Judge: Laura A. Seigle, Case: 22STCV00924, Date: 2022-08-01 Tentative Ruling

Case Number: 22STCV00924    Hearing Date: August 1, 2022    Dept: 15

[TENATIVE] ORDER RE MOTIONS IN LIMINE

Plaintiffs’ MIL No. 1

            Plaintiffs move to exclude evidence relating to a “but for” causation test.  Pursuant to the July 8, 2022 CMO, this motion is deemed made and denied so long as the trial court intends to use CACI 435.  Plaintiffs did not show good cause to depart from this order. 

This motion is denied so long as the trial court intends to use CACI 435 and without prejudice to a contemporaneous objection at trial.   

Plaintiffs’ MIL No. 2

            Plaintiffs seek an order excluding the caption of the complaint and references to other defendants.  The court cannot exclude references to defendants who will be part of the trial.  If the motion seeks to exclude reference to defendants not involved in the trial, then pursuant to the July 8, 2022 CMO, the motion is deemed made and denied without prejudice to a contemporaneous objection at trial.  Plaintiffs did not show good cause to depart from this order. 

Pursuant to the July 8, 2022 CMO, a motion to modify the caption on documents that may be presented to the jury to refer only to defendants remaining in this case is deemed made and granted but such order does not affect any allocation of fault under Proposition 51.  Therefore, this part of the motion is granted.

The motion is granted in part and denied in part without prejudice to a contemporaneous objection at trial.

Plaintiffs’ MIL No. 3

            Plaintiffs move to exclude speculation about exposures. This motion is too vague.  Plaintiffs do not identify specific testimony to be excluded.  Pursuant to the July 8, 2022 CMO, a motion for exclusion of speculative evidence is deemed made and denied without prejudice to a contemporaneous objection at trial.  Plaintiffs did not show good cause to depart from this order.

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

Plaintiffs’ MIL No. 4

            Plaintiffs move to exclude evidence or comments about any speculative genetic cause of the mesothelioma.  This motion is too vague.  Plaintiffs do not identify specific testimony to be excluded.  Pursuant to the July 8, 2022 CMO, a motion for exclusion of speculative evidence is deemed made and denied without prejudice to a contemporaneous objection at trial.  Plaintiffs did not show good cause to depart from this order.

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

Kaiser MIL No. 1

            Kaiser moves to exclude deposition testimony from John Crum and Brentwood Crosby pursuant to Berroteran.  Hearsay and Berroteran objections are handled in the deposition designation process.  Kaiser also objects that the deposition testimony is hearsay, prejudicial and irrelevant.  Kaiser should raise these objections in the deposition designation process. 

The parties are to follow the CMOs and this court’s orders regarding deposition designations.  Objections to deposition designations will be decided by this court.  Specifically, by August 5, 2022 at 4 p.m., the parties are to deliver to Dept. 15 an updated USB drive containing an index of designations and the relevant documents for Tier 1 designations (objections, responses, and marked transcripts).  The parties are to send an email asap to stran1@lacourt.org if the claims against a defendant are settled or any designations are withdrawn.

            Therefore, the motion is taken off calendar.

Kaiser MIL No. 2

            Kaiser moves to exclude all references to any regulatory bans regarding asbestos-containing products, including foreign bans on the importation on chrysotile asbestos.

            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 work places 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.

Kaiser MIL No. 3

            Kaiser seeks to preclude Plaintiffs from showing the jury the contents of publications relied upon by experts because the publications are unreliable, irrelevant, unauthenticated and hearsay.  This motion is too vague.  Some of the information upon which an expert relies may end up being otherwise admitted.  In addition, if an expert establishes the document is general background information relied upon by experts in the field, the document and testimony about its contents may be admissible.  (People v. Veamatahau (2020) 9 Cal.5th 16, 22.) 

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

Kaiser MIL No. 4

            Kaiser moves to exclude evidence of a position statement from the Joint Policy Committee of the Societies of Epidemiology published on July 24, 2012 as hearsay, irrelevant and more prejudicial than probative.

            This statement is hearsay and not subject to an exception.  It was published long after the alleged exposure occurred and therefore is not evidence of any defendants’ knowledge or notice at the time of the exposure.  The document was prepared by a body established “to coordinate and unify joint policy actions globally,” and the document itself states it is a call for political action against asbestos rather than an unbiased scientific document.  Explaining the origins and development of the document would consume an undue amount of time and confuse the jury.

            Therefore, the motion is granted.

Kaiser MIL No. 5

            Kaiser seeks to exclude evidence of a 1989 proposed EPA ban on asbestos products as hearsay and not relevant.  If the proposed EPA ban was publicized, the evidence may be relevant to Defendant’s notice or knowledge.

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

Kaiser MIL No. 6

            Kaiser moves to exclude evidence of an amicus brief and article by Laura S. Welch.  Pursuant to the July 8, 2022 CMO, this motion is deemed made and granted as to the amicus brief but not the article.  No party showed good cause to depart from that order. 

Therefore, the motion is granted as to the amicus brief and denied as to the article without prejudice to a contemporaneous objection at trial.

Kaiser MIL No. 7

            Kaiser seeks to exclude evidence about dust levels based on witnesses’ visual observations.  A witness has personal knowledge of what the witness observed firsthand.  Evidence that Plaintiffs observed dust may be relevant to the existence of asbestos fibers in the air and how Plaintiffs were exposed to asbestos. 

            Kaiser seems also to seek exclusion of expert opinions about dust in the air.  But Kaiser does not identify the expert who based his or her conclusions on the quantity of dust in the air or on another witness’s observations of dust in the air.  At this point, this motion is vague. 

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

Kaiser MIL No. 8

Kaiser moves to exclude reference to Plaintiffs and others as victims, contending the use of the term is more prejudicial than probative.  Plaintiffs do not identify any need to use the terms “victim” or “victims.”  The use of the term “victim” suggestions someone at fault for harming the victim.  Thus, while the prejudice might not be great, the relevance is negligible. 

The motion is granted.

Lennox MIL No. 1

            Lennox moves to exclude evidence that it is liable for parts it did not supply or manufacture that were later used by third parties as replacement parts in Lennox products.  This motion is too vague.  It does not identify specific evidence to be excluded. 

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

Lennox MIL No. 2

            Lennox seeks an order about timing for witness, document and deposition designation disclosures.  This is not a proper motion in limine.  The trial court will determine the time for disclosing witnesses and exhibits.  The parties are to follow the CMOs and this court’s orders regarding deposition designations.  Objections to deposition designations will be decided by this court.  Specifically, by August 5, 2022 at 4 p.m., the parties are to deliver to Dept. 15 an updated USB drive containing an index of designations and the relevant documents for Tier 1 designations (objections, responses, and marked transcripts).  The parties are to send an email asap to stran1@lacourt.org if the claims against a defendant are settled or any designations are withdrawn.

            The motion is denied.

Lennox MIL No. 3

            Lennox moves to exclude lay witness testimony about whether products released asbestos fibers.  This motion is too vague as it does not identify any specific testimony to be excluded.  A witness can testify about what he or she personally observed.  For example, a witness can testify that when he sanded a product, there was dust in the air.

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

Lennox MIL No. 4

            Lennox moves to exclude letters from Johns-Manville as unauthenticated and hearsay.  Lennox did not provide copies of the letters and asserts with no evidence that they cannot be authenticated.  Based on this vague motion, the court cannot determine who sent and received the letters, who may be able to authenticate them, or whether there has been deposition testimony in the past from people who authenticated the letters and/or established them as business records.  Nor can the court decide at this point the purpose for which the letters may be offered at trial.  If a party seeks to introduce these letters at trial without first authenticating them and establishing they are not hearsay or are subjection to a hearsay exception, Lennox should then object.

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

W.W. Henry MIL No. 1

            Defendant moves to exclude any reference to other lawsuits or verdicts.  This motion is too vague.  It is likely deposition transcripts from other lawsuits will be read or played at the trial.  To the extent the motion seeks to exclude the amounts of any settlement, judgment or verdict in any other asbestos litigation, 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 in part and denied in part without prejudice to a contemporaneous objection at trial.

W.W. Henry MIL No. 3

            See Kaiser MIL No. 2.

W.W. Henry MIL No. 4

            See Kaiser MIL No. 6.

W.W. Henry MIL No. 5

            No motion was filed.

W.W. Henry MIL No. 6

            No motion was filed.

W.W. Henry MIL No. 7

            Defendant seeks to preclude reference to any corporate representative 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.

W.W. Henry MIL No. 8

            See Kaiser MIL No. 7.

W.W. Henry MIL No. 9

            See Kaiser MIL No. 8.

W.W. Henry MIL No. 10

            Defendant seeks to exclude evidence about knowledge based on trade associations of which Defendant was not a member.  Pursuant to the July 8, 2022 CMO, this motion is deemed made and denied without prejudice to a contemporaneous objection at trial.  Defendant did not show good cause to depart from this order.

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

W.W. Henry MIL No. 11

            Defendant seeks to exclude evidence about its compliance or non-compliance with 1972 OSHA labeling regulations because Defendant had no obligation under those regulations.  The regulations may be relevant to Defendant’s notice or knowledge.  The Court cannot determine on a motion in limine that Defendant had no duty to comply with the regulations.

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

W.W. Henry MIL No. 12

            Defendant move to exclude the publication “Doubt is Their Product.”  Pursuant to the July 8, 2022 CMO, this motion is deemed made and granted.  Plaintiffs did not show good cause to depart from this order. 

            The motion is granted.

W.W. Henry MIL No. 13

            Defendant moves to exclude testimony that every exposure to asbestos can cause injury.  Defendant does not identify any specific testimony at issue, making this motion too vague.  To the extent Defendant is concerned that an expert will testify that any exposure is a substantial factor, that motion is deemed made and denied without prejudice to a contemporaneous objection at trial pursuant to the July 8, 2022 CMO.

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

W.W. Henry MIL No. 14

            No motion was filed.

W.W. Henry MIL No. 15

            See Kaiser MIL No. 5.

W.W. Henry MIL re Products

            Defendant moves to exclude evidence about its products other than those at issue in this case as irrelevant and more prejudicial than probative.  This motion does not identify the particular products to be excluded and is too vague.

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

            The moving party is to give notice.