Judge: Laura A. Seigle, Case: 21STCV30709, Date: 2023-05-08 Tentative Ruling
Case Number: 21STCV30709 Hearing Date: May 8, 2023 Dept: 15
ORDER RE MOTIONS IN LIMINE
Plaintiffs’ MIL No. 1
Plaintiffs
move to exclude all reference to exposure to products from defendants
eliminated by motions for summary judgment, pursuant to Code of Civil Procedure
section 437c, subdivision (l). That
section states no other defendant “may attempt to attribute fault to, or
comment on, the absence or involvement of the defendant who was granted”
summary judgment. This motion is too
vague. For example, relevant exhibits or
scientific articles could refer to asbestos in other defendants’ products.
The
motion is granted with respect to a defendant attributing fault to, or
commenting on, the absence or involvement of any defendant who was granted
summary judgment. Otherwise, the motion
is denied.
Plaintiffs’ MIL No. 2
Plaintiffs
move to exclude all reference to OSHA as preempted by California’s
federally-approved OSHA. Plaintiffs move
to exclude all references to Cal-OSHA as prohibited by Labor Code section
6304.5. This motion is too vague and
overbroad. For example, there could be
documents or scientific articles that reference these regulations. In addition, the historical context of the
case could require a party to explain why it did or did not give warnings or
did or did not take precautions. Whether
or not these regulations actually applied to the party in the past, a party may
have thought the regulations applied in the past. In that situation, the party’s belief that a
regulation applied (even if that belief was faulty) may be a reason the party
took or did not take actions in the past.
To
the extent this motion is really about jury instructions and the duty of care
to be set out in jury instructions, that is for the trial judge to decide.
The
motion is denied without prejudice to objections at trial.
Defendants’ MIL No. 1
J-M Manufacturing moves
to exclude the terms “friable” and “inherently dangerous” in reference to
asbestos-cement pipe it supplied. It
argues the product is safe and referring to it as dangerous and friable is not
accurate. That is an issue for the trier
of fact to determine.
The
motion is denied without prejudice to objections at trial.
Defendants’ MIL No. 2
J-M Manufacturing moves
to exclude arguments that there is no safe level of asbestos, and every
exposure contributes to a cumulative dose as unsupported by science, not the
product of scientific principles, and not a matter of medical consensus. This motion is too. In addition, the motion would exclude
arguments about the standard for proving causation and what “substantial
factor” means. 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.
Defendant seeks to
exclude duplicative testimony. If at
trial a witness testifies in a cumulative fashion, Defendant can object at that
time.
The motion is denied
without prejudice to objections at trial.
Defendants’ MIL No. 3
Defendant
J-M Manufacturing moves to bifurcate punitive damages. When a defendant moves to bifurcate, the
court is required to preclude the admission of evidence of the defendant’s
financial condition until after the trier of fact returns a verdict for
plaintiff awarding actual damages and finds that the defendant is guilty of
malice, oppression or fraud. (Civ. Code
§ 3295, subd. (d).)
The motion is granted.
Defendants’ MIL No. 4
Defendant J-M
Manufacturing moves to exclude evidence of 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.
That cross-examination can be done efficiently, which just a few
questions and does not need to consume an undue amount of time.
The motion is denied
without prejudice to a contemporaneous objection at trial.
Defendants’ MIL No. 5
Defendant
J-M Manufacturing moves to exclude any reference about Defendant, J-M A/C Pipe
Corporation and/or Formosa Plastics Corporation, U.S.A. being successor
corporations or alter egos or having successor liability because Plaintiffs
cannot prove such successor liability.
This is a summary judgment motion argument. If successor liability is an issue and needs
to be tried, the parties are to raise the matter of how successor liability is
to be tried with the trial judge.
The
motion is denied without prejudice to objections at trial.
Defendants’ MIL No. 6
Defendant J-M
Manufacturing moves to exclude evidence of working conditions at its manufacturing
facilities as irrelevant and unduly prejudicial because Kirt Bjoin was never
employed 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, the 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. 7
Defendant J-M
Manufacturing moves to exclude evidence about its compliance with 1972 OSHA
labeling regulations because the regulations do not require any warning labels
on their products. To the extent this
motion seeks a ruling on Plaintiffs’ failure to warn claims, it is an improper
motion for summary adjudication. Otherwise, the motion is too vague.
The
motion is denied without prejudice to objections at trial.
Defendants’ MIL No. 8
Defendants move to
exclude any evidence of their lobbying activities and of any trade association
of which they were members as prejudicial and confusing. The motion regarding trade associations is
deemed made and denied pursuant to the July 8, 2022 CMO. The evidence regarding lobby is too vague. Defendants do not identify any specific
evidence to be excluded.
Therefore, the motion is
denied without prejudice to objections at trial.
Defendants’ MIL No. 9
Defendants seek to
exclude testimony and videos from William Longo and Richard Hatfield about work
simulations because the simulations are not similar to Kirt Bjoin’s
exposure. Defendants argue 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.
(Motion at p. 4-5, 11.) 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 Bjoin’s working conditions were different from a small, sealed
chamber. At trial, Defendants can
cross-examine the experts about the similarities and differences of the
workplace 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. 10
J-M Manufacturing Company
seeks to exclude evidence that it has any liability for products sold by
Johns-Manville Corporation because it is a separate entity and J-M
Manufacturing did not assume any liabilities of Johns-Manville Company.
Plaintiffs state they do
not seek to hold J-M Manufacturing Company liable for any product sold before
1983, but that they should be able to refer to Johns-Manville as part of the
corporate history. Therefore, the
parties should be able to stipulate that Plaintiffs will not make any argument
about J-M Manufacturing Company being liable for products sold by
Johns-Manville Corporation.
The motion is off
calendar for the parties to meet and confer on a stipulation.
Defendants’ MIL No. 11
Defendants move to
exclude evidence of various bankruptcies.
Pursuant to the July 8, 2022 CMO, this motion is deemed made and
granted. Plaintiffs did not show good
cause to depart from this ruling.
Therefore, the motion is granted.
Defendants’ MIL Re Grinding Wheels
Defendant
Industrial Holdings Corporation moves to exclude evidence and argument that any
blades used by Kirt Bjoin and his co-workers were the responsibility of Defendant
unless there is evidence that the blades were made by Defendant. This motion is too vague. If Plaintiffs contend that a particular blade
was made by Defendant, but there is no evidence of that, Defendant can argue in
closing that Plaintiffs failed to show that blade was made by Defendant. Pursuant to the July 8, 2022 CMO, this motion
is deemed made and denied, and Defendant did not show good cause to depart from
this order.
The
motion is denied without prejudice to objections at trial.
Defendants’ MIL Re Asbestos Wheels
Defendant
Industrial Holdings Corporation moves to exclude evidence and argument that
Kirt Bjoin used or was exposed to any asbestos-containing wheels from Defendant
because none of the blades he used from Defendant contained asbestos. This motion is too vague. If Plaintiffs contend Kirt Bjoin was exposed
to an asbestos-containing blade from Defendant, but then fail to submit
evidence of that, Defendant can argue in closing that Plaintiffs failed to show
exposure to any asbestos-containing blade from Defendant. Pursuant to the July 8, 2022 CMO, this motion
is deemed made and denied, and Defendant did not show good cause to depart from
this order.
The
motion is denied without prejudice to objections at trial.
The
moving party is to give notice.