Judge: Laura A. Seigle, Case: 22STCV07322, Date: 2022-10-10 Tentative Ruling

Case Number: 22STCV07322    Hearing Date: October 10, 2022    Dept: 15

[TENTATIVE] ORDER RE MOTIONS IN LIMINE

Plaintiffs’ MIL Nos. 1-15

            Plaintiff did not file these motions.

Plaintiffs’ MIL No. 16

            Plaintiff Ruth Martin moves to exclude testimony from Defendant Whittaker, Clark & Daniels, Inc.’s witnesses Dennis St. George and Theordore Hubbard as lacking personal knowledge.  Plaintiff argues George started working at Defendant in 2004 and therefore has no personal knowledge about Defendant before that date.  Plaintiff argues Hubbard started working at Defendant in 1978 and therefore has no personal knowledge about Defendant before that date.  Plaintiff argues that anything George and Hubbard heard from other people is hearsay.

            This motion is too vague.  The court cannot rule as a matter of law that anything a person learns from another person is automatically hearsay.  Sometimes an out-of-court statement is not offered for the truth of the matter and therefore is not hearsay.  Sometimes an out-of-court statement falls within an exception.  For example, if documents are admitted as business records, a witness could testify about those documents without falling afoul of the hearsay rule.  If at trial Plaintiff beliefs a question calls for hearsay, Plaintiff should object to that specific question at that time.  Similarly, if at trial a witness is asked about something about which he lacks personal knowledge, Plaintiff should object at that time.

            As for specific deposition testimony that Plaintiff believes is objectionable, Plaintiff should object to that testimony using the page/line designation and objection process, pursuant to the July 8, 2022 CMO and August 2022 Amendment.

            The motion is denied without prejudice to objections at trial.

Plaintiffs’ MIL No. 17

            Plaintiff Ruth Martin moves to exclude all evidence she or her family smoked as irrelevant and prejudicial. 

The motion is granted as to argument that smoking evidence is relevant to failure to warn claims.  Defendants did not show that smoking cigarettes (which are highly addictive) is similar to working with or using asbestos-containing products (unlikely to be highly addictive), such that the evidence has any probative value regarding whether Plaintiff would have followed warnings about products containing asbestos. 

The motion is granted as to Plaintiff’s family’s smoking history.  Evidence about whether other people in her family smoked is too tangential and will consume an undue amount of time.

            The motion is otherwise denied as the evidence may be relevant Plaintiff’s life expectancy.

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

Defendants’ MIL Nos. 1-13, 15-16

            Defendants did not file these motions.

Defendants’ MIL No. 14

            Defendant Whittaker Clark & Daniels, Inc. seeks 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 Defendant 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 unless and until Plaintiff establish that someone in the appropriate position at Defendant during the relevant time saw the articles.

Defendants’ MIL No. 17

            Defendant Stater Bros. Markets moves to exclude newspaper articles from the New York Times and Washington Post about asbestos in powders as hearsay and irrelevant.  If the articles are offered to show knowledge or notice, they are not hearsay.  But Plaintiff would first need to establish that the articles were actually published and that someone in the appropriate position at Defendant saw the articles during the relevant time period.

            The motion is granted unless and until Plaintiff establish that the articles are actually published and that someone in the appropriate position at Defendant during the relevant time saw the articles.

Defendants’ MIL No. 17

            Defendant Chattem, Inc. moves to exclude evidence about Chattem’s liability before it purchased Gold Bond in 1996 because the April 10, 1996 Asset Purchase Agreement states Chattem has liability only for claims “which arise from use of the Products and which occur on or after the Closing Date, regardless of when such Liability Claim is brought.”  (Asset Purchase Agreement, § 9.2.)  Plaintiff argues that Chattem also assumed certain liabilities for personal injuries arising from the use of products occurring before the closing date, citing to Chattem’s 1996 SEC filings.  The SEC filings state Chattem “assumed certain liabilities of approximately $500,000.”  The filing do not state what those liabilities were.

            At this point, the evidence is disputed about the extent of Chattem’s assumption or non-assumption of liability for injuries arising from pre-1996 use of products.  The issue of the extent of Chattem’s liability is a damages issue and should be addressed in the jury instructions and on the verdict form. 

            The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 18

            Defendant Chattem, Inc. moves to exclude evidence that in 2020 it started using cornstarch instead of talc in Gold Bond as irrelevant and prejudicial.  Plaintiff alleges she was exposed through her husband’s use of the product from “[a]pproximately 1987-2010s.”  (Complaint at p. 33.) 

            Because Chattem’s use of cornstarch occurred after Plaintiff’s exposure to Gold Bond, it is not evidence that Chattem knew about the alleged asbestos in talc at the time of Plaintiff’s exposure.  The evidence is more prejudicial than probative and will consume undue time explaining the reasons for the switch.

            The motion is granted.

            The moving party is to give notice.