Judge: Laura A. Seigle, Case: 22STCV24956, Date: 2024-01-11 Tentative Ruling

Case Number: 22STCV24956    Hearing Date: January 29, 2024    Dept: 15

[TENTATIVE] ORDER RE MOTIONS IN LIMINE

Defendants’ MIL No. 1

            Defendant Avon Products, Inc. moves to exclude evidence about diseases caused by talc other than mesothelioma, such as ovarian cancer.  This case is not about 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.  The evidence would be more prejudicial than probative, would confuse the jury, and would consume an undue amount of time in a trial that is already too long.  The motion is granted.

Defendants’ MIL No. 2

Avon moves to exclude evidence of an article entitled “Asbestos in Commercial Talcum Powder as a Cause of Mesothelioma in Women.”  Defendants contend the article is hearsay.  An expert may rely on hearsay and tell the jury in general terms that he or she did so.  If an expert testifying in this case establishes that this article is the type of background information relied upon by experts in the field, the evidence may be relevant and admissible even if hearsay.  (People v. Veamatahau (2020) 9 Cal.5th 16, 22.)  Defendant did not show that the article is based on data lacking foundation or an unreliable method.  Defendant can cross-examine any expert who relies on this article about these points.

            The motion is granted in part as to the contents of the article unless an expert establishes a basis for its admissibility. 

Defendants’ MIL No. 2

            Defendants L’Oreal USA and Maybelline move to exclude all documents from other entities.  This duplicates No. 4 below and is denied for the same reasons.

Defendants’ MIL No. 3

            Avon moves to exclude evidence of industrial talc mines and products as not relevant because this case involves cosmetic talc.  This motion is too vague.  The motion does not identify any specific evidence to exclude.  The court cannot categorically say that evidence mentioning industrial talc is completely irrelevant.  For example, an expert could rely on studies about talc that mention multiple kinds of talc.

            The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 4

            Avon moves to exclude all references to internal documents from Johnson & Johnson, Imerys, and Cyprus as hearsay and not relevant.  This motion is too vague because it does not identify the specific evidence to be excluded.  The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 5

Avon moves to exclude all reference to other lawsuits involving Defendant and its related entities or illness from use of talc.  This motion is too vague.  For example, it is common in asbestos cases to use deposition testimony from prior cases.  To the extent a party seeks to introduce the amounts of any settlement, judgment, verdict, or award in another litigation, the motion is deemed made and granted 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. 6

Avon moves to exclude evidence about foreign governmental investigations and proceedings into talcum powder as irrelevant, prejudicial, confusing and time-consuming.  Plaintiffs did not show that any defendant was aware of a foreign investigation or proceeding into talcum powder such that this information is relevant to notice, or that the foreign investigation or proceeding gave Defendant notice of something it was not previously aware of.  Allowing that evidence will consume an undue amount of trial time exploring the reasons for the foreign investigations.  The evidence would have little probative value because foreign investigations do not result in regulations or law in the United States and would be confusing to the jury.  The motion is granted.

Defendants’ MIL No. 7

Defendant Avon moves to exclude all references to the IWGACP formed in 2018 and its 2020-2022 recommendations and papers as irrelevant, misleading, and hearsay.  If an expert establishes that this is the type of background information relied upon by experts, the evidence may be relevant and admissible even if hearsay.  Defendants can then cross-examine the expert on the fact that the work is only preliminary.  The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 8

            Avon moves to exclude reference to any Avon talcum product not at issue as irrelevant.  This motion is too vague.  For example, an expert could rely on a study that mentions other Avon products not at issue in this case, and the expert may be able to establish the relevancy of that study.     The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 9

            No motion was filed.

Defendants’ MIL No. 10

            Defendant Merle Norman moves to bifurcate punitive damages.  The motion is granted.

Defendants’ MIL No. 11

            Defendant Merle Norman moves to exclude all photographs and videos of all experiments and simulations conducted by experts or others pertaining to the use of talcum powder products as not based on generally accepted scientific methodology.  This is extremely vague and overbroad.  The motion does not identify the specific expert testimony or documents to be excluded.

            The motion also seeks to exclude all experiments and simulations involving Tyndall lighting.  The motion does not identify the specific experiments, simulations, experts or documents to be excluded.  It asserts that Tyndall lighting is not reliable but cites no evidence establishing unreliability.

            The motion is denied without prejudice to objections a trial.

Defendants’ MIL No. 12

            Defendant Merle Norman Cosmetics, Inc. moves to exclude all references to products not at issue.  This motion duplicates No. 8 above and is denied for the same reasons.

Defendants’ MIL No. 12

            Merle Norman seeks to prevent Plaintiffs, Plaintiffs’ counsel, and witnesses from using the phrases “asbestos-containing” and “asbestos-containing product.”  This motion would prevent Plaintiffs from explaining their allegations because this entire case is about Plaintiffs’ claims that Defendants made or sold asbestos-containing products.  And there is little difference between saying “asbestos-containing product” and “product containing asbestos” or “product that had asbestos in it” or “product made with ingredients that contained asbestos.”

            The motion is denied.

Defendants’ MIL Re Disclosure of Witness and Exhibits

            Defendant Merle Norman Cosmetics moves to exclude all evidence not disclosed 72 hours in advance.  This is not a proper motion in limine.  The trial court will have rules about disclosing witnesses and exhibits.

            The motion is denied.

            The moving party is to give notice.