFURCATE

MOTION IN LIMINE NO. 53

            Defendants filed a motion in limine to limit the testimony of Plaintiffs’ expert David Rosner.  Although the motion is 12 pages long, it does not identify specific documents or testimony to be excluded. 

            The motion seeks to exclude all testimony that is not “the widely held opinion and predominant view of the scientific and medical community.”  (Motion at p. 5.)  This is too vague.  The motion does not identify any specific exhibit or testimony to be excluded.

            The motion seeks to exclude all documents not dated between 1976 and 1999 because any documents before or after those dates would not include knowledge that is “reasonably scientifically knowable.”  (Motion at p. 5.)  This makes little sense.  Why wouldn’t documents written in 1974 or 1975 be scientifically knowable in 1976?  Again, the motion does not specify the documents to be excluded.

            The motion seeks to seeks to exclude testimony about asbestosis, lung cancer, and “asbestos in general.”  (Motion at p. 6.)  This is too vague and overbroad.  This case is about asbestos.  The court cannot exclude testimony about “asbestos in general.”  While evidence about asbestosis and lung cancer very well may be irrelevant and consume an undue amount of time, Defendants is simply guessing that Plaintiffs will have the jury “sit through hours of testimony concerning hundreds of articles, publications, newspaper reports, and trade journals related to the disease’s [sic] asbestosis and/or lung cancer.”  (Motion at p. 7.)  Given that Plaintiffs listed two hours of testimony for Rosner on the witness list, Plaintiffs are not going to spend hours on hundreds of articles about other diseases.  In any event, if at trial Plaintiffs start asking questions about asbestosis and lung cancer, Defendants can object at that time.

            The motion seeks to exclude “all testimony and documents that do not pertain to when the medical and scientific community widely held the predominant opinion that asbestos exposure from Defendants’ Products could cause mesothelioma or that exposure to Defendant’s Products could increase the risk of that disease.”  (Motion at p. 8.)  This is too vague.  The motion does not list the specific documents or testimony to be excluded.  And it is likely to be disputed whether particular (unspecified) documents pertain or do not pertain to that issue. 

            The motion seeks to exclude all evidence about products not at issue in this case, citing Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987.  (Motion at p. 9.)  Defendant contends that case held “that the state of the art evidence must also relate to the product in question.”  (Motion at p. 9.)  Defendant does not provide a page cite for that assertion.  The case held that “a defendant in a strict products liability action based upon an alleged failure to warn of a risk of harm may present evidence of the state of the art, i.e., evidence that the particular risk was neither known nor knowable by the application of scientific knowledge available at the time of manufacture and/or distribution.”  (Anderson, supra, 53 Cal.3d at p. 1004.)  The case does not hold that a plaintiff is precluded from presenting any particular evidence.  Nor does the case hold that only evidence about a particular product is admissible.  In any event, Defendants’ motion is too vague.  For example, an expert may be able to establish at trial that studies about asbestos exposure from other products are relied upon by experts in the field.  And Defendants do not define what they mean by “the product in question.”  For example, if a defendant made a particular brand of asbestos-containing gasket, must the state of the art evidence discuss only that particular brand of gasket?  Or can the state of the art evidence concern gaskets generally?  If Defendants assert that the evidence must address the particular brand of gasket, that is too narrow, and they have not cited legal authority requiring such a narrow definition. 

            The motion contends that Rosner’s testimony is “pure speculation” and irrelevant.  (Motion at p. 11.)  Pursuant to the July 8, 2022 CMO, motions to exclude speculative and irrelevant evidence are deemed made and denied.  Defendants did not show good cause to depart from that order.

            The motion seeks to exclude “general testimony” not related to Strand Lighting LLC.  (Motion at p. 12.)  Strand Lighting LLC is now in bankruptcy and the claims against it are stayed.  Therefore, little if any testimony will be about Strand Lighting.  In any event “general testimony” is too vague a category of testimony to exclude. 

            The motion is denied without prejudice to objections at trial.

            The moving party is to give notice.

MOTION TO BIFURCATE

Defendant Vari-Lite, LLC filed a motion to bifurcate the issue of its liability as a successor to Strand Lighting LLC, asking that this issue be tried to the court before starting the jury trial.  “[T]he question whether it is fair to impose successor liability is exclusively for the trial court,” and it is error to instruct the jury on the elements of whether successor liability.  (Rosales v. Thermex-Thermatron, Inc.  (1998) 67 Cal.App.4th 187, 196.) 

Plaintiffs did not file an opposition and therefore did not show any reason not to try the issue of successor liability first to the court.  Therefore the motion is granted.

The moving party is to give notice.