Judge: Laura A. Seigle, Case: 21STCV05513, Date: 2023-03-08 Tentative Ruling

Case Number: 21STCV05513    Hearing Date: March 8, 2023    Dept: 15

[TENTATIVE] ORDER RE PRE-TRIAL MOTIONS

            The parties previously went to trial in December 2021, but there was a mistrial when Plaintiff Mae Moore died.  Plaintiffs filed a third amended complaint on February 18, 2022, naming just eight defendants, three of which are in bankruptcy.  On October 6, 2022, the court continued the October 10, 2022 trial to November 14, 2022, due to a conflicting trial.  On November 14, 2022, the court continued the trial to March 20, 2023 to allow the parties to participate in a mandatory settlement conference.  Three defendants remain for trial.

            The parties have filed miscellaneous pre-trial motions.

Defendant Chanel, Inc.’s Motion for Time Limits

            Defendant moves for a limit of 8 weeks of trial.  That is too long for a case with only three defendants.  In addition, if this case requires more than 100 hours of trial testimony, the parties will need to prepare long cause notebooks pursuant to the directive of Department 1 and according to the directions for long cause notebooks on the Los Angeles Superior Court’s website.

            The parties are to meet and confer on a reasonable amount of trial less than 100 hours of testimony, be prepared to discuss the relevance of each witness and exhibit at the Final Status Conference, and be prepared to justify the parties’ trial estimates.

Defendant Chanel, Inc.’s Motion to Exclude Misconduct

            Defendant moves to preclude Plaintiffs’ counsel from (1) arguing that tens of thousands of people have died from talc, (2) arguing that asbestos is like cockroaches, (3) arguing that Defendants have not accepted fault, (4) from violating the Golden Rule, and (5) referring to a HBO mini-series.

            Regarding the argument that tens of thousands of people have died from talc, the motion is too vague.  If Plaintiffs have evidence that tens of thousands of people have died from mesothelioma caused by asbestos contained in talc, that evidence could be relevant to notice or knowledge and causation.  If Plaintiffs then fail to proof up this argument, Defendants can comment in closing that Plaintiffs did not show any evidence of that argument.  Evidence and argument about ovarian cancer are not relevant.  (If a defendant opens the door on this point, which is what Plaintiffs claim happened in the Chapman trial, that is another matter.)  If Plaintiffs plan to argue that Defendants have caused tens of thousands of people to die from mesothelioma caused by asbestos in talc, Plaintiffs are to provide an offer of proof.  In sum, the motion to preclude the argument that tens of thousands of people have died from talc is denied.  The motion to preclude evidence and argument about ovarian cancer is granted.  The motion to preclude argument that Defendants themselves have cause tens of thousands of death from mesothelioma is granted subject to an offer of proof.

Comparing asbestos to cockroaches is more prejudicial than probative.  The motion is granted.

Arguing that Defendants have not accepted fault is more prejudicial than probative and misstates the law.  Plaintiffs have the burden of proving Defendants are at fault.  Defendants have no legal obligation to accept fault at this point.  The motion is granted as to argument that Defendants have failed to accept fault.

Pursuant to the July 8, 2022 CMO, the motion to preclude counsel from violating the Golden Rule is deemed made and granted.  Plaintiffs did not show good cause to depart from this order.  Therefore, the motion is granted.

            The HBO mini-series is irrelevant.  The motion is granted in that regard.

            To the extent the motion seeks to exclude any other evidence or argument, the motion is too vague and is denied.

Defendant Chanel, Inc.’s Motion to Exclude Ronald Gordon

            Defendant moves to exclude the testimony of Plaintiffs’ expert Ronald Gordon as unscientific, speculative, and based on unreliable methodology. 

            First, Defendant argues Gordon’s opinion in this case abut the length of asbestos fibers contradicts his prior published work.  Defendant contends Gordon “seeks to opine that the tremolite . . . constitutes an asbestos fiber, even though its length was less than five micrometers,” which conflicts with his prior definition of fibers being at least five microns.  (Motion at p. 14.)  Defendant notes that he failed to document one tremolite bundle.  (Motion at p. 15.)  Plaintiffs state Gordon is not offering opinions about the types and lengths of asbestos fibers.  (Opposition at p. 9.)  Defendant does not explain how the failure to document one tremolite bundle impacts Gordon’s opinion, especially because Plaintiffs’ expert also found the presence of one tremolite asbestos fiber.  (Gamble Decl., Ex. 19 at p. 3.)  In any event, this is a ground for cross-examination to show the jury should give Gordon’s conclusions little weight because his opinion contradicts his prior opinions.

            Next Defendant argues Gordon’s work cannot be replicated because he did not document aspects of his process.  (Motion at p. 18.)  Defendant points out errors in Gordon’s report, but does not identify the information that is missing that supposedly makes his process impossible to replicate.  Errors in a report are not sufficient to exclude an entire opinion unless the error invalidates the opinion.  Defendant did not show that.  Defendant can cross-examine Gordon at trial about the errors in the report. 

            Defendant argues Gordon did not document how long he let the EDS calibrate before classifying particles as tremolite and anthophyllite.  (Motion at p. 20.)  Defendant also argues Gordon did not remember the tilt of his microscope, which prevents replication of his analysis.  (Motion at p. 21.)  Again Defendant does not explain why that this is important or invalidates Gordon’s conclusions that tremolite and anthophyllite fibers were present, especially because its own expert also found tremolite and anthophyllite fibers.  (Gamble Decl., Ex. 19 at p. 3.) 

            Defendant argues Gordon failed to produce images of the fibers.  (Motion at pp. 21-22.)  Plaintiffs state Gordon had problems printing from the microscope but Defendant’s counsel had the corrected images.  (Opposition at pp. 11-12.)  Defendant does not explain why the corrected images did not solve the problem.

            In sum, Defendant did not show that these issues make Gordon’s ultimate conclusion about the presence of tremolite and anthophyllite unreliable.

            Finally, Defendant argues the Gordon’s opinion should be excluded because the process of transporting tissue samples damaged the samples.  (Motion at p. 22.)  Plaintiffs argue Defendant’s expert did not have problems analyzing the tissue samples after Gordon’s analysis.  (Opposition at p. 7; Gamble Decl., Ex. 20 at p. 76.)  Defendants did not show that any shipping problems made the tissue untestable.

            The motion is denied.