Judge: Laura A. Seigle, Case: 21STCV22952, Date: 2024-02-13 Tentative Ruling

Case Number: 21STCV22952    Hearing Date: February 13, 2024    Dept: 15

[TENTATIVE] ORDER RE MOTIONS IN LIMINE

Plaintiffs’ MIL No. 1

This motion seeks to exclude evidence that cosmetic talc is FDA-approved because FDA does not regulate cosmetic talc and has not determined talc is safe.  This motion is too vague.  It does not identify specific documents or expert testimony to be excluded.  The motion is denied without prejudice to objections at trial.

Plaintiffs’ MIL No. 2

Plaintiffs move to exclude statements to the effect that everyone would have mesothelioma if cosmetic talcum powder caused the disease.  This motion is too vague.  In addition, pursuant to the July 8, 2022 CMO, motions to exclude evidence and arguments about causation 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.

Plaintiffs’ MIL No. 3

Plaintiffs seek to exclude evidence that other witnesses and attorneys 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. 4

            Plaintiffs seek to preclude Johnson & Johnson from referring to the “good people” at Johnson & Johnson as prejudicial.  If Plaintiffs are seeking to exclude the term “good people,” that is a common phrase and not inherently prejudicial.  Otherwise, the motion is too vague.

            The motion also seeks to preclude attacks against Plaintiffs’ counsel.  This motion is deemed made and granted pursuant to the July 8, 2022 CMO.

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

Plaintiffs’ MIL No. 5

Plaintiff moves to exclude evidence that other defendants were sued but are not at trial and the contents of the complaint as irrelevant and prejudicial.  Defendants state they do not oppose.  Therefore, they are to agree to a stipulation.

Plaintiffs’ MIL No. 6

            Plaintiffs move to exclude evidence that Plaintiff Rochelle Krich’s family members, in particular her father, smoked as irrelevant and prejudicial.  Second-hand smoke could be relevant to Plaintiff’s life expectancy, if an expert establishes that.  The motion is denied without prejudice to objections at trial.

Plaintiffs’ MIL No. 7

Plaintiffs move to exclude references to the federal litigation Bell v. American International Industries, Inc. and a workers compensation claim filed by Betty Bell as not relevant and prejudicial.

The findings and conclusions in the Bell v. American International Industries decision are not admissible because the unpublished federal district court’s decision has no preclusive effect in California state court.  Likewise, the workers compensation decision has no preclusive effect here.  Allowing evidence of those decisions will likely confuse the jury and lead them to believe those decisions have conclusively established the issues.  Also, the parties would spend time explaining the background of the federal district court case and workers compensation decision, Bell’s claims in those proceedings, and differences and similarities of those proceedings with this case.  This would consume an undue amount of time in an already overly long trial. 

However, the MIL seeks to exclude all evidence about the Bell case and the workers compensation claim, not just the final decisions in those matters.  That is too broad and vague.  For example there may be a deposition from the Bell case that a party wants to use in this case.  The fact that the deposition took place in the Bell case should not, alone, make it inadmissible.

            The motion is granted in part as to the decisions in the Bell v. American International Industries case and workers compensation case, and otherwise is denied without prejudice to objections at trial.

Plaintiffs’ MIL No. 8

Plaintiffs move to exclude evidence of or reference to court orders in other cases about Plaintiffs’ experts.  Court orders in other cases are more prejudicial than probative and will consume an undue amount of time explaining the context of those orders.  Also, court orders from other cases could reveal that defendants in this case have been sued in asbestos cases in the past, which is prejudicial.  Therefore, the motion is granted as to court orders from other cases.  However, if an expert testifies that his or her opinions have never been excluded, limited or criticized, testifies his or her opinions have always been accepted, or otherwise opens the door, the evidence may be admissible, especially for impeachment.  The motion is granted in part and denied in part subject to objections at trial.

Plaintiffs’ MIL No. 9

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. 10

Plaintiff moves to exclude evidence about Johnson & Johnson’s complaints against Jaqueline Moline, Theresa Emory, Richard Kradin, and John Maddox filed as part of the Johnson & Johnson bankruptcy, in which Johnson & Johnson alleged they had disparaged and made false statements about Johnson & Johnson’s products.  Because the federal court dismissed the bankruptcy case, there was no ruling on those complaints.

            The fact that Johnson & Johnson filed the complaints and alleged Moline, Emory, Kradin and Maddoxi made false and disparaging statements has no relevance.  Anyone can file a lawsuit claiming someone committed fraud, and the fact of the filing does not mean the fraud claims have any merit.  Allowing evidence that Johnson & Johnson filed the complaints will turn this trial into a trial of Johnson & Johnson’s fraud claims – Defendants will try to prove the Johnson & Johnson fraud claims were true, and Plaintiffs will try to prove they were false.  This will take an undue amount of time and will confuse the jury about what is really at issue in this case. 

            While Defendants can cross-examine Moline (assuming she is a witness) and any expert that relies on her articles about the bases for her statements in the articles, the motion is granted as to the Johnson & Johnson complaints filed in the bankruptcy case.

Plaintiffs’ MIL No. 11

            Defendants filed a non-opposition to this motion, but Plaintiffs did not file this motion.

Defendants’ MIL No. 1

            Defendants move 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.  The evidence, especially about ovarian cancer, 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. 2

Johnson & Johnson and LTL Management move to exclude references to other lawsuits involving J&J companies.  This motion is too vague.  For example, if Defendants dispute that they had knowledge about the hazards of asbestos, claims about injury from asbestos could be relevant to knowledge.  Therefore some references to prior cases may be relevant.  However, detailed evidence about the prior claims and cases will be more prejudicial than probative, confusing, and a waste of time.  It will be up to the trial court to decide how much is too much.

To the extent the motion seeks to exclude settlements, judgments and verdicts from other litigations, the motion is deemed made and granted pursuant to the July 8, 2022 CMO.  Plaintiffs did not show good cause to depart from that order. 

            Therefore, the motion is granted in part and denied in part without prejudice to objections at trial.

Defendants’ MIL No. 3

Defendants Johnson & Johnson and LTL Management move to exclude evidence that they discontinued sales of talc-based baby powder in 2020 as irrelevant, unduly prejudicial, and confusing.  If Defendants dispute that the baby powder products contained asbestos, the discontinuation of the sales could be relevant to proving that defect.  The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 4

            Defendants seek to exclude all media reports about talc litigation including three Reuters articles dated December 14, 2018, April 9, 2019, and December 3, 2019, as lacking foundation, hearsay, irrelevant and prejudicial. 

            The motion to exclude all media reports is too vague.

            Defendants argue the December 14, 2018 article is hearsay, misleading and prejudicial.  Plaintiffs argue it is an authorized statement by Defendant and is therefore admissible under Evidence Code sections 1220 and 1222.  There are at least two problems with this argument.  First, the vast majority of the 14-page article does not contain quotations attributed to Defendant’s authorized personnel.  Second, the statements by the reporter who wrote the article that a representative of Defendant made a particular comment are hearsay.  So even if the Defendant made authorized admissions to the reporter, the reporter’s statements in the article about those admissions are hearsay.  In other words, there are two levels of hearsay involved.

The article is also prejudicial because it contains personal stories about third parties getting sick, allegedly from Defendant’s products, as well as details about other litigations, including cases about ovarian cancer.  Details about third parties’ injuries and their allegations about Defendant are not relevant here.  The article will be confusing to the jury and consume an undue amount of time as Defendant seeks to refute all 14 pages of it at trial.

The article contains information based on out-of-court sources that are themselves hearsay.  In other words, it contains multiple levels of hearsay.

Plaintiffs argues the article is evidence that Defendant had notice of the hazards of its talcum powder products.  The article reports on several lawsuits against Defendant concerning its talcum powder.  Defendant had notice of these lawsuits well before the article was published, for example by being served with the lawsuits and participating in the lawsuits.  If the fact that Defendant was previously sued about its talcum powder is relevant and not prejudicial, there are much less prejudicial ways to establish that than via the article.

            Plaintiffs argue the December 14, 2018 article is admissible because Defendant used other media reports in other cases as evidence.  That is irrelevant to whether the December 14, 2018 article is admissible in this case.  Simply because different evidence was admitted in other cases does not mean this particular article should be admitted here.

            Defendant argues the April 9, 2019 and December 3, 2019 articles are hearsay, misleading, and prejudicial.  The April 9, 2019 article discusses Defendant’s marketing campaigns, numerous ovarian cancer and mesothelioma lawsuits against Defendant, and the events in other lawsuits against the company.  These topics are irrelevant in this litigation, would be unduly prejudicial, and would consume too much trial time.  The December 3, 2019 article discusses an FDA symposium of asbestos in talc.  Plaintiffs did not show why this article is relevant.  Also, both articles are hearsay, and Plaintiffs did not show an exception to the hearsay rule.

            The motion is granted as to the three Reuters articles and otherwise denied without prejudice to objections at trial.

            The moving party is to give notice.

Defendants’ MIL No. 5

Defendants Johnson & Johnson and LTL Management move to exclude all references to 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

Defendants move 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 the 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. 7

            Johnson & Johnson and LTL Management move to exclude statements that litigation forced Defendants to make public the story of asbestos in cosmetic talc.  Plaintiffs state they need to discuss other litigations against Defendants to show that Defendants have been concealing the truth.

            Except as discussed above, evidence of other lawsuits against Defendants regarding talc will be time consuming and prejudicial.  It will result in spending time at trial about how and why Defendants acted the way it did in the other lawsuits.  This will waste time and result in a re-litigation of the previous lawsuits.  Plaintiffs can present evidence of concealment without delving into the other lawsuits.  The motion is granted.

Defendants’ MIL No. 8

            Johnson & Johnson and LTL Management move to exclude an article titled “Asbestos in Commercial Talcum Powder as a Cause of Mesothelioma in Women” by Gordon, Millette, and Fitzgerald as hearsay, based on improper data, and unreliable. 

An expert may rely on hearsay and tell the jury in general terms that he or she did so.  If an expert testifying in this case establishes that this article is the type of background information relied upon by experts in the field, the evidence may be relevant and admissible even if hearsay.  (People v. Veamatahau (2020) 9 Cal.5th 16, 22.)  Defendants did not show that the article is based on data lacking foundation or an unreliable method.  Defendants can cross-examine any expert who relies on this article about these points.

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

Defendants’ MIL No. 9

Johnson & Johnson and LTL Management seek to exclude an article written by Dr. Jacqueline Moline. 

The articles is 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 paper is the type of general background information relied upon by experts in the field or the document is otherwise admissible.  That Moline wrote the article as part of litigation goes to the author’s potential bias and the weight for the jury to give to the article. 

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

            Defendants argue no expert can reasonably rely on the article.  That cannot be determined until the expert testifies and explains why the expert believes the article is reliable.

            Defendants argue Moline refuses to answer questions about her article.  However, Defendants did not show they subpoenaed Moline for a deposition and she refused to answer questions in this case.  If she is a witness in this trial and refuses to answer questions at trial, Defendants can seek object or seek to have her testimony stricken at that time.

            The motion is granted in part as to the specific contents of the article 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.

            The moving party is to give notice.

Defendants’ MIL No. 10

            Johnson & Johnson and LTL Management move to exclude all references to a paper authored by Teresa Emory, John Maddox, and Richard Kradin.  The paper is hearsay, but an expert can rely on hearsay and tell the jury generally about the hearsay.  The expert cannot tell the jury the contents of the hearsay unless the expert first establishes that the paper is the type of general background information relied upon by experts in the field or is otherwise admissible. 

            Defendants argue the paper should be excluded because the authors regularly testify for plaintiffs in talc cases.  That may be a basis to argue to the jury that they should view the article with suspicion and give it no weight, but it is not a legal ground for excluding expert testimony (if that were the law, many experts in asbestos cases would automatically be excluded). 

            Defendants argue that the paper does not disclose the source of its data and the authors refuse to turn over their data.  However, Plaintiffs do not state that they sought the data in discovery in this case. 

            Defendants argue the paper contains false, one-sided, cherry-picked data.  That is grounds for cross-examination and goes to the weight the jury should give the article.

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

Defendants’ MIL No. 11

            Johnson & Johnson and LTL Management move to exclude evidence that Alice Blount tested Defendants’ talc and found asbestos because she is not an expert in this case and her conclusions are unreliable. 

            Written reports and out-of-court statements by Blount about her testing of talc and the results are hearsay if offered for the truth of the matter asserted.  An expert designated and testifying in this case cannot tell the jury the contents of that hearsay unless the expert first establishes that the written or oral statements by Blount are the type of general background information relied upon by experts in the field or the statements are otherwise admissible.  However, an expert may rely on hearsay and tell the jury that he or she relied on the hearsay.

            Whether Blount’s work is reliable such that other experts in the field generally rely upon it as accurate must be established by a testifying expert in this case first before Blount’s statements are potentially admissible. 

            Plaintiffs argue Blount’s deposition testimony from a prior case is admissible.  Prior deposition testimony is to be handled pursuant to the procedures set forth in the July 8, 2022 CMO. 

            The motion is granted in part as to written and oral statements (other than prior deposition testimony, which is handled pursuant to the July 8, 2022 CMO) by Blount unless an expert establishes a basis for the admissibility of those statements at trial.  Otherwise the motion is denied without prejudice to objections at trial.

            The moving party is to give notice.

Defendants’ MIL No. 12

            Defendants move to exclude references to Plaintiff’s family members being Holocaust victims before she was born as irrelevant and prejudicial.  The Holocaust is not relevant to this case and would be used to elicit sympathy for Plaintiff.  The motion is granted.

Defendants’ MIL No. 13

            This motion in limine seeks an order that witnesses, documents and demonstratives be disclosed.  This is not a proper motion in limine.  The trial court will have its own rules for trial procedure.  Therefore, the motion is denied without prejudice.

Defendants’ MIL No. 14

            Defendants move to exclude evidence of a conspiracy among defendants and others.  Because the court granted Defendant’s unopposed motion for summary judgment on the conspiracy cause of action, the claims about a conspiracy are no longer part of this case.  The motion is granted.

Defendants’ MIL No. 15

            Johnson & Johnson and LTL Management moves to exclude references to the LTL Management bankruptcy proceedings.  The bankruptcy is irrelevant and will create time-consuming sideshow.  The motion is granted.

            The moving party is to give notice.