Judge: Laura A. Seigle, Case: 20STCV32139, Date: 2022-08-01 Tentative Ruling
Case Number: 20STCV32139 Hearing Date: August 1, 2022 Dept: 15
[TENTATIVE] ORDER RE MOTIONS IN LIMINE
Plaintiffs’ MIL No. 1
Plaintiffs
seek to exclude evidence about the decedent’s smoking history as irrelevant and
prejudicial. Defendants argue the
evidence is relevant to his life expectancy and damages, and that their experts
will testify the smoking history reduced his life expectancy. Defendants also argue it is relevant to Plaintiffs’
failure to warn claims because it shows the decedent would not have followed
warnings because he did not follow warnings about smoking.
The
motion is granted as to arguments that smoking evidence is relevant to the
failure to warn claims. Defendants did
not show that smoking cigarettes (which are highly addictive) is similar to
working with asbestos-containing products (unlikely to be highly addictive),
such that the evidence has any probative value regarding whether the decedent
would have followed warnings about products containing asbestos.
The
motion is denied as to life expectancy and damages. The evidence is relevant to those issues.
The
motion is granted in part and denied in part.
Plaintiffs’ MIL No. 2
Plaintiffs
move to exclude evidence of or reference to their expert’s religious practices
and beliefs, his association with the BWell Clinic, and prior court orders
about him as irrelevant and unduly prejudicial.
The
expert’s religious practices and beliefs are irrelevant to this case and unduly
prejudicial. If the expert testifies
about providing the medical treatments based on the writings of L. Ron Hubbard,
then he may be cross-examined about the basis for those medical treatments. Likewise, the expert’s past association with
BWell Clinic, which does not appear to have treated for asbestos exposure, is
not relevant to the expert’s opinions in this case and will cause an undue amount
trial time and jury confusion.
Plaintiffs
attach the following court decisions regarding the expert’s prior opinions as
Exhibit C: (1) a 2010 case from a federal
court applying Ohio law and Daubert about air emissions from a refinery;
(2) a 2011 Sixth Circuit case applying Daubert concerning opinions on
exposure to benzene, (3) a 2005 case from a federal court in Louisiana applying
Louisiana law and Daubert about exposure to a glycol, (4) a 2009 federal
case from Mississippi about pancreatic cancer caused by a chemical agent applying
Daubert, (5) a 2007 case from Texas about exposure to creosote applying
Texas law, (6) a 2003 federal case from Hawaii about chemical fumigants
applying Daubert, (7) a 2008 decision from Los Angeles Superior Court about
toxic mold, mildew and fungus, (8) a 2007 decision from New Mexico state court about
chemical exposure causing lupus, and (9) a 2007 hearing transcript from a New
Mexico state court hearing about some kind of chemical exposure. Only one case applied California law. No case involved asbestos. Therefore, these cases involved different law
and different facts. Allowing
examination about these decisions will require significant trial time and
confuse the jury, as the parties will spend substantial time explaining the
underlying facts of those cases and the expert’s analysis in those cases to try
to establish that the situations in these cases were similar or distinct from
the situation here.
The
motion is granted.
Plaintiffs’ MIL No. 3
Plaintiffs
move to preclude evidence about the contents of the complaint and former
defendants no longer in this case.
The request to exclude
mention of the contents of the complaint is impossible – the trial is about the
allegations in the complaint. Therefore,
this part of the motion is denied. If a
defendant improperly refers to the complaint, Plaintiffs should object at that
time.
That Plaintiff sued other
defendants who are no longer part of the case is not relevant, but the
liability of other former defendants may be relevant. Pursuant to the July 8, 2022 CMO, a motion to
exclude evidence about the liability of tortfeasors not present at trial is
deemed made and denied without prejudice to a contemporaneous objection at
trial. Plaintiffs did not show good
cause to depart from this order.
Therefore this part of the motion is denied without prejudice to a
contemporaneous objection at trial.
The motion is denied without
prejudice to a contemporaneous objection at trial.
Plaintiffs’ MIL No. 4
Plaintiffs seek to
exclude evidence of and reference to exposures to the products of former
defendants. Pursuant to the July 8, 2022
CMO, a motion to exclude evidence about the liability of tortfeasors not
present at trial is deemed made and denied without prejudice to a
contemporaneous objection at trial.
Plaintiff did not show good cause to depart from this order.
Therefore the motion is
denied without prejudice to a contemporaneous objection at trial.
Plaintiffs’ MIL No. 5
This motion appears to
ask that any PMK witness be excluded from testifying about information for
which that person lacks personal knowledge.
Plaintiffs’ MIL No. 5 does not appear in the court file. This motion does not appear to identify any
specific testimony at issue, making the motion too vague. A party should object at trial if the party
believe the witness has no foundation to answer the question.
The motion is denied
without prejudice to a contemporaneous objection at trial.
Defendant’s MIL Nos. 1, 14
Defendants
Ultramar, Inc. and Metalclad move to bifurcate punitive damages. The motion is granted.
Defendant’s MIL No. 2
Defendant
Ultramar, Inc. moves for an order requiring 48-hour notice of exhibits and
witnesses. This is not a proper motion
in limine. The parties should raise
trial procedure issues with the trial court.
The motion is denied.
Defendant’s MIL No. 3
Defendant
Ultramar, Inc. moves to exclude testimony from Plaintiffs’ expert Charles Ay
about (1) the decedent’s work at the Ultramar Wilmington Refinery in 1995, (2)
any insulation, gaskets or packing at the refinery containing asbestos in 1995,
(3) the decedent’s exposure to asbestos at the refinery in 1995 on the ground,
and (4) his asbestosis.
Defendant argues there is
no evidence about the decedent’s work in 1995 and therefore no foundation for
Ay’s opinions. In the ruling on
Ultramar’s motion for summary judgment, the Court explained that Plaintiffs had
failed to submit any evidence, either in their discovery responses or in
opposition to the motion, establishing the work the decedent did at the
refinery in 1995. Likewise, in
opposition to this motion, Plaintiffs do not identify any evidence about the
work decedent did in 1995 while working at the refinery. Therefore Ay’s opinion that the decedent was
exposed to asbestos in 1995 while working at the refinery is based on
speculation unsupported by any evidence.
Defendant
argues Ay’s asbestosis is irrelevant, prejudicial and will confuse issues and
mislead the jury. Plaintiffs argue it
goes to his credibility as a witness. Plaintiffs
do not show that is relevant to the issues in dispute in this case. Rather than establishing Ay’s credibility,
evidence of his disease is more likely to be prejudicial because the jury will
sympathize with Ay.
The
motion is granted.
Defendant’s MIL No. 4
Defendant
Ultramar, Inc. moves to exclude evidence of past medical expenses except those
actually paid. Pursuant to the July 8,
2022 CMO, this motion in limine is deemed made and denied without prejudice to
a contemporaneous objection at trial.
Defendant has not shown good cause to depart from that order.
Therefore, the motion is
denied without prejudice to a contemporaneous objection at trial.
Defendant’s MIL No. 5
Defendant
Ultramar, Inc. moves to exclude references to asbestos at the Champlin Refinery
before 1988 when Ultramar acquired the refinery. In denying Defendant’s motion for summary
judgment, the Court ruled that Defendant’s assumption of asbestos liabilities
when it acquired the refinery was an issue for trial. Therefore, evidence of asbestos before 1988
is relevant.
The
motion is denied.
Defendant’s MIL No. 6
This
motion appears to be made by Familian Corp. to exclude evidence and argument
that a supplier has a duty to inspect or test and is held to the knowledge of
an expert. This motion does not appear
in the court file. Pursuant to the July
8, 2022 CMO, this motion in limine is deemed made and denied without prejudice
to a contemporaneous objection at trial.
Defendant has not shown good cause to depart from that order.
Therefore, the motion is
denied without prejudice to a contemporaneous objection at trial.
Defendant’s MIL No. 7
This motion appears to be
made by Familian Corp. to exclude evidence and argument that a defendant had a
post-sale duty to warn. This motion does
not appear in the court file. Pursuant
to the July 8, 2022 CMO, this motion in limine is deemed made and denied
without prejudice to a contemporaneous objection at trial. Defendant has not shown good cause to depart
from that order.
Therefore, the motion is
denied without prejudice to a contemporaneous objection at trial.
Defendant’s MIL No. 8
Defendant
Metalclad seeks to exclude expert testimony about whether exposure was a
substantial factor in cause a disease.
Pursuant to the July 8, 2022 CMO, this motion in limine is deemed made
and denied without prejudice to a contemporaneous objection at trial. Defendant has not shown good cause to depart
from that order.
Therefore, the motion is
denied without prejudice to a contemporaneous objection at trial.
Defendant’s MIL No. 9
Defendant
Metalclad seeks an order that strict products liability does not apply to a
contractor defendant. This is not a
proper motion in limine. It seeks to
adjudicate the second cause of action for strict liability in favor of
Defendant. The motion is denied.
Defendant’s MIL No. 10
Defendant
Metalclad seeks to exclude opinions by lay witnesses about whether products
contain asbestos. Pursuant to the July
8, 2022 CMO, this motion in limine is deemed made and denied without prejudice
to a contemporaneous objection at trial.
Defendant has not shown good cause to depart from that order.
Therefore, the motion is
denied without prejudice to a contemporaneous objection at trial.
Defendant’s MIL No. 11
Defendant
Metalclad seek to preclude argument that knowledge of asbestos-related trade
groups may be imputed to Defendant.
Pursuant to the July 8, 2022 CMO, this motion in limine is deemed made
and denied without prejudice to a contemporaneous objection at trial. Defendant has not shown good cause to depart
from that order.
Therefore, the motion is
denied without prejudice to a contemporaneous objection at trial.
Defendant’s MIL No. 12
Defendant
Metalclad moves to exclude evidence of EPA and OSHA commentary on the causal
connection between exposure to asbestos and the development of disease, as well
as the French government’s ban on chrysotile asbestos. Plaintiffs argue the motion is vague, and
that evidence of governmental actions is relevant to the defendants’ state of
knowledge.
Plaintiffs
did not show that there is any evidence any defendant was aware of the French
ban on chrysotile asbestos or the reasons why the French government banned
it. Allowing that evidence will consume
an undue amount of trial time exploring the bases for the French ban. The evidence would have little probative
value because it did not apply to work places in the United States.
The
motion to exclude evidence about domestic governmental actions 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 the French ban and otherwise denied without prejudice
to a contemporaneous objection at trial.
Defendant’s MIL No. 13
Defendant
Metalclad moves to exclude evidence of workers’ compensation claims. Pursuant to the July 8, 2022 CMO, this motion
in limine is deemed made and granted.
Plaintiff did not show good cause to depart from this order.
Therefore,
the motion is granted.
The
moving party is to give notice.