Judge: Laura A. Seigle, Case: 22STCV05549, Date: 2024-02-09 Tentative Ruling
Case Number: 22STCV05549 Hearing Date: February 26, 2024 Dept: 15
[TENTATIVE] ORDER RE MOTIONS IN LIMINE
Plaintiffs’ MIL No. 1
This motion seeks to
exclude improper statements during voir dire and improper arguments, including
questions about Covid, cancer, and corporations, expressing sympathy,
mentioning background exposure, referencing the government’s use of asbestos,
and mentioning nature or God.
As an
initial matter, this is several motions combined into one.
(a) Questions about Covid, cancer and
corporations: The trial court determines
the scope of voir dire and will give the attorneys the rules for that trial
court. If any attorney asks
inappropriate questions during voir dire, the other side should object at that
time. A motion in limine is not the
proper place to define the questions that can and cannot be asked in voir
dire. The motion is denied without
prejudice to objections at trial.
(b) Sympathy:
Plaintiffs cite no law prohibiting a defense counsel from briefly expressing
sympathy for a plaintiff. That is a
common occurrence. Statements of
attorneys are not evidence, as the court will instruct the jury. The motion is denied without prejudice to
objections at trial.
(c) Background exposure: An expert may be able to establish a
foundation for the existence and relevance of background asbestos. Also, pursuant to the July 8, 2022 CMO,
motions to exclude evidence as speculative or unsubstantiated are deemed made
and denied. Plaintiffs did not show good
cause to depart from that order. The
motion is denied without prejudice to objections at trial.
(d) Government’s use of asbestos: This is too vague. Scientific articles and studies relied upon
by experts could mention this use of asbestos, and an expert might be able to
establish a basis for relying on and describing such studies. The motion is denied without prejudice to
objections at trial.
(e) God or Mother Nature: The motion seeks to exclude any statements
that God or Mother Nature made asbestos. This motion is too vague. Scientific articles and studies relied upon
by experts could mention that asbestos is a naturally occurring mineral, and an
expert might be able to establish a basis for relying on and describing such
studies. Further, there might be
evidence that asbestos comes from mines, making it part of nature. The fact that it is naturally occurring is
not prejudicial. If a party starts
talking about God at trial, the opposing party can object at that time. The motion is denied without prejudice to
objections at trial.
Plaintiffs’ MIL No. 2
Plaintiffs move to
exclude evidence that other defendants were sued but are not at trial and the
contents of the complaint because it is not a judicial admission.
Pursuant to the July 8,
2022 CMO, a motion to modify the caption to refer only to defendants remaining
in the case is deemed made and granted but not to affect any allocation of
fault under Proposition 51. To the extent
the motion seeks to exclude any evidence of other defendants not at trial, the
motion is denied as too vague. For
example, a deposition testimony of a witness of another defendant may be
admissible, or evidence may be relevant for Proposition 51 purposes.
“ ‘The admission of fact
in a pleading is a “judicial admission.” ’
[Citation.] A judicial admission
in a pleading is not merely evidence of a fact; it is a conclusive concession
of the truth of the matter.
[Citation.] ‘Well pleaded
allegations in the complaint are binding on the plaintiff at trial.’ [Citation.]
‘The trial court may not ignore a judicial admission in a pleading, but
must conclusively deem it true as against the pleader.’ [Citation.]”
(Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 187.) Based on this case law, the complaint may
contain judicial admissions of fact. The
court therefore cannot conclude at this time that the complaint is
inadmissible.
The
motion is granted in part and denied in part without prejudice to objections at
trial.
Plaintiffs’ MIL No. 3
Plaintiffs move to
exclude evidence and arguments contradicting the law on causation. This motion is too vague as it does not
identify specific documents or evidence to be excluded. Also, under the July 8, 2022 CMO, motions to
exclude expert opinions about the term “substantial factor” are deemed made and
denied without prejudice to objections at trial. Plaintiffs did not show good cause to depart
from this order. The motion is denied
without prejudice to objections at trial.
Defendants’ MIL No. 1
Defendant Honeywell
International 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. 2
Defendant Honeywell International
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 if an 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. 3
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. 4
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. 5
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. 6
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. 7
Honeywell seeks to
exclude testimony and videos about William Longo and Richard Hatfield’s work
simulations because the simulations are not similar to Ronald Aglipay’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 Aglipay’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. 8
Honeywell moves to
exclude evidence of working conditions at its facilities as irrelevant and
unduly prejudicial because Ronald Aglipay 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. 9
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. 10
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. 11
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. 12
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. 13
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. 14
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. 15
See
No. 3 above.
Motion to Bifurcate
Defendant
Morse Tec moves to bifurcate punitive damages.
The motion is granted.
The moving party is to give notice.