Judge: Laura A. Seigle, Case: 21STCV45118, Date: 2022-08-19 Tentative Ruling

Case Number: 21STCV45118    Hearing Date: August 19, 2022    Dept: 15

[TENTATIVE] ORDER RE MOTIONS IN LIMINE

Plaintiffs’ MIL No. 1

            Plaintiffs seek to exclude reference to Jose Diaz’s Covid-19 diagnosis as irrelevant, prejudicial, and unsupported by the evidence. 

            Having had Covid-19 is not prejudicial.  At this point, everyone in Los Angeles likely has had, or knows someone who has had, Covid-19.  Evidence that Jose Diaz’s health was impacted by Covid-19 could be relevant to causation or comparative fault.  The Court cannot conclude before the trial on a motion in limine that no evidence supports a particular point.

            The motion is denied without prejudice to a contemporaneous objection at trial.

Plaintiffs’ MIL No. 2

            Plaintiffs seek to exclude reference to their residency status and the residency status of other witnesses.  Pursuant to Evidence Code section 351.2, the motion is granted.  However, witnesses may discuss Jose Diaz life on a farm near erionite.

            The motion is granted.

Plaintiffs’ MIL No. 3

            This motion seeks to exclude evidence that asbestos is California’s state rock.  Defendants argue that the fact that in 1965 California declared serpentine the state rock “shows that the community did not have knowledge about the hazards of asbestos at that time.” 

            Serpentine is not at issue in the case.  Testimony about the state rock will consume an undue amount of time and has very little probative value.

            The motion is granted.

Defendants’ MIL No. 1

            Defendants seek to exclude evidence of a 1938 Saranac Laboratory experiment.  Pursuant to the July 8, 2022 CMO, this motion is deemed made and granted.  Plaintiffs did not show good cause to modify this order.

            Therefore, the motion is granted.

Defendants’ MIL No. 2

            Defendants seek 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.  The documents are unsigned, and Defendants state 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 into evidence at trial, Defendants should object then.

The document could be relevant to Defendants’ 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. 

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.

The motion is granted in part and denied in part.

Defendants’ MIL No. 2

Defendants seek to exclude evidence of work Jose Diaz did at locations other than the five locations identified at his deposition.  This is a subset of a motion to exclude evidence not disclosed in discovery.  Pursuant to the July 8, 2022 CMO, this motion is deemed made and denied without prejudice to a contemporaneous objection at trial.

Defendants also seek to exclude hundreds of documents subpoenaed from Advanced and R3 as unauthenticated and hearsay.  The motion to exclude the documents subpoenaed from Advanced and R3 is too vague.  The Court cannot assume Plaintiffs cannot authenticate any of the subpoenaed documents or that all of the subpoenaed documents are hearsay.  If during the trial Plaintiffs seek to admit a document that has not been authenticated or that is hearsay, Defendants should object at that time.

The motion is denied without prejudice to a contemporaneous objection at trial.

Defendants’ MIL No. 3

This motion seeks to exclude testimony from Aned Lopez for lack of foundation.  Defendants argue Lopez testified that he worked at Orange County job sites, but that other evidence shows Lopez could not have worked at Orange County job sites.  Lopez’s testimony has foundation – he has personal knowledge about whether he went to Orange County for work.

Defendant says Lopez’s testimony is “pure fabrications.”  (Motion at p. 6.)  Whether Lopez is telling the truth is a credibility determination for the jury.  The jury may decide they believe Lopez and discredit the other evidence, or they may decide Lopez is not credible in the face of the other evidence.  Deciding whether a witness is telling the truth is not a proper matter for a motion in limine.

The motion is denied without prejudice to a contemporaneous objection at trial.

Defendants’ MIL No. 4

            Defendants move to exclude evidence of a 1986 EPA guidance about asbestos as hearsay, unscientific, and unduly prejudicial.

The document could be relevant to Defendants’ notice 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.  Also, the contents of the document may be admissible at trial via an expert if the expert establishes that 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 a contemporaneous objection at trial.

Defendants’ MIL No. 5

            This motion seeks to exclude evidence from any trade organization as lacking authentication, irrelevant and hearsay.

            The Court cannot determine at this point that no witness will be able to authenticate trade organization documents.  If Plaintiffs seek to introduce unauthenticated documents into evidence at trial, Defendants should object then.

            Assuming the documents are authenticated, they could be relevant to Defendants’ notice 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.  Similarly, an expert may rely on trade organization documents, and the documents might be admissible if the expert establishes that they is the type of documents relied upon as accurate by experts in the field.

            The motion is denied without prejudice to a contemporaneous objection at trial.

Defendants’ MIL No. 6

            Defendants move to exclude testimony and videos from William Longo and Richard Hatfield about work simulations because the simulations are not similar to Jose Diaz’ 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, 7.) 

            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 Jose Diaz’s working conditions were different from a small, sealed chamber.  In making this argument, the motion refers to a Mr. Brooks being outside as a gas station attendant.  (Motion at pp. 7, 14.)  These paragraphs seem to be from a motion in another case.  In any event, Defendants did not submit evidence that Jose Diaz’s working conditions were different.  While Defendants claim Diaz “performed only four brake replacements on his personal vehicles – each of which took place outside” (Motion at p. 2), the cited evidence does not say that.  Defendants cite Exhibit X at page 1-2.  (Motion at p. 2.)  Exhibit X is Jose Diaz’ interrogatory responses.  At pages 1-2, he states he purchased brakes, he would sand the brake pads and install them, there were “big plumes of dust everywhere,” and he “installed, sanded, and blew off new Bendix brakes a lot.”  (Ex. X at p. 2.)  Nowhere does the response state he only performed four brake replacements outside.  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 attached over 200 pages of exhibits that have been copied so many times as to make most of the pages illegible.  Apparently these exhibits are rulings by other courts excluding the evidence.  Because the Court could not read the exhibits, it could not make any ruling based on them.

            The motion is denied without prejudice to a contemporaneous objection at trial.

Defendants’ MIL No. 7

            Defendants move to bifurcate punitive damages.  The motion is granted.

Defendants’ MIL No. 8

            Defendants move to exclude all evidence and reference to Pep Boys’ non-compliance with 1972 regulations about warning labels for asbestos because Plaintiffs were not employees of Pep Boys and the 1972 regulations did not impose any obligation on Pep Boys to label products it sold to Plaintiffs.

            This is granted to the extend Plaintiffs seek to argue Pep Boys was required to comply with the 1972 regulations.  It is denied if the 1972 regulations are offered for some other purpose.

            The motion is granted in part and denied in part.

Defendants’ MIL No. 11

            Defendants seek to exclude the Don’t Blow It video and any evidence referring to the video as hearsay, unscientific, and prejudicial. 

Evidence about the video may be relevant and admissible to show knowledge or notice, among other things.  Also, the video may be admissible at trial via an expert if the expert establishes that it is general background information of the type relied upon by experts in the field.  The claim that the video is unscientific can be the subject of cross-examination and goes to the weight to be given the video.

Defendants argue the video is prejudicial because of the references to wives and children.  That section of the video is irrelevant because there is no claim in this case about injury to wives and children.  Similarly, smoking does not seem to be an issue in this case.  If Plaintiff establish that the video is admissible for a non-hearsay purpose, the portion of the video beginning with the discussion of the magazine article and ending with “I either quit smoking or I quit this business” is to be redacted.

            The motion is granted in part and denied.

Defendants’ MIL No. 12

This motion seeks to exclude various deposition testimony pursuant to Berroteran.  If another party designates these transcripts, Defendants should object as part of the deposition designation and objection process. 

The motion is off calendar.

Defendants’ MIL No. 12

This motion seeks to exclude expert Steven Compton “from testing or offering opinions related to Gold Bond.”  (Motion at p. 1.)  Defendants contend Compton opines “that Gold Bond talc more likely than not contained asbestos,” but Defendants did not provide the excerpts of the Compton deposition in which Compton stated the opinions he plans to testify to.  (Motion at p. 4.)

1.         Speculation

First, Defendants argue Compton’s opinions are speculative according to the reasoning and holding in Berg v. Colgate-Palmolive Co. (2019) 42 Cal.App.5th 630.  (Motion at p. 6.)  In that case, the court affirmed a grant of summary judgment involving allegations of asbestos exposure from Mennen’s shave talc.  The plaintiff had used four to six containers of the shave talc between 1959 and 1962.  (Id. at p. 632.)  The plaintiff’s expert stated the talc was sourced from Italy and North Carolina mines contaminated with asbestos, FDA tests in 1972 and 1976 showed the Mennen shave talc contained asbestos, and his tests of samples of Mennen shave talc revealed asbestos.  (Id. at pp. 632-633.)  The court held this fact pattern was different than the facts in Lyon v. Colgate-Palmolive Co. (2017) 16 Cal.App.5th 463, because the plaintiff in Lyon used the product regularly over 20 years, there was no evidence of other sources of asbestos, and the plaintiff’s expert concluded all Cashmere Boutique product contained significant concentrations of asbestos.  (Id. at p. 636.)  In Berg, the plaintiff used the shave talc for a much shorter time periods, and the plaintiff’s expert’s declaration did not support a conclusion that all or most of the Mennen shave talc containers sold from 1959-1962 contained asbestos.  (Ibid.)  Rather, the expert’s testing occurred decades after the plaintiff’s use and there was no evidence that the tested samples were from 1959-1962.  (Ibid.)  The evidence fell “far short of establishing that any containers of Mennen Shave Talc sold between 1959 and 1971 or 1962 contained asbestos, much less that it is more likely than not that the containers [the plaintiff] used contained asbestos.”  (Id. at pp. 636-637.)

Defendants argue Compton’s opinions are speculative because he did not test any Gold Bond powder and does not know whether the Montana talc he tested was used in Gold Bond.  (Motion at p. 9.)  However, it appears the 53 samples of talc Compton tested were from Gold Bond’s primary source of talc in Montana.  (Motion at p. 6.)  Defendants did not provide other information to determine whether this case is more like Berg, where the plaintiff only used a few containers of the allegedly asbestos-containing product, or like Lyon, where the plaintiff regularly used the product for decades.

Also, Defendants do not address Strobel v. Johnson & Johnson (2021) 70 Cal.App.5th 796, where Compton also served as an expert and the court reversed a grant of summary judgment.  The plaintiff used Johnson & Johnson baby powder his entire life from 1951 until 2014, totally at least 338 containers.  (Id. at p. 801.)  He was not exposed to asbestos from any other source.  (Ibid.)  The talc came from mines in Italy, Vermont, and China.  (Id. at p. 807.)  The plaintiff’s experts, including Compton, tested talc from Italy and Vermont and found asbestos.  (Ibid.)  The defense expert testified that Johnson & Johnson’s process ensured asbestos-free talc.  (Id. at p. 811.)  The court concluded, “which of these competing views to accept must be decided at trial” because the case was more like Lyons than Berg.  (Id. at p. 811, 812.)  There was long term use of the baby powder by a plaintiff who was not exposed to any other source of asbestos, with expert testimony reporting positive test results from the mines used to source the talc.  (Id. at p. 815.)  This case could be more like Strobel if there was long term use of Gold Bond. 

2.         Unsupported Opinions

Second, Defendants argue Compton’s test results cannot support the conclusion that Montana talc contains asbestos because only 11% of the samples were positive for asbestos.  (Motion at p. 10.)  Defendants argue there is an analytical gap between the 11% positive rate and the conclusion that Gold Bond talc contained asbestos.  (Motion at p. 11.) 

The defendants in Strobel made this same argument.  (Strobel, supra, 70 Cal.App.5th at p. 808.)  In that case, Compton was the expert who testified that talc from the source mines contained asbestos, but his purpose was not to fill the gap.  (Ibid.)  There were other experts who testified about the presence of asbestos in the product at issue.  (Ibid.)  After the trial court granted summary judgment because the plaintiffs’ experts did not “link the harvesting of a known deposit of asbestos-contaminated talc ore from a particular mine through the milling process into a canister of JBP sold in stores during the exposure period” (id. at p. 809), the Court of Appeal reversed, holding that the evidence including “positive test results for the presence of asbestos in ore from the sources used to manufacture the product” was “enough to support more than a mere possibility that the accused product” caused the mesothelioma.”  (Id. at p. 815.) 

Defendants did not show that Plaintiffs are offering Compton to fill that gap, or if as in Strobel Plaintiffs have other experts to fill the gap.  If Compton’s purpose is to show “positive test results for the presence of asbestos in ore from the sources used to manufacture the product” (id. at p. 815), his testimony along with the testimony of other experts could be enough to fill the gap. 

Defendants did not show that an 11% positive rate for asbestos in talc from the source mine is, as a matter of law, too low for an expert to conclude the ultimate product contained asbestos.  Defendants seem to argue that the positive test rate would need to be above 50% before an expert could use that information to reach a conclusion about the presence of asbestos in the ultimate product.  But Defendants cited no authority that such a high positive rate is necessary.

3.         Unaccepted Methodology

Third, Defendants argue Compton used TEM to test for asbestos in talc, which is not generally accepted for testing talc, and did not use it correctly.  (Motion at p. 12.)  The critique of TEM as a testing methodology “goes to the weight and not the admissibility of the opinions offered by . . . . Dr. Compton confirming the presence of asbestos.”  (Strobel, supra, 70 Cal.App.5th at p. 812.)

The motion is denied without prejudice to a contemporaneous objection at trial.

Defendants’ MIL re SCAQMD

            This motion seeks to exclude all evidence and reference to South Coast Air Quality Management District complaint reports and notices because the documents are unauthenticated, hearsay, and did not pertain to properties where Jose Diaz worked. 

            Plaintiffs did not show the complaints and notices concerned the locations where Jose Diaz worked.  Based on the documents, it is not apparent which of the complaints, if any, had merit.  Many of the notices were for violations not at issue here or were for time periods when Jose Diaz was not working at a location where Defendants had performed asbestos removal.  The fact that the documents are not clear on their face indicates that if the documents were admitted, an undue amount of trial time would be spent explaining the context for the complaints and notices, the results of the complaints, and the meaning of the violations.  The prejudice, undue consumption of time, and potential for jury confusion outweigh any probative value.

            The motion is granted.

            The moving party is to give notice.