Judge: Laura A. Seigle, Case: 22STCV21416, Date: 2023-06-22 Tentative Ruling
Case Number: 22STCV21416 Hearing Date: June 22, 2023 Dept: 15
[TENTATIVE] ORDER RE MOTIONS IN LIMINE
Plaintiffs’ MIL Nos. 1-3
No
motions were filed.
Plaintiffs’ MIL No. 4
Plaintiffs
move to exclude statements to the effect that everyone would have mesothelioma
if cosmetic talcum powder caused the disease.
This motion is too vague. In
addition, pursuant to the July 8, 2022 CMO, motions to exclude evidence and
arguments about causation 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.
Plaintiffs’ MIL No. 5
Plaintiffs
move to exclude references to any of Defendants’ employees, representatives,
and expert witnesses using Gold Bond talc powder as irrelevant. Defendants argue the fact their employees,
representatives, and experts used the product shows the product did not contain
asbestos and that Defendants did not know about any asbestos contamination.
Whether
a defense employee, representative, or expert used Gold Bond talc powder is
irrelevant, will confuse the jury, will consume an undue amount of trial time,
and will be more prejudicial than probative.
For example, that defense employees, representatives, and experts used
the product does not prove anything about its asbestos content. Darren Metcalf and a lot of other people also
used the product, but that does not prove the product did or did not contain
asbestos. Likewise, that they used the
product is not evidence that Defendants did not know about asbestos
contamination. Defendants could have
known the product contained asbestos but not informed their employees,
representatives, or the public. Allowing
such evidence will require spending time delving into the time period and
amount of each employee’s, representative’s, and expert’s use and what that
person knew about the product, all of which is not be particularly probative,
will be confusing to the jury, and will take up trial time in an already overly
long trial.
The
motion is granted.
Plaintiffs’ MIL Nos. 6-12
No
motions were filed.
Plaintiffs’ MIL No. 13
Plaintiff
moves to exclude evidence that Darren Metcalf or any family member smoked. The motion is granted as to argument that
smoking evidence is relevant to failure to warn claims. Smoking cigarettes (which are highly
addictive) is not similar to using asbestos-containing products (unlikely to be
highly addictive), such that the evidence has little probative value regarding
whether Metcalf would have followed warnings about products containing
asbestos. The motion is otherwise denied
as the evidence may be relevant to Plaintiff’s life expectancy.
The
motion is granted in part and denied in part without prejudice to objections at
trial.
Plaintiffs’ MIL No. 14
Plaintiffs
move to exclude references to the federal litigation Bell v. American
International Industries, Inc. and a workers compensation claim filed by
Betty Bell. Plaintiffs also move to
exclude arguments that Jaqueline Moline and Theresa Emory made false statements
in articles that included data about Bell.
If
Plaintiffs rely on Moline’s or Emory’s publications that includes Bell’s data,
Defendants have the right to cross-examine Moline and Emory (assuming they are
witnesses) or the other experts relying on those articles about Moline’s and
Emory’s analysis and data in the articles, including the data about Bell.
However,
the decision in Bell v. American International Industries that Moline’s and
Emory’s articles are flawed is not admissible because the unpublished federal
district court’s decision has no preclusive effect in California state court. Likewise, the workers compensation decision has
no preclusive effect here. Allowing
evidence of those decisions will likely confusing the jury and lead them to
believe those decisions have conclusively established the issues. Also, the parties would spend time explaining
the background of the federal district court case and workers compensation
decision, Bell’s claims in those proceedings, and differences and similarities
of those proceedings with this case.
This would consume an undue amount of time in an already overly long
trial. Defendants can cross-examine the
experts about the Moline and Emory articles and the reliability of the data
used in those articles without reference to the Bell litigation and
decision and workers compensation decision.
The
motion is granted in part as to the Bell v. American International
Industries litigation and decision and the decision on the workers compensation
claim, and otherwise is denied.
Plaintiffs’ MIL No. 15
No
motion was filed.
Plaintiffs’ MIL No. 16
Plaintiffs seek to
exclude evidence of a procedure called talc pleurodesis as not relevant to
causation and irrelevant, prejudicial, and confusing to the jury. If Darren Metcalf had this procedure, the
motion is denied without prejudice to an objection at trial. If he did not have this procedure, the motion
is granted as the evidence would require an undue amount of trial time and
confusing medical evidence explaining the purposes of the procedure and when
and how it is used.
Plaintiffs’ MIL Nos. 17-23
No
motions were filed.
Plaintiffs’ MIL No. 24
Plaintiffs
seek to preclude arguments that US Pharmacopeia (“USP”) is a government body
and that its talc monograph is a government regulation because, according to
Plaintiffs, those statements are not true.
Defendants contend the USP is an official compendium of standards for
drugs recognized by Congress and that FDA regulations incorporate its
standards.
That
one side believes the other side’s position is untrue is not a basis to exclude
that position. In addition, Plaintiffs’
motion is vague about what “a government body” is. Plaintiffs cite USP’s website stating it is
an independent non-profit organization. Defendants
refer to a federal case stating USP is “an independent compendium of drug
standards whose authority is recognized by reference in federal law” and citing
federal regulations mandating compliance with at least certain requirements of
USP. (Medical Center Pharmacy v.
Mukasey (2008) 536 F.3d 383, 388, n. 2.)
So USP is something more than a typical non-profit. It has authority under federal law to determine
what a “drug” and “device” is and to establish standards. (21 U.S.C. §§ 321 (g), (h), (j).) Likewise, Plaintiffs are vague about “monograph.” Federal law establishes the USP as an
“official compendium” that sets standards for drugs. (21 U.S.C. § 321 (j).) If a “monograph” is part of that “official
compendium”, then it is recognized by federal law. In sum, the motion is too vague.
If
Defendants argue at trial that US Pharmacopeia is a government body and that
its talc monograph is a government regulation, then Plaintiffs can cross-examine
Defendants’ witnesses about the basis for those statements. If Defendants fail to prove elicit any
evidence at trial to support those statements, Plaintiffs can point out that
deficiency in closing arguments.
The
motion is denied without prejudice to objections at trial.
Plaintiffs’ MIL Nos. 25-26
No
motions were filed.
Plaintiffs’ MIL No. 27
Plaintiffs
move to exclude evidence about Johnson & Johnson’s complaints against
Jaqueline Moline, Theresa Emory, Richard Kradin, and John Maddox filed in the
Johnson & Johnson bankruptcy, in which Johnson & Johnson alleged they
had disparaged and made false statements about Johnson & Johnson’s
products. Because the federal court
dismissed the bankruptcy case, there was no ruling on those complaints.
The
fact that Johnson & Johnson filed the complaints and alleged Moline, Emory,
Kradin and Maddoxi made false and disparaging statements has no relevance. Anyone can file a lawsuit claiming someone
committed fraud, and the fact of the filing does not mean the fraud claims have
any merit. Allowing evidence that
Johnson & Johnson filed the complaints will turn this trial into a trial of
Johnson & Johnson’s fraud claims – Defendants will try to prove the Johnson
& Johnson fraud claims were true, and Plaintiffs will try to prove they
were false. This will take an undue
amount of time and will confuse the jury about what is really at issue in this
case.
While
Defendants can cross-examine Moline (assuming she is a witness) and any expert
that relies on her articles about the bases for her statements in the articles,
the motion is granted as to the Johnson & Johnson complaints filed in the
bankruptcy case.
Defendants’ MIL Nos. 1-5
The
defendant making these motions settled.
Defendants’ MIL Nos. 6-15
No
motions were filed.
Defendants’ MIL Nos. 16-17
The
defendant making these motions settled.
The
moving party is to give notice.