Judge: Laura A. Seigle, Case: 21STCV28950, Date: 2024-02-27 Tentative Ruling
Case Number: 21STCV28950 Hearing Date: March 18, 2024 Dept: 15
[TENTATIVE] ORDER RE MOTIONS IN LIMINE
Plaintiffs’ MIL No. 1
This motion seeks to
exclude improper statements during voir dire and improper arguments, including
questions about Covid, cancer, and corporations, expressing sympathy,
mentioning background exposure, referencing the government’s use of asbestos,
and mentioning nature or God.
As an
initial matter, this is several motions combined into one.
(a) Questions about cancer and corporations: The trial court determines the scope of voir
dire and will give the attorneys the rules for that trial court. If any attorney asks inappropriate questions
during voir dire, the other side should object at that time. A motion in limine is not the proper place to
define the questions that can and cannot be asked in voir dire. The motion is denied without prejudice to
objections at trial.
(b) Sympathy:
Plaintiffs cite no law prohibiting a defense counsel from briefly
expressing sympathy for a plaintiff.
That is a common occurrence.
Statements of attorneys are not evidence, as the court will instruct the
jury. The motion is denied without
prejudice to objections at trial.
(c) Background exposure: An expert may be able to establish a
foundation for the existence and relevance of background asbestos. Also, pursuant to the July 8, 2022 CMO,
motions to exclude evidence as speculative or unsubstantiated 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.
(d) Government’s use of asbestos: This is too vague. Scientific articles and studies relied upon
by experts could mention this use of asbestos, and an expert might be able to
establish a basis for relying on and describing such studies. The motion is denied without prejudice to
objections at trial.
(e) God or Mother Nature: The motion seeks to exclude any statements
that God or Mother Nature made asbestos.
This motion is too vague.
Scientific articles and studies relied upon by experts could mention
that asbestos is a naturally occurring mineral, and an expert might be able to
establish a basis for relying on and describing such studies. Further, there might be evidence that
asbestos comes from mines, making it part of nature. The fact that it is naturally occurring is
not prejudicial. If a party starts
talking about God at trial, the opposing party can object at that time. The motion is denied without prejudice to
objections at trial.
(f)
State rock: This motion moves to exclude
reference to asbestos as the state rock no evidence supports that assertion
given that gold is the state rock.
Pursuant to the July 8, 2022 CMO, motions to exclude unsubstantiated
evidence 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. 2
Plaintiffs move to
exclude evidence that other defendants were sued but are not at trial and the
contents of the complaint because it is not a judicial admission.
Pursuant to the July 8,
2022 CMO, a motion to modify the caption to refer only to defendants remaining
in the case is deemed made and granted but not to affect any allocation of
fault under Proposition 51. To the extent
the motion seeks to exclude any evidence of other defendants not at trial, the
motion is denied as too vague. For
example, a deposition testimony of a witness of another defendant may be
admissible, or evidence may be relevant for Proposition 51 purposes.
“ ‘The admission of fact
in a pleading is a “judicial admission.” ’
[Citation.] A judicial admission
in a pleading is not merely evidence of a fact; it is a conclusive concession
of the truth of the matter.
[Citation.] ‘Well pleaded
allegations in the complaint are binding on the plaintiff at trial.’ [Citation.]
‘The trial court may not ignore a judicial admission in a pleading, but
must conclusively deem it true as against the pleader.’ [Citation.]”
(Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 187.) Based on this case law, the complaint may
contain judicial admissions of fact. The
court therefore cannot conclude at this time that the complaint is
inadmissible.
The
motion is granted in part and denied in part without prejudice to objections at
trial.
Plaintiffs’ MIL No. 3
Plaintiffs move to
exclude evidence and arguments contradicting the law on causation. This motion is too vague as it does not
identify specific documents or evidence to be excluded. Also, under the July 8, 2022 CMO, motions to
exclude expert opinions about the term “substantial factor” are deemed made and
denied without prejudice to objections at trial. Plaintiffs did not show good cause to depart
from this order. The motion is denied
without prejudice to objections at trial.
Defendants’ MIL No. 1
Vanderbilt moves to
exclude evidence of workers’ compensation actions. If notice of the dangers of asbestos or
asbestos in the products at issue is contested, some evidence of these claims
may be relevant and for a non-hearsay purpose.
However, the details of the claims 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 granted and made pursuant to the July 8, 2022 CMO. The motion is granted in part and denied in
part subject to objections at trial.
Defendants’ MIL No. 2
Defendant Vanderbilt moves
to exclude the Hull Paper as “nothing more than junk science” because its
authors serve as expert witness for plaintiffs, it was not subject to peer
review, and it did not follow the proper methodology. If an expert establishes that the Hull Paper
is the type of material that experts in the field rely upon, evidence about the
Hull Paper may be admissible. Defendant
can then cross-examine the expert about the perceived deficiencies in the study
and argue to the jury that it should be given little or no weight. The motion is denied without prejudice to
objection at trial.
Defendants’ MIL No. 3
Vanderbilt moves to
exclude evidence of communications with OSHA about a proper definition of
asbestos. If Defendant contends it did
not know about the presence or hazards of asbestos in talc at the times of the
communications, the communications may be relevant to Defendant’s notice or
knowledge about asbestos in talc.
Defendant’s argument that the evidence is speculative is addressed in
the July 8, 2022 CMO, which deems such a motion made and denied. Defendant did not show good cause to depart
from the CMO. The objection that
documents are hearsay depends on the use of the documents. If they are used for non-hearsay purposes,
such as notice, this objection lacks merit.
But that cannot be determined at this time.
The
motion is denied without prejudice to objection at trial.
Defendants’ MIL No.
4
Vanderbilt seeks to
preclude any mention of an investigation against John Gamble relating to a
change in his work at NIOSH under Evidence Code section 352. The investigation into Gamble is irrelevant,
will be a confusing side-show, and will take an undue amount of time in a trial
that will already require too much time of the jury. The motion is granted as to an investigation
into Gamble.
Defendants’ MIL No. 5
Defendant seeks to
exclude all evidence of any documents from Johns-Manville Corporation about
Vanderbilt Minerals. This motion is too
vague and broad in referring to all such documents.
Defendant then specifies three
documents to exclude, arguing they are hearsay and Plaintiffs cannot establish
that the documents are business records.
If Plaintiffs seek to use the documents at trial for the truth of the
matter asserted (rather than for some non-hearsay purpose), and if they fail to
show they are business records, Defendants can object at that time.
The motion is denied
without prejudice to objections at trial.
Defendants’ MIL No. 6
Vanderbilt moves to
exclude a November 11, 1983 letter from McCrone Research Associated written by
Gene Prentice and Gary Nichols to R.W. Owens about testing a talc sample as contrary
to scientific fact, lacking authentication, hearsay, and prejudicial. Defendant contends it cannot cross-examine
the expert who wrote the letter.
The
court cannot determine before trial if a party will be able to authenticate a
trial exhibit. If the offering party
fails to authenticate an exhibit, the objecting party should object at that
time. The court cannot determine before
trial how the offering party will seek to use the letter. If it is offered for a non-hearsay purpose (such
as notice) or if it is admissible as a business record or under some other
exception, this objection may have no merit.
That cannot be determined now. If
the letter is otherwise admissible, Defendant can have they experts explain why
the letter is contrary to scientific fact, and Defendant can cross-examine any
expert who relies on the letter.
The
motion is denied without prejudice to objections at trial.
Defendants’ MIL No. 7
Defendant moves to exclude
March 24, 1982 and March 31, 1982 OSHRC documents about asbestos in R.T.
Vanderbilt Company’s talc as lacking foundation, hearsay, and improper expert
testimony. If Plaintiffs are able to
authenticate the documents at trial, they may be admissible for a non-hearsay
purpose, such as notice or knowledge about asbestos in talc. Or an expert may be able to establish that it
is the type of material that experts in the field rely upon. The motion is denied without prejudice to
objection at trial.
Defendants’ MIL No. 8
Vanderbilt seeks to
exclude statements that its products kill people and poison the world as
argumentative and prejudicial. This
motion is too vague. If at trial someone
makes an improper statement, Defendant should object at that time.
The
motion is denied without prejudice to objection at trial.
Defendants’ MIL No.
9
Defendant Honeywell moves
to exclude all references to foreign bans on the importation of chrysotile
asbestos. Plaintiffs did not show any
defendant was aware of a foreign ban on chrysotile asbestos or the reasons why
the foreign governments banned it.
Allowing that evidence will consume an undue amount of trial time
exploring the bases for and legislative history of the foreign bans. The evidence would have little probative
value because foreign bans did not apply to workplaces in the United States and
would be confusing to the jury. The
motion is granted.
Defendants’ MIL No. 10
Defendant Honeywell seeks
to preclude a 1986 EPA document entitled “Guidance for Preventing Asbestos
Disease Among Auto Mechanics” as irrelevant, hearsay, unscientific, and unduly
prejudicial. If Defendant contends it
did not know about the hazards of asbestos by 1986, the document could be
relevant to Defendant’s 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 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 objections at trial.
Defendants’ MIL No. 11
Defendant Honeywell 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.
Defendant 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. 12
Honeywell moves to
exclude evidence relating to the Friction Materials Standard Institute as
unauthenticated, irrelevant, and hearsay.
The motion does not identify the specific documents or even state
whether the documents appear on the parties’ joint witness list. This motion is too vague. The court cannot predict whether Plaintiffs
will be able to authenticate and establish the admissibility of unidentified
documents at trial. Defendant should
object if and when Plaintiffs seek to use specific FMSI documents at
trial. For example, an expert might rely
on a FMSI document, and such a document might be admissible if the expert
establishes that it is the type of document relied upon as accurate by experts
in the field. The motion is denied
without prejudice to objections at trial.
Defendants’ MIL No. 13
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. Defendant states the
documents are unsigned and 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 at trial, Defendant should object then.
The documents could be
relevant to 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.
Plaintiffs did not establish the author of the letter was a managing
agent or authorized to speak for the company.
The motion is granted in
part and denied in part without prejudice to objections at trial.
Defendants’ MIL No. 14
Honeywell seeks to
exclude testimony and videos about William Longo and Richard Hatfield’s work
simulations because the simulations are not similar to Plaintiff’s
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.) At trial, Defendants can cross-examine the
experts about the similarities and differences of Plaintiff’s exposure to a
small, sealed chamber and argue the jury should give the videos no weight
because of the different conditions. The
motion is denied without prejudice to objections at trial.
Defendants’ MIL No. 15
Honeywell moves to
exclude evidence of working conditions at its facilities as irrelevant and
unduly prejudicial because Plaintiffs were never employed by Honeywell. This motion is too vague. If “working conditions” refers to something
like wage and hour violations, that would be irrelevant. However, if it refers to something like
workers being exposed to asbestos, the evidence could be relevant. For example, the evidence of asbestos
exposure at Defendant’s facilities could be relevant to knowledge or notice. The motion is denied without prejudice to
objections at trial.
Defendants’ MIL No. 16
Honeywell moves to
exclude evidence of workers’ compensation actions. If notice of the dangers of asbestos or
asbestos in the products at issue is contested, some evidence of these claims
may be relevant and for a non-hearsay purpose.
However, the details of the claims 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 granted and made pursuant to the July 8, 2022 CMO. The motion is granted in part and denied in
part subject to objections at trial.
Defendants’ MIL No. 17
Honeywell moves to
exclude evidence of Bendix’s conduct and knowledge after the last exposure as
not relevant. This motion is too vague,
and such conduct could be relevant. For
example, 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. 18
Honeywell moves to
exclude arguments that any exposure is a “substantial factor.” Defendant does not identify the specific
expert opinion to be excluded.
Therefore, the motion is too vague.
Also, 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. 19
Defendants
move to bifurcate punitive damages. The
motion is granted.
The
moving party is to give notice.