Judge: Laura A. Seigle, Case: 22STCV22642, Date: 2023-06-20 Tentative Ruling

Case Number: 22STCV22642    Hearing Date: June 20, 2023    Dept: 15

Plaintiffs’ MIL No. 1

Plaintiffs move to exclude references to exposure to products from defendants eliminated by motions for summary judgment, pursuant to Code of Civil Procedure section 437c, subdivision (l).  That section states no other defendant “may attempt to attribute fault to, or comment on, the absence or involvement of the defendant who was granted” summary judgment.

            The motion is granted to the extent that Plaintiffs attempt to attribute fault to, or comment on, the absence or involvement of a defendant who was granted summary judgment.  Otherwise the motion is too vague.  For example, an admissible document could reference another defendant’s product and be relevant for a purpose other than attempting to attribute fault to a defendant eliminated by a motion for summary judgment. 

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

Defendants’ MIL No. 1

            Federal Mogul Asbestos Personal Injury Trust moves to exclude Plaintiffs’ punitive damages claims, conspiracy claim, and claims based on its intentional conduct.  Plaintiffs state they do not oppose.  Therefore, the motion is granted.

Defendants’ MIL No. 1

            Union Carbide seeks to exclude any mention of its relationship to Dow Chemical because that relationship developed after the events at issue in this case.  This motion is too vague.  If at trial Plaintiffs ask questions about Dow Chemical that are irrelevant, Defendant can object at that time.  The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 2

Federal Mogul Asbestos Personal Injury Trust seeks to exclude the use of its name because it exists solely to litigate asbestos cases concerning Fel-Pro products.  Plaintiffs state they do not oppose.  Therefore, the motion is granted.

Defendants’ MIL No. 2

Defendant Union Carbide seeks to exclude any reference to incidents where people died or were injured as a result of Union Carbide’s chemicals other than asbestos.  Incidents not involving asbestos are irrelevant, more prejudicial than probative and would be unduly time consuming.

            The motion is granted.

Defendants’ MIL No. 3

            No motion was filed.

Defendants’ MIL No. 4

            Defendants move 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.  Plaintiffs did not show 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.

Defendants’ MIL No. 5

            The defendant filing this motion settled.

Defendants’ MIL No. 6

            The defendant filing this motion settled.

Defendants’ MIL No. 7

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

Defendants’ MIL No. 8

Kaiser Gypsum moves to exclude arguments that there is no safe level of asbestos, and every exposure contributes to a cumulative dose as unsupported by science and contrary to the law.  This motion is too vague as Defendant does not identify any specific expert testimony to be excluded.   

In addition, the motion would exclude 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.  Defendant did not show good cause to depart from this order.

Defendant also argues OSHA and EPA reports are hearsay.  This motion is too vague as Defendant did not identify any specific report to be excluded.  If Plaintiffs ask to admit the reports for the truth of the matter asserted in them, Defendants can object at that time.  However, an expert may rely on the reports even if they are hearsay.

The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 9

            Defendant Kaiser Gypsum seeks 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.

Defendants’ MIL No. 10

Defendants move to preclude Plaintiffs’ telling the jury the contents of documents relied upon by experts because the documents are hearsay, unreliable, unauthenticated and irrelevant.  This motion is too vague.  Defendant did not identify any specific evidence to be excluded.  Also, some of the documents upon which the experts rely may be otherwise admissible.  And if an expert establishes the hearsay is general background information of the type relied upon by experts in the field, the hearsay may be admissible.  (People v. Veamatahau (2020) 9 Cal.5th 16, 22.) 

            The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 11

            Kaiser Gypsum moves 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 or witnesses observed dust may be relevant to the existence of asbestos fibers in the air and how Plaintiff was exposed to asbestos. 

            The motion is denied without prejudice to objection at trial.

Defendants’ MIL No. 12

Kaiser Gypsum seeks to exclude reference to Plaintiffs 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.

Defendants’ MIL No. 13

Kaiser Gypsum seeks to exclude testimony and videos from William Longo and Richard Hatfield about work simulations because the simulations are not similar to Plaintiff’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.  (Motion at p. 4-5, 11.)  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.)

            The motion contends Plaintiff’s experience being near drywall was different than a small, sealed chamber.  At trial, Defendant can cross-examine the experts about the similarities and differences of Plaintiff’s experience to a small, sealed chamber and argue the jury should give the videos no weight because of the different conditions. 

            Defendant filed a declaration attaching numerous rulings by other courts, including federal courts and other state courts, excluding the evidence.  The exclusion of expert evidence is governed by different law in federal court and other states.  Many of the exhibits are impossible to read because they have been copied so many times.

            The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 14

            Kaiser Gypsum moves to exclude the argument that any product contained chrysotile asbestos contaminated with tremolite.  Defendant contends this argument is speculative.  Pursuant to the July 8, 2022 CMO, this motion about speculative evidence is deemed made and denied subject to objections at trial.  Also, the motion is too vague as it does not identify any specific testimony or exhibit to be excluded.

            The motion is denied without prejudice to objections at trial.

Defendants’ MIL Nos. 15-32

            No motions were filed.

Defendants’ MIL Nos. 33, 34, 35

            Defendant Pfizer Inc. moves to exclude documents from other lawsuits about sales from Whittaker Clark & Daniels, Cosmetic Specialties, and Luzenac America  to other entities in the 1980s to 2000s, after Plaintiff claims he was exposed.  Plaintiffs state they do not oppose.  Therefore the motions are granted.

Defendants’ MIL Nos. 36-37

            No motions were filed.

Defendants’ MIL No. 38

            Defendant Pfizer moves to exclude all evidence about diseases caused by talc other than mesothelioma, such as ovarian cancer.  This case is not ovarian cancer or diseases other than mesothelioma.  This is not a case where the plaintiff alleges failure to warn that the product could cause ovarian cancer or diseases other than mesothelioma.  The evidence, especially about ovarian cancer, would be more prejudicial than probative, would confuse the jury, and would consume an undue amount of time in a trial that is already much too long.

            The motion is granted.

Defendants’ Motion to Bifurcate

            Defendants move to bifurcate the punitive damages phase of the trial.  The motion is granted.

            The moving party is to give notice.