Judge: Laura A. Seigle, Case: 20STV24355, Date: 2022-09-06 Tentative Ruling

Case Number: 20STV24355    Hearing Date: September 6, 2022    Dept: 15

[TENTATIVE] ORDER RE MOTIONS IN LIMINE

Plaintiffs’ MIL Nos. 1, 2

            Plaintiffs move to exclude evidence that the FDA has found talc to be safe and that cosmetic talc does not contain asbestos, based on the ground that the FDA has no regulatory authority over cosmetic talc.  FDA determinations might be the type of information experts rely on.  If an expert establishes that this is the type of background information relied upon by experts, the evidence may be relevant and may be admissible even if hearsay. 

Plaintiffs also state FDA has never determined talc is safe.  If there is no evidence the FDA has found talc to be safe, then there is nothing to exclude.  If a party in opening statement refers to evidence that does not exist, the other side can point out to the jury that the party promised to show evidence on an issue and then failed to deliver on that promise at trial. 

Plaintiffs argue evidence of GRAS should be excluded because this is not a food case.  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 are concerned about an FDA survey in 2009-2010, which Plaintiffs contend is irrelevant because it addressed talc from different mines than the talc at issue here.  This survey might be the type of material experts rely on.  If an expert is relying on this survey, Plaintiffs can cross-examine the expert about the source of the talc and argue to the jury that it should not give the survey any weight.

            The motions are denied without prejudice to objections at trial.

Plaintiffs’ MIL No. 3

Plaintiffs move to exclude evidence about regulatory agencies’ workplace asbestos exposure limits as irrelevant and misleading.  This is the type of material an expert may rely on, and it may be admissible if an expert proves it is the type of information relied upon by experts in the field.  If an expert relies on workplace exposure limits, the other parties can cross-examine the expert about the difference between workplace exposure and cosmetic use and argue the jury should give the exposure limits no weight.

            The motion is denied without prejudice to objections at trial.

Plaintiffs’ MIL No. 4

Plaintiffs move to exclude argument that everyone would have mesothelioma if talc was not safe.  This is a motion about causation and how much exposure is necessary before a person develops mesothelioma.  Pursuant to the July 8, 2022 CMO, motions about causation are deemed made and denied without prejudice to contemporaneous objections at trial.

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

Plaintiffs’ MIL No. 5

Plaintiffs seek to exclude evidence that any person other than plaintiff used talcum powder as irrelevant and confusing.  This motion is too vague.  The Court cannot predict how this issue could arise at trial.  The motion is denied without prejudice to an objection at trial.

Plaintiffs’ MIL No. 6

Plaintiffs seek to exclude evidence of a procedure called talc pleurodesis as not relevant to causation and irrelevant, prejudicial, and confusing to the jury.  If Plaintiff had this procedure, the motion is denied without prejudice to an objection at trial.  If Plaintiff did not have this procedure, the motion is granted as the evidence would require an undue amount of trial time and confusing medical evidence explaining the purposes of the procedure and when and how it is used.

Plaintiffs’ MIL No. 7

Plaintiffs move to exclude evidence of talc mines not at issue in this case as irrelevant and more prejudicial than probative.  This motion is too vague.  Plaintiffs do not identify specific evidence or testimony by any particular witness that they wish to exclude. 

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

Plaintiffs’ MIL No. 8

Plaintiffs move to exclude two papers by Victor Roggli because the papers do not involve cosmetic talc.  The papers themselves may not be admissible unless an expert shows they are the type of background information relied upon by experts in the field, but an expert might rely on the papers.  That the papers do not involve cosmetic talc goes to the weight to be given opinions based on those papers.  Plaintiffs can cross-examine any witness who relies on those papers about the fact that this case concerns cosmetic talc and the papers did not examine cosmetic talc.  If a party seeks to admit the papers, Plaintiffs should object at that time.

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

Plaintiffs’ MIL No. 9

            No motion was filed.

Plaintiffs’ MIL No. 10

Plaintiffs seek to exclude the complaint, the preliminary fact sheet, and the fact that other defendants were sued.  Pursuant to the July 8, 2022 CMO, this motion is deemed made and granted “but such order does not affect any allocation of fault under Proposition 51.”  Defendant did not show good cause to depart from this order.

            Therefore the motion is granted but this order does not affect any allocation of fault under Proposition 51.

Plaintiffs’ MIL No. 11

            This motion seeks to exclude any reference to any orders or rulings in other cases excluding or limiting the testimony of Plaintiff’s experts.  This motion is too vague.  If it seeks to exclude exhibits consisting of orders from other courts, Plaintiffs should object at trial if another party seeks to admit such a document.  If the motion seeks to preclude questions to the expert about whether other courts have limited or excluded the expert’s testimony in other cases, the Court cannot determine before trial whether such a question is proper.  For example, the questions could be proper for impeachment purposes if the expert testifies that no court has ever limited the expert’s testimony. 

            The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 1

            No motion was filed.

Defendants’ MIL No. 2

            No motion was filed.

Defendants’ MIL No. 3

            Defendants move to exclude documents and testimony from the corporate representatives of other defendants who have been dismissed.  Defendants argue Plaintiff will attempt to use this evidence to impute knowledge to the remaining Defendants.

This motion is too vague.  If the evidence from other defendants is otherwise admissible (e.g., Plaintiffs can establish its authenticity and it is not subject to the hearsay rule), the evidence may be relevant to showing general knowledge held by members of the industry.  Further, the evidence could include communications that the remaining defendants sent or received.  Because Defendants did not identify any specific piece of evidence to be excluded, it is impossible to determine potential relevance.

            The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 4

Defendants seek to exclude all references to Colgate except as successor-in-interest to Mennen because Plaintiffs dismissed Colgate.  This is too vague.  For example, Colgate could be referenced in background information relied upon by an expert.  If Plaintiffs refer to Colgate at trial, Defendants can object then.

            The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 5

Defendants move to exclude all references to the IWGACP formed in 2018 and its recommendations and paper in 2020 and 2021 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.  Defendant 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

            No motion was filed.

Defendants’ MIL No. 7

Defendants seek to exclude non-expert witness from testifying about the asbestos content in any product.  Pursuant to the July 8, 2022 CMO, this motion is deemed made and denied without prejudice to a contemporaneous objection at trial.  Defendants did not show good cause to depart from this order. 

            Therefore, this motion is denied without prejudice to an objection at trial. 

Defendants’ MIL No. 8

            No motion was filed.

Defendants’ MIL No. 9

            Defendants move to exclude any reference to Mennen products as “asbestos-containing” because Mennen did not intend its products to contain asbestos.  This motion is too vague.  For example, if an expert testifies that he or she concludes, “The Mennen product contained asbestos,” would that violate an order prohibiting use of the phrase “asbestos-containing” or would it be permissible because the order of the words were switched?  The phrase “asbestos-containing” is not inherently prejudicial or derogatory.  Rather it goes to the heart of a disputed issue – did the products contain asbestos?

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

Defendants’ MIL No. 10

Defendants seek to exclude evidence about other lawsuits relating to Colgate, Mennen, and talcum powder.  This motion is too vague.  Parties typically designate testimony from transcripts from other cases.  The motion would preclude such designations.

            The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 11

            No motion was filed.

Defendants’ MIL No. 12

Defendants seek to exclude a paper written by Plaintiff’s expert because the expert refused to answer questions about the paper and it was created for litigation.  That the expert wrote the paper as part of litigation goes to the author’s potential bias and the weight for the jury to give to the article.

            If the expert refused to answer questions about the paper at her deposition, Plaintiffs should have met and conferred, held an IDC, and then if the matter was not resolved, filed a motion to compel further responses.  Pursuant to the July 8, 2022 CMO, a motion to exclude evidence not disclosed in discovery is deemed made and denied without prejudice to an objection at trial. 

            Plaintiffs argue the paper ignores other cases and is selective about the information it uses.  That is a matter for cross-examination and goes to the weight to be given the paper and opinions based on the paper.

            The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 13

            Defendants seek to exclude evidence about Johnson & Johnson’s recall of baby powder in 2019 and discontinued sales in 2020 as irrelevant, unduly prejudicial, and confusing.  Plaintiffs dismissed Johnson & Johnson from this case.  These events occurred after the alleged exposure here, and therefore these events have little probative value.  Allowing the evidence would result in much trial time focusing on Johnson & Johnson, which is no longer a party, and the reasons for its actions.

            The motion is granted.

The moving party is to give notice.