Judge: Laura A. Seigle, Case: 22STCV24055, Date: 2023-02-14 Tentative Ruling
Case Number: 22STCV24055 Hearing Date: February 14, 2023 Dept: 15
[TENTATIVE] ORDER RE MOTIONS IN LIMINE
Plaintiff’s MIL No. 1
Plaintiff
moves to exclude statements about background asbestos as prejudicial,
speculative, and irrelevant. 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 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.
Plaintiff’s MIL No. 2
Plaintiff
seeks to preclude Defendants and defense counsel from having any contact with
prospective jurors. This is impossible. Defense counsel have to have contact with
prospective jurors – how else are they supposed to participate in voir dire and
the trial if they cannot ask prospective jurors questions and speak to the jury? As for contact outside the courtroom, a motion
in limine is not the proper mechanism to ask the court to order opposing
counsel to follow the rules of ethics and the law. Plaintiff has not shown any grounds for
believing Defendants and defense counsel will contact jurors outside the
courtroom before the jury is discharged.
Plaintiff
also seeks to prevent defense counsel from stating they feel sympathy for
Plaintiff and asking certain voir dire questions as irrelevant and prejudicial evidence.
Plaintiff cites no law prohibiting a
defense counsel briefly to express sympathy for a plaintiff. That is a common occurrence. 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. Finally the statements of attorneys are not
evidence, as the court will instruct the jury.
The
motion is denied.
Plaintiff’s MIL No. 3
Plaintiff
moves to exclude evidence of his pre-existing conditions as irrelevant. This motion is denied because his health
condition apart from mesothelioma may be relevant to his life expectancy.
The
motion is denied without prejudice to objections at trial.
Plaintiff’s MIL No. 4
Plaintiffs
seek to exclude evidence not disclosed in discovery. Pursuant to the July 8, 2022 CMO, this motion
is deemed made and denied. Plaintiffs
did not show good cause to depart from this order.
Plaintiffs
also seek to preclude Defendants from offering evidence in support of certain
affirmative defenses, arguing that Defendants have no evidence to support those
affirmative defenses. This is an
improper motion for summary adjudication of Defendants’ affirmative defenses.
The
motion regarding evidence not disclosed in discovery is denied without
prejudice to objections at trial. The
motion to preclude evidence of affirmative defenses is denied.
Plaintiff’s MIL No. 5
Plaintiff
seeks to preclude the use of the terms “dissolved” or “defunct” in reference to
Defendants. This motion is too
vague. Plaintiff did not identify any
Defendant that is dissolved or defunct or shown that this is an issue in this
case. In addition, the court cannot at
this point determine that the fact that a defendant is dissolved is
irrelevant. For example, if Plaintiff
argues a defendant should have taken some action at a point in time (e.g.,
recall products), evidence that the defendant had been dissolved at that point
in time could be relevant to explain the lack of action.
The
motion is denied without prejudice to an objection at trial.
Plaintiff’s MIL No. 6
Plaintiff
moves to exclude reference to prior settlements. Pursuant to the July 8, 2022 CMO, this motion
is deemed made and granted. Therefore,
the motion is granted.
Plaintiff’s MIL No. 7
Plaintiff
moves to exclude speculative testimony about exposure. Pursuant to the July 8, 2022 CMO, this motion
is deemed made and denied. Plaintiff did
not show good cause to depart from this order.
The
motion is denied without prejudice to an objection at trial.
Plaintiff’s MIL No. 8
Plaintiff seeks to
exclude evidence of collateral source benefits.
Pursuant to the July 8, 2022 CMO, this motion is deemed made and denied. Plaintiff did not show good cause to depart
from this order.
The motion is denied
without prejudice to an objection at trial.
Plaintiff’s MIL No. 9
No
motion was filed.
Plaintiff’s MIL No. 10
No
motion was filed.
Plaintiff’s MIL No. 11
Plaintiff
moves to exclude evidence based on the Berman-Crump research methodology
because it is weak, inadequate and has been rejected by the EPA, and a report
based on that methodology was not peer-reviewed and was not a final draft. If an expert establishes at trial that the
methodology and/or report are the type of material relied upon by experts in
the field, the evidence may be admissible.
At this point, the court cannot determine that. That the methodology was rejected by the EPA
and the report not peer-reviewed and not final go to the weight to be given the
expert’s opinions.
The
motion is denied without prejudice to objections at trial.
Plaintiff’s MIL No. 12
Plaintiff
moves to exclude evidence of asbestos in consumer products not at issue. This motion is too vague. Evidence of asbestos in other products could
be relevant to notice or knowledge or may be the type of evidence an expert
relies upon.
The
motion is denied without prejudice to objections at trial.
Plaintiff’s MIL No. 13
Plaintiff
moves to exclude expert testimony about dose reconstruction. Plaintiff does not identify any expert who
will testify to dose reconstruction. Therefore
this motion is too vague.
The
motion is denied without prejudice to objections at trial.
Plaintiff’s MIL No. 14
Plaintiff
moves to exclude evidence that the products at issue in this case have never
been banned because it is irrelevant and merely shows the government does not
have its priorities in order. This
motion is too vague. An expert may have
grounds for relying on the fact that particular products have not been banned.
The
motion is denied without prejudice to objections at trial.
Plaintiff’s MIL No. 15
No motion was filed.
Plaintiff’s MIL No. 16
Plaintiff
seeks to preclude questions about and evidence of a but for causation
test. Pursuant to the July 8, 2022 CMO,
this motion is deemed made and denied so long as the court intends to use CACI
435. Plaintiff did not show good cause
to depart from this order.
The
motion is denied so long as CACI 435 is given.
Plaintiff’s MIL No. 17
Withdrawn.
Plaintiff’s MIL No. 18
Plaintiff
moves to exclude reference to information in the preliminary fact sheet as
irrelevant and lacking foundation. This
motion is too vague. If Plaintiff is
seeking to exclude the preliminary fact sheet, Plaintiff should object if
Defendants put it on the exhibit list.
If Plaintiff is seeking to preclude reference to information in the
sheet, that information may be otherwise admissible. If Plaintiff is seeking to prevent a witness
from testifying about reading the preliminary fact sheet, Plaintiff should
object at the time the witness is questioned about it.
The
motion is denied without prejudice to objections at trial.
Plaintiff’s MIL No. 19
No
motion was filed.
Plaintiff’s MIL No. 20
Plaintiff
moves to exclude expert opinion that Plaintiff’s mesothelioma is unrelated to
asbestos exposure as lacking scientific support and speculative. Pursuant to the July 8, 2022 CMO, a motion to
exclude speculative and unsubstantiated evidence is deemed made and denied.
Therefore,
the motion is denied without prejudice to objections at trial.
Plaintiff’s MIL No. 21
Plaintiffs
move to exclude evidence that asbestos is the state rock as irrelevant and
misleading. Serpentine is not at issue
in the case. Testimony about the state
rock will consume an undue amount of time and has very little probative
value. Evidence about general background
asbestos is not excluded.
The
motion is granted.
Plaintiff’s MIL Nos. 22-24
No
motions were filed.
Plaintiff’s MIL No. 25
Withdrawn.
Plaintiff’s MIL No. 26
See
MIL Nos. 3, 11, 16, 20.
Defendants’ MIL No. 1
Withdrawn.
Defendants’ MIL No. 2
Withdrawn.
Defendants’ MIL No. 3-9
No
motions were filed.
Defendants’ MIL No. 10
Defendants
move to exclude evidence that retail defendants had a duty to test or
investigate products from third party suppliers. Pursuant to the July 8, 2022 CMO, this motion
is deemed made and denied so long as the case includes an operative strict
liability failure to warn cause of action.
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. 11
Defendants
move to exclude evidence about their compliance with 1972 OSHA labeling
regulations because the regulations do not require any warning labels on their
products. To the extent this motion
seeks a ruling on Plaintiff’s failure to warn claims, it is an improper motion
for summary adjudication. Otherwise, the
motion is too vague.
The
motion is denied without prejudice to objections at trial.
Defendants’ MIL No. 12
Defendants move to
bifurcate punitive damages. When a
defendant moves to bifurcate, the court is required to preclude the admission
of evidence of the defendant’s financial condition until after the trier of
fact returns a verdict for plaintiff awarding actual damages and finds that the
defendant is guilty of malice, oppression or fraud. (Civ. Code § 3295, subd. (d).)
The motion is granted.
Defendants’ MIL No. 13
Defendants
move to exclude evidence that Plaintiff bought allegedly asbestos-containing
products in Idaho as irrelevant and confusing and because there is no evidence
supporting the claim. This motion is too
vague. If there is no evidence
supporting the claim, then Defendants can argue that in closing.
The
motion is denied.
Defendants’ MIL Nos. 14-19
No
motions were filed.
Defendants’ MIL No. 20
Defendants
filed this as a “placeholder” motion. There
is no such thing. The motion is denied.
The
moving party is to give notice.