Judge: Laura A. Seigle, Case: 22STCV30385, Date: 2023-04-24 Tentative Ruling

Case Number: 22STCV30385    Hearing Date: April 24, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTIONS IN LIMINE

Plaintiffs’ MIL No. 1 

            Plaintiffs move to exclude evidence of a complaint filed in Illinois in July 2022, which Plaintiffs dismissed after filing this California case.  Plaintiffs state they did not know that their prior counsel filed the Illinois complaint, the prior counsel filed it after Plaintiffs fired the prior counsel, and Plaintiffs did not authorize the filing of the Illinois complaint.  Defendants argue the Illinois complaint is a party admission and can be used for impeachment. 

            This Illinois complaint is not verified by Plaintiffs or signed by Plaintiffs.  (Connett Decl., Ex. 1.)  Plaintiff Karen Hammel testified at her deposition in this case that on July 18, 2022, she fired the prior counsel who filed the Illinois complaint.  (Id., Ex. 2 at p. 105.)  The prior counsel filed the Illinois complaint on July 19, 2022, a day after Plaintiff had fired the firm.  (Id., Ex. 1 at p. 1.)  Plaintiff did not give the prior counsel permission to file the complaint, and she had not seen the complaint before her deposition.  (Id., Ex. 2 at pp. 106-107.) 

            Plaintiffs established that Karen Hammel did not authorize the filing of the Illinois complaint, and her prior counsel were no longer representing her when they filed the complaint.  She had never seen its contents.  Defendants presented no evidence that Plaintiffs in fact authorized the filing and had not dismissed the prior law firm before the firm filed the complaint.  Therefore Defendants have not shown the complaint is a statement or admission by Karen Hammel or an authorized statement or authorized admission by Plaintiffs’ counsel.

            The motion is granted.

Plaintiffs’ MIL No. 2 

            Plaintiffs move to exclude evidence of bankruptcy trust claims filed by Plaintiffs’ prior counsel.  Plaintiffs state they did not authorize the filing of those claims and they have withdrawn the claims.  Defendants argue the claims are party admissions by Karen Hammel and can be used for impeaching Karen Hammel.

            Plaintiff Karen Hammel testified at her deposition in this case that she did not know the prior counsel filed bankruptcy trust claims, had not seen any such claims, and does not know why the claims were filed.  (Connett Decl., Ex. 2 at pp. 107-108, 110.)

            There is no evidence Karen Hammel authorized the prior counsel to file the bankruptcy claims or to make the statements in the claims.  Indeed, she states that the contents of some of the claims are wrong.  (Connett Decl., Ex. 2 at pp. 110-11.)  Defendants presented no evidence that she authorized the statements in the claims or the filing of the claims.  Therefore Defendants have not shown the bankruptcy trust claims are statements or admissions by Karen Hammel, or are authorized statements or authorized admissions by her counsel.

            The motion is granted.

Defendants’ MIL No. 1

            Defendant Colgate-Palmolive Company moves to exclude reference to talcum powder causing asphyxiation or aspiration in infants, talcum powder containing quartz or heavy metals, and talc causing ovarian cancer.  This case is not about infants, heavy metals or ovarian cancer.  This is not a case where the plaintiff alleges failure to warn that the product could cause ovarian cancer.  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 too long.

            The motion is granted.

Defendants’ MIL No. 2 

            Defendant Colgate-Palmolive Company moves to exclude evidence that Johnson & Johnson recalled baby powder in 2019 and discontinued sales in 2020 as irrelevant, unduly prejudicial, and confusing.  Johnson & Johnson is not a party in this case.  These events occurred after the alleged exposure here, and therefore these events have little probative value.  Allowing the evidence would result in much trial time focusing on Johnson & Johnson, which is not a party, and the reasons for its actions, and would be confusing to the jury.

            The motion is granted.

Defendants’ MIL No. 3 

Defendant Colgate-Palmolive Company 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.  Defendant 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. 4 

            Defendant Colgate-Palmolive Company moves to exclude as hearsay a 2014 article by Gordon, Millette, and Fitzgerald because none of them are experts in this case, they were paid for the article, and they have been excluded in other cases.  That they were paid as part of litigation to draft the article goes to the weight to be given the article. 

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.  Defendants also argue the 2014 article is prejudicial because Defendants cannot cross-examine the authors.  That is the case with many scientific documents that an expert may rely on. 

            The motion is granted in part as to the specific contents of the article unless an expert establishes a basis for its admissibility.  Otherwise the motion denied without prejudice to objections at trial.

Defendants’ MIL No. 5

Defendant Colgate-Palmolive Company moves to exclude a paper written by Dr. Jacqueline Moline because she has refused to discuss her paper, it was created for litigation, and she is not an expert in this case.  The paper is hearsay, but an expert can rely on hearsay and tell the jury generally about the hearsay.  The expert cannot tell the jury the contents of the hearsay unless the expert first establishes that the paper is the type of general background information relied upon by experts in the field.

That Moline wrote the paper as part of litigation goes to the author’s potential bias and the weight for the jury to give to the article.  Moline is not an expert in this case and will not be testifying.  Therefore, that she refused to answer questions about the paper at deposition in other cases does not bear on this matter.  That she will not be testifying in this case does not preclude other experts from relying on her paper.  Most scientific articles relied upon by experts are written by authors who do not testify at the trial.

            Defendant argues the paper ignores other cases and is selective about the information it uses.  If some expert in this case testifies about relying on the Moline paper, Defendant can cross-examine the expert about the other cases that the paper ignore.  This issue goes to the weight to be given the paper and opinions based on the paper.

            The motion is granted in part as to the specific contents of the paper unless an expert establishes a basis for its admissibility.  Otherwise the motion denied without prejudice to objections at trial.

Defendants’ MIL No. 6

            Defendant Colgate-Palmolive Company moves to exclude all reference to a paper authored by Emory, Maddox and Kradin.  The paper is hearsay, but an expert can rely on hearsay and tell the jury generally about the hearsay.  The expert cannot tell the jury the contents of the hearsay unless the expert first establishes that the paper is the type of general background information relied upon by experts in the field. 

            Defendant argues the article should be excluded because Emory only works for plaintiffs.  That may be a basis to argue to the jury that they should view the article with suspicion, but it is not a legal ground for excluding expert testimony (if that were the law, many experts would automatically be excluded). 

            Defendant argues the article does not disclose the source of its data and the authors refuse to turn over their data.  However, Defendants do not state that they sought the data in discovery. 

            Defendant argues that the article contains false, one-sided, cherry-picked data.  That is ground for cross-examination and goes to the weight the jury should give the article.

            The motion is granted in part as to the specific contents of the paper unless an expert establishes a basis for the admissibility of the contents.  Otherwise the motion denied without prejudice to objections at trial.

Defendants’ MIL No. 7

            Defendant Colgate-Palmolive Company moves to exclude all evidence of talc testing from old Cashmere Bouquet containers because Plaintiffs do not know how the containers were stored or where they came from.  The flaws in the talc testing are a subject for cross-examination and go to the weight to be given the expert’s conclusions based on that testing. 

The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 8-10

No motions were filed.

Defendants’ MIL No. 11

            Defendant Chattem, Inc. moves to exclude evidence and argument that it is liable for injury 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.)  Defendant filed only a few paragraphs of that agreement, which was at least 31 pages long, not including referenced Schedules, which also were not included in the portions filed with the court.

            Because Defendant failed to file the entire agreement, the court cannot determine what liabilities were assumed or not assumed under the agreement.

The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 12 

            Defendant Chattem, Inc. seeks to prevent Plaintiffs’ experts from telling the jury the titles of articles and books because the titles are hearsay, biased, and inflammatory.  The motion does not identify any particular title.  It is too vague.

            The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 13

            Defendant Chattem, Inc. moves to exclude certain statements during voir dire.  This is an improper motion in limine.  Motions in limine are to exclude evidence, and statements during voir dire are not evidence.  Issues about the conduct of the trial, including the conduct of voir dire, are more properly raised with the trial judge.

            The motion is denied without prejudice to raising questions about the conduct of trial with the trial judge.

Defendants’ MIL No. 14

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 1970s to 2000s.”  (FAC at p. 25.)       Because Chattem’s switch to cornstarch occurred after Plaintiff’s exposure to Gold Bond, it is not evidence that Chattem knew about the alleged asbestos in talc or the danger of asbestos-containing talc at the time of Plaintiff’s exposure.  However, the switch may be evidence of feasibility depending on the evidence at trial and Chattem’s witness’s testimony.

            Therefore, the motion is granted as to arguments and evidence that Chattem’s switch to cornstarch proves it knew there was asbestos in the talc or that the talc was dangerous.  And it is granted at this time as to feasibility subject to Chattem’s witness’s testimony and whether feasibility is disputed at trial.

Defendants’ MIL re Defendants’ Documents 

            Defendant Whittaker Clark & Daniels, Inc. seeks to exclude documents relating to or authored by any other defendant or entity.  This is vague and overbroad.  For example, it would exclude all scientific articles used by experts unless the article was written by Whittaker Clark & Daniels. 

            The motion is denied without prejudice to objections at trial.

            The moving party is to give notice.