Judge: Laura A. Seigle, Case: 21STCV36914, Date: 2023-12-12 Tentative Ruling

Case Number: 21STCV36914    Hearing Date: February 20, 2024    Dept: 15

[TENTATIVE] ORDER RE MOTIONS IN LIMINE

Defendants’ MIL Nos. 1-9

            No motions were filed.

Defendants’ MIL No. 10

Defendant Pneumo Abex LLC seeks to exclude evidence from the Saranac experiments.  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. 11

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. 12

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. 13

Honeywell moves to exclude an article by Laura S. Welch.  Pursuant to the July 8, 2022 CMO, this motion is deemed made and granted as to Welch’s amicus brief but not her article.  Defendant did not show good cause to depart from that order.  Therefore, the motion is denied as to the article without prejudice to a contemporaneous objection at trial.

Defendants’ MIL No. 14

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. 15

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. 16

Honeywell moves to exclude evidence of working conditions at its facilities as irrelevant and unduly prejudicial because Ronald Bronson was 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. 17

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. 18

Honeywell seeks to exclude testimony and videos about William Longo and Richard Hatfield’s work simulations because the simulations are not similar to Bronson’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 Bronson’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. 19

Honeywell seeks to exclude evidence of the publication “Doubt is Their Product.”  Pursuant to the July 8, 2022 CMO, this motion is deemed made and granted unless and until proper foundation is established with the trial court.  Plaintiffs did not show good cause to depart from this order.  Therefore, the motion is granted unless and until proper foundation is established with the trial court.

Defendants’ MIL No. 20

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. 21

            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.  Defendants 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 seeks to exclude evidence of statements of and proceedings of OSHA, the EPA, and any other governmental agency, as well as violations of regulations.  This is too vague.  It would exclude all evidence of OSHA regulations, which could be relevant to notice.  The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 23

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. 24

Defendant 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.  Defendant 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. 25

Defendant Morse Tec 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.

            Moving party is to give notice.