Judge: Laura A. Seigle, Case: 20STCV20137, Date: 2023-03-08 Tentative Ruling

Case Number: 20STCV20137    Hearing Date: March 8, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTIONS IN LIMINE

Plaintiffs MIL No. 1

            Plaintiffs seek to exclude arguments that mesothelioma is caused by anything other than asbestos.  Plaintiffs contend this argument has no foundation.  This motion is too vague.  It does not identify any specific testimony or piece of evidence to be excluded.  Also, Plaintiffs assert, without any evidence, that there is no cause of mesothelioma other than asbestos.  The court cannot conclude based on Plaintiffs’ assertions alone that some theory that Defendants may advance at trial lacks evidentiary support.

            The motion is denied without prejudice to objections at trial.

Plaintiffs MIL No. 2

            Plaintiffs move to preclude arguments that Defendants were losing money or ended up closing or discontinuing products.  This motion is too vague.  Plaintiffs do not identify any specific evidence from any particular Defendant.

            The motion is denied without prejudice to objections at trial. 

Plaintiffs MIL No. 3

            Plaintiffs move to exclude hearsay from corporate witnesses.  This motion is too vague.  It does not identify any particular witness or any particular testimony to be excluded.  If at trial a witness is asked a question calling for hearsay, Plaintiffs should object at that time.

            The motion is denied without prejudice to objections at trial.

Plaintiffs MIL No. 4

            Plaintiffs move to exclude any evidence about Dennis Freeman’s genes as speculative because there is no such evidence.  Pursuant to the July 8, 2022 CMO, motion about speculation are 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 objections at trial.

Plaintiffs MIL No. 5

            No motion was filed.

Plaintiffs MIL No. 6

            Plaintiffs move to exclude evidence that Dennis Freeman’s mother may have had breast cancer.  Breast cancer is irrelevant to this case, and evidence about breast cancer will be confusing and waste time.  The motion is granted.

Plaintiffs MIL No. 7

            No motion was filed.

Plaintiffs MIL No. 8

Plaintiffs move to exclude evidence that asbestos is the state rock as irrelevant and misleading.  Serpentine is not at issue in the case.  Testimony about the state rock will consume an undue amount of time and has very little probative value.  Evidence about general background asbestos is not excluded.

            The motion is granted.

Plaintiffs MIL No. 9

Plaintiffs move to exclude references to exposure to products from defendants eliminated by motions for summary judgment, pursuant to Code of Civil Procedure section 437c, subdivision (l).  That section states no other defendant “may attempt to attribute fault to, or comment on, the absence or involvement of the defendant who was granted” summary judgment.

            The motion is granted to the extent that Plaintiffs attempt to attribute fault to, or comment on, the absence or involvement of a defendant who was granted summary judgment.

Plaintiffs MIL No. 10

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. 11

Plaintiffs move to exclude evidence or argument that asbestos was necessary to defeat enemies or win a war.  This motion is vague and overbroad.  Evidence of military uses of asbestos may be relevant to knowledge and notice.

The motion is denied without prejudice to objection at trial.

Plaintiffs MIL No. 12

            Plaintiffs move to exclude argument about the lack of an autopsy.  Plaintiffs argue that under Walsh v. Caidin (1991) 232 Cal.App.3d 159, evidence of a lack of an autopsy is inadmissible.  In that case, the defendants filed a cross-complaint for spoliation of evidence based on the plaintiff’s failure to have an autopsy conducted after her husband died.  The court ruled that the surviving spouse had no legal duty to have an autopsy conducted.  (Id. at p. 161.)  Therefore, there was no grounds for alleging spoliation.  (Id. at p. 164.)  Thus the decision in Walsh makes clear spoliation does not occur when a spouse decides not to have an autopsy conducted.  Therefore, the motion is granted to the extent it seeks to preclude argument that Plaintiffs engaged in spoliation of evidence.

            However, Walsh does not stand for the proposition that evidence there was no autopsy must be excluded at trial.  The lack of an autopsy may be relevant to an expert’s analysis or conclusions.  Therefore, the motion is denied without prejudice to objection at trial to the extent it seeks to exclude the fact that there was no autopsy.

Plaintiffs MIL No. 13

            No motion was filed.

Plaintiffs MIL No. 14

Plaintiffs move to exclude evidence of two articles denoted Pierce 2008 and Pierce 2016, which Plaintiffs claim are speculative and not scientifically reliable.  Plaintiffs did not identify any defense expert who relies on these articles and did not cite any deposition testimony of any defense expert about these articles.  Therefore the motion is too vague.

            If a defense expert relies on these articles, Plaintiffs can cross-examine the expert about the articles and argue the expert’s testimony should be given little weight because of the unreliability of the articles.

            The motion is denied without prejudice to objections at trial.

Defendants MIL No. 1

Defendant Amcord move to preclude evidence of working conditions at its facilities as irrelevant and unduly prejudicial because Dennis Freeman was never employed at those facilities.  This motion is too vague.  If this motion refers to something like workers being exposed to asbestos at the facilities, the evidence could be relevant.  For example, the evidence of workers’ asbestos exposure at the facilities could be relevant to knowledge or notice.

            The motion is denied without prejudice to objections at trial.

Defendants MIL No. 1

Defendant Kaiser Gypsum moves to exclude all references to any regulatory bans regarding asbestos-containing products, including foreign bans on the importation of chrysotile asbestos.

            Plaintiffs did not show that there is any evidence any defendant was aware of a 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 and legislative history of the foreign bans.  The evidence would have little probative value because foreign bans did not apply to workplaces in the United States and would be confusing to the jury.

            The motion to exclude evidence about US federal and state regulations is too vague.  The information in existence before the last date of alleged exposure is potentially relevant to show Defendant’s knowledge and notice. 

            The motion is granted as to foreign bans and otherwise denied without prejudice to a contemporaneous objection at trial.

Defendants MIL No. 2

            Amcord moves to exclude photographs that were exhibits at Dennis Freeman’s, Dennea Freeman’s, Linnea Freeman’s and Tamara McFarlan’s depositions as more prejudicial than probative.  The photographs show Dennis Freeman with his wife, grandsons, and family.  This motion is denied.  Because Dennis Freeman has died and cannot testify, the photographs are relevant to provide some information about his life.  The facts that he had a wife and grandchildren and was happy at times in his life are not prejudicial.  If Plaintiffs spend too much time showing photographs to the jury, Defendant can object.

            The motion is denied without prejudice to objections at trial. 

Defendants MIL No. 2 

Kaiser Gypsum moves to exclude arguments that there is no safe level of asbestos, and every exposure contributes to a cumulative dose as unsupported by science and contrary to the law.  This motion is too vague as Defendant does not identify any specific expert testimony to be excluded.   

In addition, the motion would exclude arguments about the standard for proving causation and what “substantial factor” means.  Under the July 8, 2022 CMO, motions to exclude expert opinion about the term “substantial factor” are deemed made and denied without prejudice to objections at trial.  Defendant did not show good cause to depart from this order.

Defendant also argues OSHA and EPA reports are hearsay.  This motion is too vague as Defendant did not identify any specific report to be excluded.  If Plaintiffs ask to admit the reports for the truth of the matter asserted in them, Defendants can object at that time.  However, an expert may rely on the reports even if they are hearsay.

The motion is denied without prejudice to objections at trial.

Defendants MIL No. 3

Amcord moves to exclude any evidence of it lobbying activities and of any trade association of which it was a member as prejudicial and confusing.  The motion regarding trade associations is deemed made and denied pursuant to the July 8, 2022 CMO.  The evidence regarding lobby is too vague.  Defendant did not identify any specific evidence to be excluded. 

Therefore, the motion is denied without prejudice to objections at trial.

Defendants MIL No. 3

            Kaiser Gypsum seeks to preclude Plaintiffs’ telling the jury the contents of documents relied upon by experts because the documents are hearsay, unreliable, and irrelevant.  This motion is too vague.  Defendant did not identify any specific evidence to be excluded.  Also, some of the documents upon which the experts rely may be otherwise admissible.  And if an expert establishes the hearsay is general background information of the type relied upon by experts in the field, the hearsay may be admissible.  (People v. Veamatahau (2020) 9 Cal.5th 16, 22.) 

            The motion is denied without prejudice to objections at trial.

Defendants MIL No. 4

            Kaiser Gypsum moves to exclude evidence about dust levels based on witnesses’ visual observations.  A witness has personal knowledge of what the witness observed firsthand.  Evidence that Plaintiffs or witnesses observed dust may be relevant to the existence of asbestos fibers in the air and how Freeman was exposed to asbestos. 

            The motion is denied without prejudice to objection at trial.

Defendants MIL No. 5

            Defendant Kaiser Gypsum seeks to exclude evidence of a position statement from the Joint Policy Committee of the Societies of Epidemiology published on July 24, 2012 as hearsay, irrelevant and more prejudicial than probative.

            This statement is hearsay and not subject to an exception.  It was published long after the alleged exposure occurred and therefore is not evidence of any defendants’ knowledge or notice at the time of the exposure.  The document was prepared by a body established “to coordinate and unify joint policy actions globally,” and the document itself states it is a call for political action against asbestos rather than an unbiased scientific document.  Explaining the origins and development of the document would consume an undue amount of time and confuse the jury.

            Therefore, the motion is granted.

Defendants MIL No. 6

Kaiser Gypsum seeks to exclude reference to Plaintiffs and the decedent as victims, contending the use of the term is more prejudicial than probative.  Plaintiffs do not identify any need to use the terms “victim” or “victims.”  The use of the term “victim” suggestions someone at fault for harming the victim.  Thus, while the prejudice might not be great, the relevance is negligible. 

The motion is granted.

Defendants MIL No. 7

Kaiser Gypsum seeks to exclude testimony and videos from William Longo and Richard Hatfield about work simulations because the simulations are not similar to Dennis Freeman’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 Freeman’s working conditions were different from a small, sealed chamber.  At trial, Defendant 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. 

            Defendant 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 MIL No. 8

            Kaiser Gypsum moves to exclude the argument that any product contained chrysotile asbestos contaminated with tremolite.  Defendant contends this argument is speculative.  Pursuant to the July 8, 2022 CMO, this motion about speculative evidence is deemed made and denied subject to objections at trial.  Also, the motion is too vague as it does not identify any specific testimony or exhibit to be excluded.

            The motion is denied without prejudice to objections at trial.

Other MILs

            Plaintiffs filed oppositions to other motions in limine.  However, those motions were not filed.  The court cannot rule on un-filed motions.

            The moving party is to give notice.