Judge: Laura A. Seigle, Case: 22STCV04682, Date: 2022-12-05 Tentative Ruling

Case Number: 22STCV04682    Hearing Date: December 5, 2022    Dept: 15

[TENTATIVE] ORDER RE MOTIONS IN LIMINE

Plaintiff’s MIL No. 1

            Plaintiff seeks to exclude all expert opinions relying on studies of mines in France, Austria and Norway that are different from the mines that are the source of the talc at issue in this case.  Defendants argue that the studies from France, Austria and Norway are evidence that talc increases the risk of mesothelioma, and that some of the studies address Italian mines which are sources of talc in the products in this case.

            The motion is too vague and overbroad in seeking to exclude all studies of talc from mines in France, Austria, and Norway, especially if some of those studies also analyze talc from mines that supplied talc at issue here.  Plaintiff can cross examine the experts about differences between the mines in France, Austria and Norway and can argue to the jury that they should give little or no weight to the experts’ opinions because they relied on studies that do not focus on the mines at issue here.

            However, if an inordinate amount of time is spent on mines that are not the source of talc, Plaintiffs can object under section 352 at trial.

            The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 1

            Defendants seek to exclude evidence of other diseases caused by talcum powder including ovarian cancer as irrelevant and prejudicial.  Plaintiff argues that asbestos has been implicated as a cause of ovarian cancer, which is relevant to knowledge about the hazards of talcum powder products and the dangers of asbestos.

            Evidence that asbestos in talcum powder causes ovarian cancer could be relevant to knowledge of dangers of asbestos and the duty to warn.  The motion is granted in part as to any disease that is not allegedly caused by asbestos in the talcum powder.  The motion is denied as to cancer caused allegedly caused by asbestos in talcum powder without prejudice to objections at trial.

Defendants’ MIL No. 2

            Defendants seek to exclude evidence that Johnson & Johnson recalled baby powder in 2019 and discontinued sales in 2020 as irrelevant, unduly prejudicial, and confusing.  Johnson & Johnson is not a party in this case.  These events occurred after the alleged exposure here, and therefore these events have little probative value.  Allowing the evidence would result in much trial time focusing on Johnson & Johnson, which is not a party, and the reasons for its actions, and would be confusing to the jury.

            The motion is granted.

Defendants’ MIL No. 3

Defendants move to exclude all references to the IWGACP formed in 2018 and its recommendations and papers as irrelevant, misleading, and hearsay.  If an expert establishes that this is the type of background information relied upon by experts, the evidence may be relevant and admissible even if hearsay.  Defendant can then cross-examine the expert on the fact that the work is only preliminary.

            The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 4

            Defendants move to exclude documents from Johnson & Johnson, which is not a part in this case.  Defendants argue Plaintiff will attempt to use this evidence to impute knowledge to Defendants.

This motion is too vague.  If the evidence from Johnson & Johnson is otherwise admissible (e.g., Plaintiff can establish its authenticity and it is not subject to the hearsay rule), the evidence might be relevant to showing general knowledge held by members of the industry.  Further, the evidence could include communications that Defendants sent or received.  Because Defendants did not identify any specific piece of evidence to be excluded, it is impossible to determine potential relevance.

            The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 5

Defendants seek to preclude as hearsay a 2014 article by Gordon, Millette, and Fitzgerald because none of them are experts in this case, they were paid for the article, and they have been excluded in other cases.  That they were paid as part of litigation to draft the article goes to the weight to be given the article. 

An expert may rely on hearsay and tell the jury in general terms that he or she did so.  If an expert testifying in this case establishes that this article is the type of background information relied upon by experts in the field, the evidence may be relevant and admissible even if hearsay.  Defendants also argue the 2014 article is prejudicial because Defendants cannot cross-examine the authors.  That is the case with many scientific documents that an expert may rely on. 

            The motion is granted in part as to the specific contents of the article unless an expert establishes a basis for its admissibility.  Otherwise the motion denied without prejudice to objections at trial.

Defendants’ MIL No. 6

            No motion was filed.

Defendants’ MIL No. 7

            Defendants seek to exclude testimony from lay witnesses about exposure to asbestos and the asbestos content of talc products on the ground that they are not qualified.  Pursuant to the July 8, 2022 CMO, this motion is deemed made and denied.   Defendants did not show good cause to depart from this order.  Therefore, the motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 8

Defendants seek to exclude a paper written by Dr. Jacqueline Moline because she has refused to discuss her paper and it was created for litigation.  The paper is hearsay, but an expert can rely on hearsay and tell the jury generally about the hearsay.  The expert cannot tell the jury the contents of the hearsay unless the expert first establishes that the paper is the type of general background information relied upon by experts in the field.

That Moline wrote the paper as part of litigation goes to the author’s potential bias and the weight for the jury to give to the article.  Moline is not an expert in this case and will not be testifying.  Therefore, that she refused to answer questions about the paper at deposition in other cases does not bear on this matter. 

            Defendants argue the paper ignores other cases and is selective about the information it uses.  If some expert in this case testifies that he or she relied on the Moline paper, Defendants can cross-examine the expert about the other cases that the paper ignore.  This issue goes to the weight to be given the paper and opinions based on the paper.

            The motion is granted in part as to the specific contents of the paper unless an expert establishes a basis for its admissibility.  Otherwise the motion denied without prejudice to objections at trial.

Defendants’ MIL No. 9

            Defendants move to preclude the use of the term “asbestos-containing” and similar terms as irrelevant and prejudicial because Mennen products do not contain asbestos and “asbestos-containing” is a term of art.  Plaintiffs allege otherwise.  This entire case is about whether Mennen products, among others, contained asbestos.  Plaintiff’s experts are likely to testify that the products at issue “contained asbestos.”  The term “asbestos-containing” is not inherently prejudicial.

            The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 10

            Defendants move to exclude evidence of other lawsuits as not relevant and prejudicial.  To the extent this motion seeks to preclude comments that other plaintiffs have filed other lawsuits against Defendants alleging asbestos exposure, the motion is granted because such references would be irrelevant to this case and unduly prejudicial to Defendants.  However, to the extent the motion seeks to exclude evidence used in other cases, the motion is denied as too vague.  For example, testimony from a deposition in another case might be admissible.  Or an exhibit used in another case may also be admissible in this case.

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

Defendants’ MIL No. 11

            Defendants move to exclude documents from Unilever, which has been dismissed from this case.  Defendants argue Plaintiff will attempt to use evidence from Unilever to impute knowledge to another defendant.

This motion is too vague.  If the evidence from Unilever is otherwise admissible (e.g., Plaintiff can establish its authenticity and it is not subject to the hearsay rule), the evidence may be relevant to showing general knowledge held by members of the industry.  Further, the evidence could include communications that Defendants sent to or received from Unilever.  Because Defendants did not identify any specific piece of evidence to be excluded, it is impossible to determine potential relevance.

            The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 12

Defendants seek to preclude memos from Heinz Eiermann and Robert Schaffner as hearsay and irrelevant.  Plaintiff argues the memos go to notice and knowledge.

            If the memos are used for a non-hearsay purpose, evidence of the memos may be admissible.  An expert may rely on inadmissible hearsay, but may not tell the jury the contents of the hearsay unless the hearsay evidence is otherwise admissible and admitted.  If Plaintiff first establishes that someone in the appropriate position at Defendants saw the articles during the relevant time period, the articles could be admissible for the non-hearsay purpose of notice or knowledge.

The motion is granted as to the contents of the memos unless and until Plaintiff establishes that someone in the appropriate position at Defendants during the relevant time saw the articles.

Defendants’ MIL No. 13

            Defendants move to preclude evidence about “other consumer talcum powder (make-up)” products not at issue here as irrelevant and prejudicial  This motion is too vague.  Defendants do not identify the specific evidence to be excluded.  The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 14

            See Defendants’ MIL No. 9 above.

Defendants’ MIL No. 15

Defendants move exclude evidence of commentary, actions and decisions by OSHA and all other agencies on the causal connection between exposure to asbestos and the development of disease. 

Plaintiffs did not show that there is any evidence any defendant was aware of international or foreign agencies commentary about asbestos exposure.  Allowing that evidence will consume an undue amount of trial time and 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 knowledge and notice. 

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

Defendants’ MIL No. 16

Defendants moves to exclude arguments that “every exposure” is enough to cause disease.  This motion is too vague. 

The motion appears to extend beyond these specific phrase 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.  Defendants did not show good cause to depart from this order.

The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 17

            No motion was filed.

Defendants’ MIL No. 18

            Defendant Whittaker joins in Defendant Ralphs’ motion to exclude all references to regulatory bans.  But Ralphs never filed such a motion.  The court cannot rule on an unfiled motion.

Defendants’ MIL No. 19

            No motion was filed.

Defendants’ MIL No. 20

            Defendant Pfizer joins in Defendant Ralphs’ motion to exclude all references to other lawsuits.  But Ralphs never filed such a motion.  The court cannot rule on an unfiled motion.

Defendants’ MIL No. 21

            Defendant Pfizer joins in Defendant Ralphs’ motion for pre-disclosure of documents and witnesses.  But Ralphs never filed such a motion.  The court cannot rule on an unfiled motion.  Also, this is not a motion in limine because it does not seek to exclude evidence.  It concerns trial procedures that should be discussed with the trial court.

Defendants’ MIL No. 22

            No motion was filed.

            The moving party is to give notice.