Judge: Laura A. Seigle, Case: 20STCV22671, Date: 2024-02-05 Tentative Ruling

Case Number: 20STCV22671    Hearing Date: February 5, 2024    Dept: 15

[TENTATIVE] ORDER RE MOTIONS IN LIMINE

Plaintiffs’ MIL No. 1

            Plaintiffs move to exclude any argument that cosmetic products are FDA-approved because there is no evidence that the FDA approved cosmetics.  This motion is too vague.  If a defendant asks a question suggesting that the FDA approved cosmetics, Plaintiffs can object at that time that the question lacks foundation. 

Plaintiffs more specifically seek to exclude evidence that the FDA has designated talc in cosmetics as “generally regarded as safe” because, according to Plaintiff, there is no evidence the FDA ever made that designation.  If an expert testifies that the FDA in fact has designated talc in cosmetics as “generally regarded as safe,” then Plaintiff can cross-examine the expert about the basis for that assertion.

Plaintiffs also argue evidence of GRAS should be excluded because this is not a food case.  However, if there is evidence that the FDA has designated talc in food as “generally regarded as safe,” and if an expert establishes this is the type of background information relied upon by experts, the evidence may be relevant and may be admissible even if hearsay. 

Plaintiffs move to exclude an FDA report as not relevant.  The court cannot at this time determine whether the FDA report will be relevant.

            The motion is denied without prejudice to an objection at trial.

Plaintiffs’ MIL No. 2

Plaintiff moves to exclude evidence that other defendants were sued but are not at trial and the contents of the complaint because it is not a judicial admission.

Pursuant to the July 8, 2022 CMO, a motion to modify the caption to refer only to defendants remaining in the case is deemed made and granted but not to affect any allocation of fault under Proposition 51.  To the extent the motion seeks to exclude any evidence of other defendants not at trial, the motion is denied as too vague.  For example, a deposition testimony of a witness of another defendant may be admissible, or evidence may be relevant for Proposition 51 purposes.

“ ‘The admission of fact in a pleading is a “judicial admission.” ’  [Citation.]  A judicial admission in a pleading is not merely evidence of a fact; it is a conclusive concession of the truth of the matter.  [Citation.]  ‘Well pleaded allegations in the complaint are binding on the plaintiff at trial.’  [Citation.]  ‘The trial court may not ignore a judicial admission in a pleading, but must conclusively deem it true as against the pleader.’  [Citation.]”  (Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 187.)  Based on this case law, the complaint may contain judicial admissions of fact.  The court therefore cannot conclude at this time that the complaint is inadmissible.

            The motion is granted in part and denied in part without prejudice to objections at trial.

Plaintiffs’ MIL No. 3

            Plaintiffs move to exclude arguments about the “substantial factor” test.  This motion is deemed made and denied pursuant to the July 8, 2022 CMO.  Plaintiffs did not show good cause to depart from that order.  The motion is denied without prejudice to objections at trial.

Plaintiffs’ MIL No. 4

            No motion was filed.

Plaintiffs’ MIL No. 5

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 or unsubstantiated 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.

            (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:  The motion seeks to exclude any statements that God or Mother Nature made asbestos. 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.  If a party starts talking about God at trial, the opposing party can object at that time.  The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 1

            Defendant Avon Products, Inc. moves to exclude three articles as hearsay and irrelevant.

The articles are hearsay, but an expert can rely on hearsay and tell the jury generally that he or she relied on the hearsay.  The expert cannot tell the jury the contents of the hearsay unless the expert first establishes that the article is the type of general background information relied upon by experts in the field or the document is otherwise admissible. 

That an author wrote the article or articles as part of litigation goes to the author’s potential bias and the weight the jury may give the article(s). 

            Defendant argues the articles are unreliable, ignore other cases, and are selective about the information they use.  If some expert in this case testifies that he or she relied on the article or articles, Defendants can cross-examine the expert about the other cases the article or articles ignores.  This issue goes to the weight to be given the articles and opinions based on the articles.  That the articles supposedly relied on false information is also grounds for cross-examination.

            Defendant argues no expert can reasonably rely on the articles.  That cannot be determined until the expert testifies and explains why the expert believes the articles are reliable.

            Defendant argues the author or authors refused to answer questions about the articles.  However, Defendant did not show it subpoenaed the authors for depositions and they refused to answer questions in this case.  If the authors are witnesses in this trial and refuse to answer questions at trial, Defendant can object or seek to have their testimony stricken at that time.

            The motion is granted in part as to the specific contents of the articles unless an expert establishes a basis for the admissibility of the contents at trial.  Otherwise the motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 2

Avon moves to exclude all references to internal documents from Johnson & Johnson, Imerys, and Cyprus as hearsay and not relevant.  This motion is too vague because it does not identify the specific evidence to be excluded.  The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 3

Defendant Avon Products, Inc. moves to exclude evidence about diseases caused by talc other than mesothelioma, such as ovarian cancer.  This case is not about ovarian cancer or diseases other than mesothelioma.  This is not a case where the plaintiff alleges failure to warn that the product could cause ovarian cancer.  The evidence would be more prejudicial than probative, would confuse the jury, and would consume an undue amount of time in a trial that is already too long.  The motion is granted.

Defendants’ MIL No. 4

Avon moves to exclude all reference to other lawsuits involving it and its related entities or illness from use of talc.  This motion is too vague.  For example, it is common in asbestos cases to use deposition testimony from prior cases.  To the extent a party seeks to introduce the amounts of any settlement, judgment, verdict, or award in another litigation, the motion is deemed made and granted pursuant to the July 8, 2022 CMO.

            The motion is granted in part and denied in part subject to objections at trial.

Defendants’ MIL No. 5

Defendant Avon moves to exclude all references to the IWGACP formed in 2018 and its 2020-2022 recommendations and papers as irrelevant, misleading, and hearsay.  If an expert establishes that this is the type of background information relied upon by experts, the evidence may be relevant and admissible even if hearsay.  Defendants can then cross-examine the expert on the fact that the work is only preliminary.  The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 6

Avon moves to exclude evidence of industrial talc mines and products as not relevant because this case involves cosmetic talc.  This motion is too vague.  The motion does not identify any specific evidence to exclude.  The court cannot categorically say that evidence mentioning industrial talc is completely irrelevant.  For example, an expert could rely on studies about talc that mention multiple kinds of talc.

            The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 7

Avon moves to exclude evidence about foreign governmental investigations and proceedings into talcum powder as irrelevant, prejudicial, confusing and time-consuming.  Plaintiffs did not show that any defendant was aware of a foreign investigation or proceeding into talcum powder such that this information is relevant to notice, or that the foreign investigation or proceeding gave Defendant notice of something it was not previously aware of.  Allowing that evidence will consume an undue amount of trial time exploring the reasons for the foreign investigations.  The evidence would have little probative value because foreign investigations do not result in regulations or law in the United States and would be confusing to the jury.  The motion is granted.

Defendants’ MIL No. 8

Avon moves to exclude evidence of products not at issue.  This motion is too vague.  The motion does not identify specific evidence to exclude.  The court cannot categorically say that evidence about other products is completely irrelevant.  For example, an expert could rely on studies about talc that mention multiple other products containing talc, or the evidence could be relevant for Proposition 51 purposes.

            The motion is denied without prejudice to objections at trial.

            The moving party is to give notice.