Judge: Laura A. Seigle, Case: 21STCV16240, Date: 2023-03-27 Tentative Ruling

Case Number: 21STCV16240    Hearing Date: March 27, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTIONS IN LIMINE

            Plaintiffs and Defendants should have been able to agree on a number of the motions because both sides seek to have some of the same evidence excluded.  A number of the motions are addressed by the July 8, 2022 CMO and therefore did not need to be filed.  Defendants used duplicative numbering, making the numbering system confusing.  In sum, the parties did not adequately meet and confer before filing 51 motions in limine.  This excessive number of motions could have been dramatically reduced, thereby saving attorney and court time, if the parties had adequately met and conferred.

Plaintiffs’ MIL No. 1

            Plaintiffs seek to exclude evidence of OSHA regulations regarding asbestos.  Defendants also seek to exclude evidence of OSAH regulations.  Thus it appears that the parties agree on this point.  The parties are to meet and confer on a stipulation. 

            The motion re industry guidelines is too vague, and in that regard the motion is denied without prejudice to objections at trial.

Plaintiffs’ MIL No. 2

            Plaintiffs move to exclude any reference to “any genetic condition that had no impact in contributing to Ms. Manns’ mesothelioma or life expectancy” as irrelevant and prejudicial.  This motion is too vague.  Plaintiffs do not identify the specific evidence they seek to exclude.

            The motion is denied without prejudice to objections at trial.

Plaintiffs’ MIL No. 3

            Plaintiffs move to exclude references to speculative causes of Debra Manns’ mesothelioma.  Pursuant to the July 8, 2022 CMO, motions to exclude speculative evidence are deemed made and denied.  Plaintiffs did not show good cause to depart from this order.

            The motion is denied without prejudice to objections at trial.

Plaintiffs’ MIL No. 4

            Plaintiffs seek to preclude questions and evidence asking the jury to use a “but for” test for causation rather than a “substantial factor” test for causation.  Pursuant to the July 8, 2022 CMO, this motion is deemed made and denied so long as the court intends to use CACI 435.  Plaintiffs did not show good cause to depart from this order.

            The motion is denied without prejudice to objections at trial, so long as the court intends to use CACI 435.

Plaintiffs’ MIL No. 5

            Plaintiffs seem to preclude defendants from characterizing themselves as mom and pop businesses because the defendants are large, international corporations.  This motion is too vague.  Defendants may briefly describe their businesses as background information, just as Plaintiffs are likely to give some background about their family.  If a defendant states it is a small business owned by one or two people when in fact it is a large, international corporation, Plaintiffs can cross-examine the defendant on that point and thereby undermine that defendant’s credibility in front of the jury.

            The motion is denied without prejudice to objections at trial.

Plaintiffs’ MIL No. 6

            No motion was filed.

Plaintiffs’ MIL No. 7

            Plaintiffs move to exclude evidence of features of the disputed products that are unrelated to the features at issue as irrelevant.  According to Plaintiffs, certain safety features are not relevant because they have nothing to do with asbestos exposure.  Because Defendants did not file an opposition, they did not show that the referenced safety features are at issue.

            Product safety features that are unrelated to asbestos exposure are not at issue in this case, would consume an undue amount of time, and would be confusing to the jury.  The motion is granted.

Defendants’ MIL No. 1

            Defendants move to bifurcate punitive damages.  The parties should have been able to agree to this without the filing of a motion because the court is required to grant this motion.

The motion is granted.

Defendants’ MIL No. 1

            See No. 3 below. 

Defendants’ MIL No. 2

            Kelly-Moore Paint Company, Inc. seeks to preclude all references to its Texas lawsuit against Union Carbide alleging failure to warn about the danger of asbestos.  The motion is granted regarding reference to the facts of the lawsuit and its resolution.  However, documents used in that case may also be relevant in this case.  That a particular document was used in that Texas case does not mean that document cannot be used in this case.

            The motion is granted in part and denied in part.

Defendants’ MIL No. 2

            See No. 39 below.

Defendants’ MIL No. 3

            The W.W. Henry Company moves to exclude all references to regulatory bans regarding asbestos.  Plaintiffs did not show that there is any evidence any defendant was aware of the foreign bans or why the foreign governments issued the bans.  Allowing that evidence will consume an undue amount of trial time exploring the bases for the foreign bans.  The evidence would have little probative value because it did not apply to workplaces 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 Defendants’ knowledge and notice. 

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

Defendants’ MIL No. 3

            Kelly-Moore moves to exclude a 1977 letter it sent to the CPSC in response to a request for comment regarding a proposed ban as protected by Civil Code section 47.  Plaintiffs did not file an opposition showing that the 1977 letter falls outside the protection of section 47.  Therefore, the motion is granted.

Defendants’ MIL No. 4

            Defendant Kelly-Moore moves to exclude evidence of products not at issue in this case, such as ceiling or spray texture.  Plaintiffs did not file an opposition.  Products that Plaintiffs do not contend exposed Debra Manns to asbestos are not relevant, will consume an undue amount of trial time, and will be confusing to the jury.

            The motion is granted.

Defendants’ MIL No. 4

            Defendant Edgewell Personal Care seeks to prevent any lay witness from testifying about dust levels and asbestos in the dust.  Pursuant to the July 8, 2022 CMO, this motion is deemed made and denied.  Defendant did not show good cause to depart from the order.

            The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 5

            Edgewell moves to exclude references to 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 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. 5

            See No. 39 below.

Defendants’ MIL No. 6

            See No. 39 below.

Defendants’ MIL No. 6

            See No. 21 below.

Defendants’ MIL No. 7

            Kelly-Moore moves to exclude reference to the absence of corporate representatives at trial.  Pursuant to the July 8, 2022 CMO, this motion is deemed made and granted.  Plaintiffs did not show good cause to depart from that order.

            The motion is granted.

Defendants’ MIL No. 7

            Morse Tec moves to exclude evidence of a proposed 1971 Illinois ban that never went into effect as hearsay and irrelevant.  The evidence may go to notice or knowledge.  Defendants can then cross-examine the witness about the fact that the proposed ban was never effective.

            The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 8

            See No. 15 below.

Defendants’ MIL No. 8

            Kelly-Moore seeks to exclude the deposition testimony of Herb Giffins taken in another case because it is hearsay and inadmissible under Berroteran.  The July 8, 2022 CMO sets forth the procedure for making such general hearsay objections to prior testimony.  The court already ruled on Kelly-Moore’s Berroteran objections to this transcript.

            Therefore, this motion is unnecessary and is taken off calendar.

Defendants’ MIL No. 9

            Kelly-Moore moves to exclude evidence of medical expenses other than those actually incurred.  Pursuant to the July 8, 2022 CMO, this motion is deemed made and denied.  Defendant did not show good cause to depart from this motion.

            The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 9

The W.W. Henry Company moves 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. 9

            Defendant Sunbeam moves to exclude certain photographs as irrelevant, unauthenticated, and hearsay.  Plaintiffs will need to establish the authenticity of the photographs before they reveal them to the jury.  If the photographs show the type of product Debra Manns used, they could be relevant.  Defendant cites no law that a photograph of a hairdryer is hearsay or is a statement made by a person. 

            The motion is denied without prejudice to objections at trial, subject to Plaintiffs first establishing the authenticity of the photographs at trial.

Defendants’ MIL No. 10

Defendant Amcord move to preclude evidence of working conditions at its facilities as irrelevant and unduly prejudicial because Debra Manns was never 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, 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. 11

Amcord moves to exclude any evidence of it lobbying activities.  The motion 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. 11

            The W.W. Henry Company moves to exclude evidence of its non-compliance with 1972 OSHA regulations about warning labels for asbestos because Plaintiffs were not employees of Defendant and the 1972 regulations did not impose any obligation on Defendant to label products it sold to Plaintiffs.  Plaintiffs also seek to exclude evidence of OSHA regulations.  Thus it appears that the parties agree on this point.  The parties are to meet and confer on a stipulation.

Defendants’ MIL No. 12

            Amcord moves to exclude evidence of a photograph as irrelevant, unauthenticated, and hearsay.  The photograph could be relevant as to the appearance of Amcord’s product.  Obviously, before any photograph can be shown to the jury, it must be authenticated.    Amcord does not explain how a photograph can be hearsay.  A photograph is not a statement of a person.  Amcord does not identify any specific testimony about the photograph that is hearsay.

            The motion is denied without prejudice to objections at trial, subject to Plaintiffs establishing the authenticity of the photograph at trial.

Defendants’ MIL No. 13

            Amcord seeks to exclude a March 12, 1974 memo about blue asbestos in gun plastic as irrelevant, prejudicial, and misleading.  Amcord says the reference to “blue asbestos” in the memo is to a brand name, not to a specific type of asbestos.  Plaintiffs dispute this and contend the reference to “blue asbestos” is not to a brand name.

If the memo is otherwise admissible (e.g., it is authenticated), then Amcord can have a witness explain that “blue asbestos” is a brand name, and Amcord can cross-examine any witness who contends that “blue asbestos” refers to some thing other than a brand name.  Plaintiffs can submit evidence that to the contrary, the reference is not to a brand name.  The jury will be able to understand the difference between a brand name and a specific type of asbestos, and the jury can decide who is correct.

            The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 14

Defendants move to exclude testimony and videos from William Longo and Richard Hatfield about work simulations because the simulations are not similar to Debra Manns’ 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.  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 Manns’ exposure conditions were different from a small sealed chamber.  At trial, Defendants can cross-examine the experts about the similarities and differences of Manns’ exposure to a small, sealed chamber and argue the jury should give the videos no weight because of the different conditions. 

            Defendants 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. 15

The W.W. Henry Company moves to exclude reference to a 1989 proposed EPA ban that never went into effect because it was invalidated by the Fifth Circuit Court of Appeals as not supported by sufficient evidence.  This evidence may go to notice or knowledge.  Defendants can cross-examine the witness about the fact that the proposed ban was never effective and was invalidated by the court for lack of evidence.

The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 16

            Honeywell moves to exclude a letter and a memo from E.A. Martin because they cannot be authenticated, are hearsay, are not relevant, and are more prejudicial than probative.  The documents are unsigned, and Defendant states there is no evidence about who wrote or received them.  The court cannot determine at this point that no witness will be able to authenticate the documents.  If Plaintiffs seek to introduce unauthenticated documents into evidence at trial, Defendant should object then.

The document could be relevant to Defendants’ notice or knowledge of the dangers of asbestos.  If Plaintiffs seek to use the documents to show notice, the documents may not be hearsay if they are not offered for the truth of the matter asserted (assuming they can be authenticated).

The last paragraph of the letter is more prejudicial than probative.  If Plaintiffs authenticate the letter and establish its relevance and non-hearsay use at trial, the last paragraph of the letter is to be redacted before the letter is admitted.

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

Defendants’ MIL No. 17

            Honeywell moves to exclude evidence relating to the Friction Materials Standards Institute as unauthenticated, irrelevant, and hearsay.  This motion is too vague as it fails to identify any specific document or testimony to be excluded.  The court cannot at this time determine whether Plaintiffs will be able to authenticate yet-unspecified exhibits at trial.  Also, the court cannot predict how the unspecified documents might be used at trial.  If they are used for notice and knowledge, they may not be offered for a hearsay purpose. 

            The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 18

Honeywell moves to exclude evidence of a 1986 EPA guidance about asbestos as hearsay, unscientific, and unduly prejudicial.  The document could be relevant to Defendants’ notice of the dangers of asbestos, a non-hearsay use.  Also, the contents of the document may be admissible at trial via an expert if the expert establishes that it is general background information of the type relied upon by experts in the field.  That the document was based on unscientific sources can be the subject of cross-examination and goes to the weight to be given the document and whether an expert can establish it is the type of information relied upon by experts.

            The motion is denied without prejudice to a contemporaneous objection at trial.

Defendants’ MIL No. 19

            See No. 15 above.

Defendants’ MIL No. 20

            Honeywell moves to exclude all references to any statement by OSHA, the EPA or any government agency, and all references to any standards or regulations by those agencies except those that enacted exposure standards, warning requirements, and air monitoring.  This motion is very vague, overbroad and confusing. 

            The motion is denied.

Defendants’ MIL No. 21

            Honeywell moves to exclude all evidence of any Bendix knowledge or conduct after Plaintiff’s last date of exposure.  This motion is too vague.  Also, pursuant to the July 8, 2022 CMO, a motion to exclude evidence of a post-sale duty to warn and failure to conduct a recall or post-sale warning campaign is deemed made and denied so long as there is an operative negligence cause of action.  Defendant did not show good cause to depart from this order.

            The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 22

Honeywell moves to exclude evidence of workers’ compensation claims.  If notice is contested, some evidence of the claims may be relevant.  However, the details of workers’ compensation actions would be unduly prejudicial, time-consuming, and confusing to the jury.  It is for the trial judge to determine how much is too much.  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 objection at trial.

Defendants’ MIL No. 23

Defendant Hennessy moves to exclude the Don’t Blow It video and any evidence referring to the video as hearsay, unscientific, and prejudicial.  The video may be admissible at trial via an expert if the expert establishes that it is general background information of the type relied upon by experts in the field.  The claim that the video is unscientific can be the subject of cross-examination and goes to the weight to be given the video.  Defendants contend the EPA updated its guidance in 2007 so the video is outdated.  That too can be the subject of cross-examination.

Defendants argue the video’s references to an article and wives and children lack foundation.  That section of the video is irrelevant because there is no claim in this case about injury to wives and children.  Similarly, smoking does not seem to be an issue in this case.  If Plaintiffs establish that the video is admissible, the portion of the video about the magazine article, smoking, and wives and children are to be redacted.

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

Defendants’ MIL No. 24

            Hennessy moves to exclude evidence that its predecessor sold brake grinding machines that had warning labels on them outside the United States in the 1990s.  Hennessy states these sales occurred after Debra Manns’ exposure.  Plaintiffs argue that post-exposure warnings are admissible to prove a product defect in a strict liability action.  The evidence could be relevant to prove a product defect, even if the warnings existed after the last exposure date.

            The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 25

            Hennessy moves to exclude a 1986 study about asbestos generated from use of Defendant’s machines because an insurance company did the study and evidence of defendant’s liability insurance is not admissible, and the report was after the exposure date.  If the study states that Hennessy is an insured, such references are to be redacted.  The study may be relevant to notice and knowledge and failure to recall a defective product, even if it was issued after the last date of exposure.

            The motion is denied without prejudice to objections at trial and subject to the redaction of references to Hennesy being insured.

Defendants’ MIL No. 26

            Hennessy moves to exclude a 1978 insurance industry survey because an insurance company did the survey and it is prejudicial and cumulative.  If the survey states that Hennessy is an insured, such references are to be redacted.  The survey may be relevant to notice and knowledge. 

            The motion is denied without prejudice to objections at trial and subject to the redaction of references to Hennesy being insured.

Defendants’ MIL Nos. 27-35

            No motions were filed.

Defendants’ MIL No. 36

            Calaveras Asbestos moves to exclude evidence of conditions at its mine and facilities.  See No. 10 above.

Defendants’ MIL No. 37

            Pfizer moves to exclude evidence about outdated regulations, policies, actions, and decisions by OSHA and any government agency.  This motion is too vague and overbroad.

            Pfizer mentions OSHA regulations changing between 1972 and 1992 and wants to exclude all pre-1992 OSHA regulations.  Plaintiffs too seek to exclude evidence of OSHA regulations regarding asbestos.  Thus it appears that the parties agree on this point.  The parties are to meet and confer on a stipulation.

            Pfizer moves to exclude all references to the IWGACP formed in 2018 and its 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.  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. 38

            Pfizer moves to exclude reference to talcum powder causing ovarian cancer.  This case is not ovarian cancer.  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. 39

Defendants moves to exclude arguments that every exposure is a substantial factor in causing disease 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, 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.

The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 40

            Pfizer seeks to exclude all evidence about talc from mines not used in any products Debra Manns used and evidence about other products she did not use.  This motion is too vague.  It does not identify any specific testimony, opinion, or document to be excluded.  Also, evidence about talc from that mine and talc used in other products could be the type of evidence relied on by experts.  For example, that evidence could appear in scientific articles relied upon by experts.  The experts can be cross-examined about that reliance, and that they relied on such information goes to the weight to be given their opinions.

            The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 41

            Pfizer moves to exclude the term “asbestos-containing product,” “asbestos-containing material” and products “containing asbestos.”  These are common terms in asbestos cases and are not inflammatory or prejudicial.  This case is about the allegation that Pfizer’s product contained asbestos, so to prevent the attorneys from saying that Pfizer’s talc contained asbestos would prevent them from arguing Plaintiffs’ case against Pfizer.  

            The motion is denied.

Defendants’ MIL Nos. 42-57

            No motions were filed.

Defendants’ MIL No. 58

            Pfizer moves to exclude the deposition testimony of Willis Hamilton from another case because it is hearsay and inadmissible under Berroteran.  The July 8, 2022 CMO sets forth the procedure for making such general hearsay objections to prior testimony.  During that process, Pfizer objected to other prior testimony but not to the Willis Hamilton transcript.  Pfizer does not show good cause for failing to object to this transcript before the deadline in the July 8, 2022 CMO.  It is too late now to make those general hearsay objections.

            The motion is denied.

            The moving party is to give notice.