Judge Laura A. Seigle, Case 21STCV42171 2022-11-07 Tentative Ruling

Judge: Laura A. Seigle, Case: 21STCV42171, Date: 2022-11-07 Tentative Ruling

Case Number: 21STCV42171 Hearing Date: November 7, 2022 Dept: 15

[TENTATIVE] ORDER RE MOTIONS IN LIMINE

The parties (Defendants in particular) filed dozens of motions in limine. Several of the motions were not proper motions in limine but instead concerned trial procedure. Many motions are addressed in the July 8, 2022 CMO. Therefore, the parties did not need to file those motions. One of the purposes of the CMO is to save attorney and judicial resources. That objective will be undermined if parties continue to file proforma motions (the same motions the parties file in every case with just the plaintiff’s name changed) already addressed in the CMO.

Plaintiffs’ MIL re Alcohol

Plaintiffs seek to exclude evidence of Marcher’s use of alcohol and other substances as not relevant and unduly prejudicial. The motion is denied to the extent an expert relies on the evidence as relevant to Plaintiff’s life expectancy or showing causes of his disease. Otherwise the motion is granted.

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

Plaintiffs’ MIL No. 2

Plaintiffs move to exclude evidence of two articles denoted Pierce 2008 and Pierce 2016, which Plaintiffs claim are speculative and not scientifically reliable. Plaintiffs did not identify any defense expert who relies on these articles and did not cite any deposition testimony of any defense expert about these articles. Therefore the motion is too vague.

If a defense expert relies on these articles, Plaintiffs can cross-examine the expert about the articles and argue the expert’s testimony should be given little weight because of the unreliability of the articles.

The motion is denied without prejudice to objections at trial.

Plaintiffs’ MIL No. 3

Plaintiffs move to exclude all references to corporate hearsay. Plaintiffs argues that at trial some unspecified defendant will ask some unidentified witness questions calling for hearsay. This motion is extremely vague. It is denied without prejudice to objections at trial.

Defendants’ MIL No. 1

Ameron International Corporation filed a declaration in support of a motion to exclude reference to its products, but it did not file the motion. Because this defendant was dismissed on October 18, 2022, and because the motion was never filed, the motion is off calendar.

Defendants’ MIL No. 2

Ameron International Corporation made this motion to exclude its prior discovery responses and deposition testimony. It was dismissed on October 18, 2022. Therefore the motion is off calendar.

Defendants’ MIL No. 3

No motion was filed.

Defendants’ MIL No. 4

J-M Manufacturing Company seeks 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 No. 5

J-M Manufacturing Company seeks to exclude evidence relating to dismissed defendant Formosa Plastics Corporation and J-M A/C Pipe Corporation. This motion is vague. For example, there may be a relevant document that mentions one of those entities. J-M Manufacturing argues Plaintiffs should not be allowed to contend it had an alter-ego or successor relationship with J-M A/C because there is no evidence of such a relationship. If Plaintiffs claim such a relationship at trial and then fail to present any such evidence, Defendant can tell the jury that Plaintiffs did not come forward with the evidence they promised.

The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 6

No motion was filed.

Defendants’ MIL No. 7

No motion was filed.

Defendants’ MIL No. 8

J-M Manufacturing Company seeks to exclude testimony and videos from William Longo and Richard Hatfield about work simulations because the simulations are not similar to Nikolaus Marcher’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. (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 Marcher’s working conditions were different from a small, sealed chamber. At trial, Defendant 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 attached 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 a contemporaneous objection at trial.

Defendants’ MIL No. 9

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. Defendant filed a copy of the bankruptcy court order stating the sale of assets to J-M Manufacturing was free and clear of all claims for personal injury attributable to asbestos. Plaintiffs did not oppose this motion. Therefore, it is granted.

Defendants’ MIL No. 10

J-M Manufacturing Company moves to exclude any evidence of its lobbying activities and of any trade association of which it was a member 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. Defendant does not identify any specific evidence to be excluded. Therefore, the motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 11

J-M Manufacturing moves to exclude the terms “friable” and “inherently dangerous” in reference to the asbestos-cement pipe supplied by J-M Manufacturing Company, Inc. 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 a contemporaneous objection at trial.

Defendants’ MIL No. 12

J-M Manufacturing moves to exclude all evidence of prior lawsuits relating to asbestos brought by its former employees. This motion is too vague. For example, prior testimony is often designated and may be admissible. The motion is denied without prejudice to a contemporaneous objection at trial.

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.

Defendants’ MIL No. 13

Defendants seek to pre-admit documents. This is not a proper motion in limine. There is no legal basis to admit documents before the trial begins unless all parties agree. The parties are to meet and confer in person or on the phone about stipulations as authenticity and admissibility of each exhibit on the joint exhibit list. The motion is denied.

Defendants’ MIL No. 14

Defendants move to impose time limits at trial. This is not a motion in limine. It is denied.

Defendants’ MIL No. 15

J-M Manufacturing filed a motion to exclude any evidence about the loss or destruction of its documents. Defendant explained how at some point documents were put into storage and then in the late 1980s or early 1990s, they were discarded at a time when there was no asbestos-litigation pending. Plaintiffs did not oppose this motion, and testimony about Defendant’s storage and discarding of documents in the 1980s and 1990s would consume an undue amount of trial time and be confusing to the jury. Therefore, the motion is granted.

Defendants’ MIL No. 16

J-M Manufacturing seeks to exclude cumulative testimony but does not identify any experts who will be cumulative. Because this motion fails to identify any cumulative testimony, it is denied.

Defendants’ MIL No. 17

Kaiser Gypsum Company, Inc. seeks to exclude all evidence about regulatory bans on asbestos products including foreign bans on the importation on chrysotile asbestos as hearsay, irrelevant, and confusing and misleading.

Plaintiffs did not show that there is any evidence 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 to exclude evidence about US federal and state regulations is too vague. The information in existence before the last date of alleged exposure is potentially relevant to show Defendant’s knowledge and notice.

The motion is granted as to foreign bans and otherwise denied without prejudice to a contemporaneous objection at trial.

Defendants’ MIL No. 18

Kaiser moves to exclude deposition testimony from Brentwood Crosby and John Crum as hearsay. General hearsay objections to past testimony are handled through the page/line designation process pursuant to the July 8, 2022 CMO and August 2022 amendment. Therefore, this motion is off calendar.

Defendants’ MIL No. 19

Metalclad moves to preclude evidence of a brief and article authored by Laura Welch. This motion is deemed made and granted in part and denied in party by the July 8, 2022 CMO. The parties have not shown good cause to depart from that order. Therefore, the motion is granted in part and denied in part without prejudice to objections at trial. The brief is excluded but the article is not.

Defendants’ MIL No. 20

Kaiser moves to exclude arguments that “there is no safe dose “of asbestos, and “a single fiber or any exposure” is enough to cause disease. This motion is too vague, and Plaintiffs state they do not intend to rely on the argument that every fiber causes cancer.

The motion appears to extend beyond these specific phrases by also trying to limit the 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.

The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 21

Kaiser moves to exclude reference to corporate representatives at trial. Pursuant to the July 8, 2022 CMO, the motion is deemed made and granted. Plaintiffs did not show good cause to depart from this order.

The motion is granted.

Defendants’ MIL No. 22

Union Carbide moves to exclude evidence of its corporate structure and relationship with Dow Chemical and Dow as irrelevant. This motion is too vague. For example, an exhibit that is otherwise relevant and admissible may refer to an entity in Union Carbide’s corporate structure or to Dow Chemical.

The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 23

Union Carbide moves to exclude any reference to incidents where people died or were injured as a result of Union Carbide’s chemicals other than asbestos. Incidents not involving asbestos are irrelevant, more prejudicial than probative and would be unduly time consuming.

Plaintiffs argue that Union Carbide is going to present evidence of its good corporate character. If that occurs, Plaintiffs can ask to present rebuttal evidence.

The motion is granted.

Defendants’ MIL No. 24

Union Carbide moves to exclude evidence of working conditions at its facilities as irrelevant and unduly prejudicial because Marcher was never employed by Union Carbide. This motion is too vague. For example, the evidence of Union Carbide’s working conditions concerning asbestos at its facilities could be relevant to knowledge or notice.

The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 25

Union Carbide seeks 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. 26

Kaiser moves to exclude testimony from Nikolaus Marcher because he could not remember details and needed to look at a list he prepared. Defendant argues Marcher should not be allowed to testify about any products he worked with because he does not remember any products without the aid of the list. The court cannot predict Marcher’s trial testimony or whether Plaintiffs’ counsel will be able to establish at trial the prerequisites for the introduction of the list pursuant to Evidence Code section 1237, subdivision (a).

The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 27

Metalclad seeks to exclude evidence of workers’ compensation claims. Pursuant to the July 8, 2022 CMO, this motion in limine is deemed made and granted. Plaintiff did not show good cause to depart from this order.

Therefore, the motion is granted.

Defendants’ MIL No. 28

No motion was filed.

Defendants’ MIL No. 29

No motion was filed.

Defendants’ MIL No. 30

Metalclad Insulation LLC seeks an order that strict liability does not apply to a contractor. This motion should have been brought as a motion for summary adjudication of the second cause of action for strict liability. Because this is an improper motion for summary adjudication, it is denied.

Defendants’ MIL No. 31

Metalclad moves to exclude evidence of knowledge of asbestos trade groups. Pursuant to the July 8, 2022 CMO, this motion is deemed made and denied. Defendant did not show good cause to depart from that order. Therefore, the motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 32

No motion was filed.

Defendants’ MIL No. 33

Metalclad seeks to exclude damages that were not actually incurred. Pursuant to the July 8, 2022 CMO, this motion is deemed made and denied. Defendants did not show good cause to depart from that order. Therefore, the motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 34

Metalclad moves exclude evidence of EPA and OSHA commentary on the causal connection between exposure to asbestos and the development of disease, as well as the French government’s ban on chrysotile asbestos. Plaintiffs did not show that there is any evidence any defendant was aware of the French ban on chrysotile asbestos or the reasons why the French government banned it. Allowing that evidence will consume an undue amount of trial time exploring the bases for the French ban. The evidence would have little probative value because it did not apply to workplaces in the United States.

The motion to exclude evidence about domestic governmental actions is too vague. The information in existence before the last date of alleged exposure is potentially relevant to show Defendants’ knowledge and notice.

The motion is granted as to the French ban and otherwise denied without prejudice to a contemporaneous objection at trial.

Defendants’ MIL No. 35

National Steel and Shipbuilding Company seeks to exclude evidence of asbestos at federal installations and U.S. Navy ships because Plaintiffs agreed not to assert claims based on exposure while on navy ships or federal installations. This defendant was dismissed on October 18, 2022. Therefore the motion is off calendar.

Defendants’ MIL No. 36

Calaveras Asbestos Ltd. seeks to exclude evidence of working conditions at its facilities as irrelevant and unduly prejudicial because Marcher was never employed by Calaveras. This motion is too vague. For example, the evidence of Calaveras’s working conditions concerning asbestos at its facilities could be relevant to knowledge or notice.

The motion is denied without prejudice to objections at trial.

Defendants’ MIL Nos. 37-41

No motions were filed.

Defendants’ MIL No. 42

Ferguson Enterprises filed a motion to exclude CertainTeed documents as irrelevant. Because Ferguson was dismissed on October 18, 2022, the motion is off calendar.

Defendants’ MIL No. 43

Ferguson Enterprises filed a motion to exclude two documents from its production as irrelevant. Because Ferguson was dismissed on October 18, 2022, the motion is off calendar.

Defendants’ MIL No. 44

Ferguson moved to exclude hearsay documents from its document production. Because Ferguson was dismissed on October 18, 2022, the motion is off calendar.

Defendants’ MIL No. 45

No motion was filed.

Defendants’ MIL No. 46

Ferguson moved to exclude the deposition testimony of Frank Sims as hearsay. Because Ferguson was dismissed on October 18, 2022, and because general hearsay objections to past testimony are handled through the page/line designation process pursuant to the July 8, 2022 CMO and August 2022 amendment, the motion is off calendar.

Defendants’ MIL No. 47

Ferguson moved to exclude documents and deposition transcripts from Crane as irrelevant, prejudicial and hearsay. Because Ferguson was dismissed on October 18, 2022, and because general hearsay objections to past testimony are handled through the page/line designation process pursuant to the July 8, 2022 CMO and August 2022 amendment, the motion is off calendar.

The moving party is to give notice.