Judge: Laura A. Seigle, Case: 21STCV23555, Date: 2023-08-10 Tentative Ruling

Case Number: 21STCV23555    Hearing Date: January 29, 2024    Dept: 15

[TENTATIVE] ORDER RE MOTIONS IN LIMINE

Defendants’ MIL Re Bailey

            Defendant Merle Norman Cosmetics, Inc. filed a motion to exclude Mark Bailey’s testimony because Plaintiffs produced his report late, citing Code of Civil Procedure section 2034.260.  (Motion at p. 5.)  That section requires the exchange of (a) the name and address of the expert, (b) a declaration signed by the attorney setting out the expert’s qualifications, the general substance of the expected testimony, and a representation that the expert has agreed to testify and will be familiar with the action to give a meaningful deposition, and (c) information about the expert’s fees and costs.  Section 2034.260 does not say anything about the exchange of expert reports.  Rather, section 2034.270 states that if a demand for an exchange of expert information includes a demand for the production of reports, the parties shall produce reports on the date specified in the demand.  Defendant did not attach any demand for exchange of expert information that included a demand for the production of reports on a specific date.  Therefore, Defendant did not show that Plaintiffs produced the report late.

            Defendant also argues Bailey did not establish that the samples he tested were authentic Merle Norman products because he testified he received the samples from Plaintiffs’ counsel.  (Motion at p. 6.)  Plaintiffs argue that Bailey received unopened samples in the original packaging labelled “Merle Norman.”  (Opposition at p. 6.)  Evidence that the samples were unopened and labelled is sufficient for a prima facie showing that the samples he tested were Merle Norman products.  Defendant can cross-examine the witness about whether the samples were actually from Merle Norman, were counterfeit products, were from years outside the time of exposure, etc., which will go to the weight the jury gives the expert’s testimony.

            Defendant further argues the samples were not used by Plaintiff and therefore are irrelevant.  Pursuant to the July 8, 2022 CMO, motions to exclude irrelevant testimony are deemed made and denied.  Defendant did not show good cause to depart from that order.  In any event, if Plaintiffs show Defendant used the same talc for its products over the years and that talc contained asbestos, then the fact that Plaintiff did not use the actual container tested is not significant.  Defendant did not submit evidence that it used different talc over the years. 

            Defendant next argues that Bailey’s reliance on the testing of the samples is unreliable because the samples are not authenticated.  As discussed above, there is evidence that the samples were unopened and labeled as from Merle Norman.  And Defendant argues Bailey’s reliance on the testing is unreliable because Plaintiffs did not use the actual samples tested.  As discussed above, Defendant did not show that it used different talc over the years such that the particular year the samples were made is meaningful.

            Finally, Defendant argues the tests are hearsay because Bailey did not personally perform the tests.  Plaintiffs say Bailey was personally involved in the testing.  The deposition testimony states that one of Bailey’s analysts did the tests, and he oversaw the work and reviewed the data.  He can testify about what he did, and if he can establish that the testing he oversaw was reliable and accurate, it may be admissible.

            The motion is DENIED.

Defendant’s MIL to Bifurcate

            Merle Norman moves to bifurcate punitive damages.  The motion is granted.

            The moving party is to give notice.