Judge: Laura A. Seigle, Case: 22STCV39236, Date: 2023-08-04 Tentative Ruling

Case Number: 22STCV39236    Hearing Date: August 7, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTIONS IN LIMINE

Plaintiffs’ MIL No. 1

            No motion was filed.

Plaintiffs’ MIL No. 2

            Plaintiffs seek to preclude experts from speculating about sources of asbestos and exposure.  This motion is too vague.  Pursuant to the July 8, 2022 CMO, it is deemed made and denied.  Plaintiffs did not show good cause to depart from the CMO.  The motion is denied without prejudice to objections at trial.

Plaintiffs’ MIL No. 3

            Plaintiffs move to exclude evidence of immigration status.  Plaintiffs’ immigration status is irrelevant.  However, evidence that Olivas primarily lived in Mexico and other parts of the U.S. is relevant.  The motion is granted as to Plaintiffs’ immigration status but not as to evidence that Olivas also lived in Mexico most of his life.

Plaintiffs’ MIL No. 4

Plaintiff moves to exclude evidence that Evaristo Juarez Olivas smoked.  Defendant Kaiser Gypsum states it will not argue that smoking causes mesothelioma but that smoking is relevant to Plaintiff’s life expectancy.  The motion is granted in part as to any argument that smoking causes mesothelioma and otherwise denied without prejudice to objections at trial.

Defendants’ MIL Nos. 1-3

            The moving party settled.

Defendants’ MIL No. 4

            No motion was filed.

Defendants’ MIL No. 5

            Kaiser Gypsum moves to exclude deposition testimony from John Crum and Brentwood Crosby pursuant to Berroteran.  Objections under Berroteran are handled via the objection process and timeline set forth in the July 8, 2022 CMO and August 2022 Amendment.  The court already ruled on these objections in its July 10, 2023 order.  The motion is denied.

Defendants’ MIL No. 6

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. 7

Kaiser Gypsum seeks to preclude Plaintiffs’ telling the jury the contents of documents relied upon by experts because the documents are hearsay, unreliable, 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. 8

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 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. 9

Kaiser Gypsum moves to exclude references to a 1989 proposed EPA ban that never went into effect because it was invalidated by the Fifth Circuit Court of Appeals as not supported by sufficient evidence.  The alleged exposure in this case took place between 1970 and 1975.  Therefore the proposed 1989 ban occurred 14-15 years later, making it irrelevant, in particular as to notice or knowledge.  The motion is granted.

Defendants’ MIL No. 10

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. 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 Olivas 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 and the decedent 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.

The moving party is to give notice.