Judge: Laura A. Seigle, Case: 23STCV00437, Date: 2023-08-11 Tentative Ruling
Case Number: 23STCV00437 Hearing Date: September 1, 2023 Dept: 15
[TENTATIVE] ORDER RE MOTIONS IN LIMINE
Plaintiffs’ No. 1
Plaintiffs move to
exclude evidence of the contents of the complaint and references to former
defendants no longer involved in the case.
This motion is too vague and overbroad.
The parties must refer to the contents of the complaint in order to
litigate this case. The entire point of
a trial is for the plaintiffs to prove the allegations asserted in the
complaint. Also, scientific articles or
other documents may mention former defendants no longer involved in this case,
and reference to former defendants may be permissible for purposes of
allocation of fault. And experts may
testify they relied on the complaint.
Also, unless a defendant
was granted summary judgment, a defendant no longer in this case may still be
relevant for allocation of fault under Proposition 51.
Plaintiffs move to
preclude Defendants from showing the complaint to the jury, arguing nothing in
the complaint is a judicial admission. Defendants argue the complaint is a
judicial admission. “ ‘The admission of
fact in a pleading is a “judicial admission.” ’
[Citation.] A judicial admission
in a pleading is not merely evidence of a fact; it is a conclusive concession
of the truth of the matter.
[Citation.] ‘Well pleaded
allegations in the complaint are binding on the plaintiff at trial.’ [Citation.]
‘The trial court may not ignore a judicial admission in a pleading , but
must conclusively deem it true as against the pleader.’ [Citation.]”
(Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 187.) Based on this caselaw, the complaint may
contain judicial admissions of fact. The
court therefore cannot conclude at this time that the entire complaint is
inadmissible.
The
motion is denied without prejudice to objections at trial.
Defendants’ No. 1
Defendant
Honeywell International Inc. seeks to exclude a letter and a memo from E.A.
Martin because they cannot be authenticated, are hearsay, are not relevant, and
are more prejudicial than probative. The
documents are unsigned, and Honeywell states there is no evidence about who
wrote or received them. The court cannot
determine at this point that no witness will be able to authenticate the
documents. If Plaintiffs seek to
introduce unauthenticated documents at trial, Defendant should object then.
The document could be
relevant to Defendants’ notice or knowledge of the dangers of asbestos. If Plaintiffs seek to use the documents to
show notice, the documents may not be hearsay if they are not offered for the truth
of the matter asserted (assuming they can be authenticated).
The last paragraph of the
letter is more prejudicial than probative.
If Plaintiffs authenticate the letter and establish its relevance and
non-hearsay use at trial, the last paragraph of the letter is to be redacted
before the letter is admitted.
Plaintiffs did not establish the author of the letter was a managing
agent or authorized to speak for the company.
The motion is granted in
part and denied in part without prejudice to objections at trial.
Defendants’ No. 2
Defendant Honeywell moves
to exclude evidence of a 1986 EPA guidance about asbestos as hearsay,
unscientific, and unduly prejudicial. If
Defendants contend they did not know about the hazards of asbestos by 1986, the
document could be relevant to Defendants’ notice of the dangers of asbestos, a
non-hearsay use. Also, the contents of
the document may be admissible at trial via an expert if the expert establishes
it is general background information of the type relied upon by experts in the
field. That the document was based on
unscientific sources can be the subject of cross-examination and goes to the
weight to be given the document and whether an expert can establish it is the
type of information relied upon by experts.
The
motion is denied without prejudice to a contemporaneous objections at trial.
Defendants’ No. 3
No
motion was filed.
Defendants’ No. 4
Defendants move to
exclude evidence about work and videos done by William Longo and Richard
Hatfield using 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. 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.)
At
trial, Defendants can cross-examine the experts about the similarities and
differences of Samson Bareh’s exposure to a small, sealed chamber and argue the
jury should give the videos no weight because of the different conditions. The motion is denied without prejudice to
objections at trial.
Defendants’ No. 5
Honeywell moves to
exclude evidence of workers’ compensation claims. If notice of the dangers of asbestos or
asbestos in the products at issue is contested, some evidence of the claims may
be relevant and for a non-hearsay purpose.
However, the details of workers’ compensation actions would be unduly
prejudicial, time-consuming, and confusing to the jury. It is for the trial judge to determine how
much is too much. To the extent a party
seeks to introduce the amounts of any settlement, judgment, verdict, or award
in another litigation, the motion is deemed granted and made pursuant to the
July 8, 2022 CMO.
Honeywell argues
Plaintiffs cannot authenticate the documents.
The court cannot at this time determine whether Plaintiffs will be able
to authenticate yet-unspecified exhibits at trial.
The
motion is granted in part and denied in part subject to objection at trial.
Defendants’ No. 6
Defendants move to
exclude the Don’t Blow It video and any evidence referring to the video as
hearsay, unscientific, and prejudicial.
The video may be admissible at trial via an expert if the expert
establishes that it is general background information of the type relied upon
by experts in the field. The claim that
the video is unscientific can be the subject of cross-examination and goes to
the weight to be given the video.
Defendants contend the EPA updated its guidance in 2007 so the video is
outdated. That too can be the subject of
cross-examination.
Defendants argue the
video’s references to an article and wives and children lack foundation. That section of the video is irrelevant
because there is no claim in this case about injury to wives and children. Similarly, smoking does not seem to be an
issue in this case. If Plaintiffs
establish that the video is admissible, the portion of the video about the
magazine article, smoking, and wives and children are to be redacted.
The
motion is granted in part and denied without prejudice to objections at trial.
Defendants’ Nos. 7-8
No
motions were filed.
Defendants’ No. 9
Defendant Exxonmobil Oil
Corporation moves to exclude reference to Exxon Valez. That matter has no bearing on this
litigation, is prejudicial, and will consume an undue amount of time. The parties should have been able to
stipulate to this. The motion is
granted.
Defendants’ No. 10
Defendant
Exxonmobil Oil Corporation moves to preclude Plaintiffs’ counsel from referring
to Defendant as Exxon or Exxon Mobil because Exxon Mobil Corporation and
Exxonmobil Oil Corporation are separate entities. Exxon Mobile Corporation has been dismissed.
This
motion is too vague. The names are very
similar, and the attorneys on both sides will need to try to refer to Defendant
by the proper name. But if an attorney
slips up and mistakenly refers to Defendant Exxonmobil Oil Corporation as “Exxon”
or “Exxon Mobile” (an understandable slip of the tongue) the attorney should
not face sanctions for violating a court order.
The
motion is denied without prejudice to objections at trial.
Defendants’ No. 11
Defendant Exxonmobil Oil
Corporation moves to exclude evidence of a 1937 survey prepared by Roy Bonsib
for Standard Oil Company as irrelevant because it concerns Standard Oil
Company, which is not a party to this case.
This report is from 1937, far before the exposure period at issue here. Plaintiffs state the survey is relevant to
show what was known about asbestos in 1937.
If the point of this evidence is to show that by the time of the alleged
exposure here in the 1980s, Defendants knew that asbestos was harmful, there is
plenty of contemporaneous evidence to show that. The 1937 survey is cumulative, will consume
an undue amount of time, and is not relevant to showing Defendants’ knowledge
in the 1980s or the state of the art in 1980s.
The
motion is granted.
Defendants’ No. 12
Defendants
moves to exclude evidence of their size and financial status unless and until
there is a punitive phase of the trial.
Plaintiffs argue that Defendants’ historical size is relevant to show
what scientific information Defendants knew or should have known. The fact that most Defendants are very well
known international brands can be made without reference to their size and financial
condition. The motion is granted.
Defendants
also move to exclude reference to the size of their law firms. That is irrelevant, prejudicial, and will
waste jury time. The motion is granted.
Defendants’ No. 13
No
motion was filed.
Defendants’ No. 14
Defendants move to
exclude evidence of 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. This evidence may go
to notice or knowledge. Defendants can
cross-examine the witness about the fact that the proposed ban was never
effective and was invalidated by the court for lack of evidence. That cross-examination can be done
efficiently, which just a few questions and does not need to consume an undue amount
of time.
The motion is denied
without prejudice to a contemporaneous objection at trial.
Defendants’ No. 15
Defendants move to
exclude testimony and videos from William Longo and Richard Hatfield about work
simulations because the simulations are not similar to Plaintiff’s exposure and
are overly theatrical. Defendant argues
the simulations took place in small sealed chambers, and did not involve the
products and equipment at issue in this case, and therefore will be confusing
to the jury because the conditions are so different.
At
trial, Defendants can cross-examine the experts about the similarities and
differences of Plaintiff’s exposure to a small, sealed chamber, the differences
in products and equipment at issue here and what was shown in the video, and why
the participants in the simulations were wearing protective equipment. Defendants can argue the jury should give the
videos no weight because of the different conditions and products.
The
motion is denied without prejudice to objections at trial.
Defendants’ Nos. 16-19
This
defendant has been dismissed.
Defendants’ No. 20
Defendant
Ford Motor Company seeks to preclude evidence from the Coordinating Committee
for Automotive Repair (“CCAR”), which Ford describes as “an independent,
nonprofit organization made up of over 200 affiliate organizations representing
all segments of the automotive industry” and providing training materials among
other information.
Ford
seeks to exclude material from the CCAR website as inadmissible hearsay. The website materials may be admissible if
they are used for notice or knowledge or if an expert establishes that they are
the type of materials relied upon as accurate by experts in the field. Also, to the extent Ford is arguing that
knowledge of the CCAR materials cannot be imputed to Ford, this motion is
deemed made and denied pursuant to the July 8, 2022 CMO. Therefore, this request is denied subject to
objection at trial.
Ford
seeks to exclude designated deposition testimony about CCAR. Objections to specific designated deposition
testimony are handled through the page/line designation process as set forth in
the July 8, 2022 CMO and August 2022 Amendment.
The
motion is denied without prejudice to objections at trial.
Defendants’ No. 21
Ford
Motor Company moves to exclude all evidence of any regulatory bans regarding
asbestos. Plaintiffs did not show that
there is any evidence any defendant was aware of the foreign bans or why the
foreign governments issued the bans.
Allowing that evidence will consume an undue amount of trial time
exploring the bases for the foreign bans.
The evidence would have little probative value because it did not apply
to workplaces in the United States.
The
motion to exclude evidence about domestic governmental actions is too
vague. The information in existence at the
time of alleged exposure is potentially relevant to show Defendants’ knowledge
and notice.
Also,
regulations and laws are not hearsay.
They are operative acts.
The
motion is granted as to the foreign bans and otherwise denied without prejudice
to a contemporaneous objection at trial.
Defendants’ No. 22
Defendant
Volkswagen Group of America Inc. seeks to preclude evidence about the diesel
emissions matters involving Volkswagen entities and vehicles sold between 2009
and 2015 that allegedly had their emission control system bypassed. This evidence is irrelevant, has nothing to
do with asbestos exposure, is prejudicial, and will waste trial time. The parties should have been able to reach a
stipulation on this.
The
motion is granted.
Defendants’ No. 23
Defendants
move to exclude any evidence that their parent companies knew about the dangers
of asbestos. This is too vague. If there is evidence that parent companies
communicated about the dangers of asbestos with their affiliates and
subsidiaries, that information could be relevant.
The
motion is denied without prejudice to objection at trial.
Defendants’ No. 24
Defendants
move to exclude references to World War II, Hitler, Nazis, and other Holocaust topics. These matters are all irrelevant to this
case, highly prejudicial, and will consume an undue amount of time. The parties should have been able to reach a
stipulation to exclude this obviously prejudicial and irrelevant material during
their meet and confer. That they did not
stipulate raises questions whether the parties made a good faith effort to meet
and confer.
The
motion is granted.
Defendants’ No. 25
Defendant American Honda
Motor Co., Inc. 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’ No. 26
Defendant
American Honda seeks to preclude references to Covid. That is not possible. A trial participant may get sick during the
case, and the jury may need to be informed they were exposed to Covid. Otherwise the motion is too vague in
referencing “other non-asbestos-related respirable illnesses.”
The
motion is denied without prejudice to objections at trial.
Defendants’ No. 27
Defendants move to
exclude evidence about work and videos done by William Longo and Richard
Hatfield using work simulations because the simulations are not similar to Samson
Bareh’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.
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.)
At
trial, Defendants can cross-examine the experts about the similarities and
differences of Samson Bareh’s exposure to a small, sealed chamber and argue the
jury should give the videos no weight because of the different conditions. The motion is denied without prejudice to
objections at trial.
Defendants’ No. 28
Defendant
Ford Motor Company moves to exclude a December 2020 publication by the EPA
entitled “Risk Evaluation for Asbestos Part I: Chrysotile Asbestos” as hearsay,
irrelevant and prejudicial. 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 publication is the type of background information relied
upon by experts in the field, the evidence may be relevant and admissible even
if hearsay. Defendants can cross-examine
any expert who relies on this publication about the trustworthiness of the
document.
The court cannot
determine at this point that the publication is irrelevant or prejudicial.
The motion is denied
without prejudice to objections at trial.
Defendants’ No. 29
American
Honda moves to exclude “inaccurate and unduly prejudicial statements that refer
to AHM as manufacturers or designers of asbestos-containing products and
parts.” Plaintiffs state they will not
refer to Defendant as a manufacturer or designer. The parties should have been able to reach a
stipulation during their meet and confer on this motion.
The
motion is granted.
Defendants’ No. 30
American Honda moves to
exclude references to other litigation.
This motion is too vague. It is
common in asbestos litigation for parties to designate former testimony from
prior cases.
American Honda then
specifies it seeks to exclude a tentative ruling from another case that was not
entered. Plaintiffs do not address this tentative
ruling in their opposition. The
tentative ruling is irrelevant, prejudicial and a waste of jury time. The motion is granted as to the tentative
ruling.
To the extent the motion
seeks to exclude settlements, judgments and verdicts from other litigations,
the motion is deemed made and granted pursuant to the July 8, 2022 CMO. Plaintiffs did not show good cause to depart
from that order.
Therefore,
the motion is granted in part and denied in part without prejudice to
objections at trial.
Defendants’ No. 31
Defendant
American Honda moves to exclude any “bias statements” relating to Japan and the
Japanese people. This is too vague. If someone says something during trial
indicating bias against Japan or the Japanese people, Defendant should object
at that time.
Defendant
moves to exclude references to Pearl Harbor, internment camps, and any world
wars. This motion is granted because those matters
are obviously irrelevant and unduly prejudicial. The parties should have been able to reach an
agreement during their meet and confer on this point. The fact that they did not stipulate raises
questions about whether the parties met and conferred in good faith.
The
motion is granted in part and denied in part without prejudice to objections at
trial.
Defendants’ No. 32
Mercedes-Benz
moves to exclude Magdy Bareh from testifying about his job at the Jet
Propulsion Laboratory because he refused to testify about that job at his
deposition. This is in effect a motion
for a discovery sanction, but Defendant never filed a motion to compel answers
to the questions Magdy Bareh failed to answer.
Regardless, details about his job at JPL are irrelevant, as Magdy Bareh
himself said at his deposition, and will consume an undue amount of time. The motion is granted.
Defendants’ No. 33
Mercedes-Benz
move to exclude evidence not produced in discovery. Pursuant to the July 8, 2022 CMO, this motion
is deemed made and denied. Defendant did
not show good reason to depart from that order.
The motion is denied without prejudice to objections at trial.
Defendants’ No. 34
Defendant
Mercedes-Benz USA, LLC seeks to preclude cross-examination of R. Thomas Brunner
on matters covered by deposition testimony that Plaintiffs plan to use in their
case. This is much too vague. If Defendant examines the witness on a
particular topic, Plaintiffs have the right to cross-examine him on that topic. If testimony becomes cumulative, a party
should object at that time.
The
motion is denied without prejudice to objections at trial.
Defendants’ Nos. 35-41
No
motions were filed.
Defendants’ No. 42
The Pep Boys seek to
exclude evidence about its 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 Plaintiffs’ 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’ No. 43
The Pep Boys seeks to
exclude arguments it had a duty to investigate the products it sold. Pursuant to the July 8, 2022 CMO, this motion
is deemed made and denied. Defendant did
not show good cause to depart from this order.
The motion is denied without prejudice to objections at trial.
Defendants’ No. 44
Morse Tec moves to
exclude evidence of a proposed 1971 Illinois ban that never went into effect as
hearsay and irrelevant. The evidence may
go to notice or knowledge. Defendants
can then cross-examine the witness about the fact that the proposed ban was
never effective.
The
motion is denied without prejudice to objections at trial.
Defendants’ No. 45
Defendant Morse Tech
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. If
Defendants contend they did not know about the hazards of asbestos by 1989, this
evidence may go to notice or knowledge.
Defendants can cross-examine the witness about the fact that the
proposed ban was never effective and was invalidated by the court for lack of
evidence. That cross-examination can be
done efficiently, which just a few questions and does not need to consume an
undue amount of time.
The motion is denied
without prejudice to a contemporaneous objections at trial.
Defendants’ No. 45
Volkswagen
moves to exclude former deposition testimony of Juergen Albers. Defendant states Plaintiffs’ list of former
testimony did not include Juergen Albers.
Plaintiffs argue they did not know about his testimony at the time of
the exchange of lists of former testimony.
The
deposition testimony is from 2019.
Therefore, Plaintiffs have had plenty of time to discover it and did not
show good cause for not uncovering the former testimony earlier. This trial is already much too long, and
Plaintiffs did not show that the Albers testimony is not cumulative of other
testimony.
In
any event the parties must comply with the procedures in the July 8, 2022 CMO
and August 2022 Amendment. The number of
defendants and long lists of former testimony designated in asbestos cases
makes the page-line designation process expensive for the parties and
time-consuming for the court. The July
8, 2022 CMO and August 2022 Amendment are designed to reduce the cost for the
parties and the burden on the court imposed by the page-line designation
process. However, for the July 8, 2022
CMO to be effective, for costs to be reduced, and for the burden on the court
to be lessened, the parties must comply with the deadlines and instructions in
the July 8, 2022 CMO and August 2022 Amendment.
If parties can continue to submit former deposition transcripts for
rulings on page/line designations up to trial without good cause, the court’s
ability to manage these complex asbestos cases and prepare them for trial will
be undermined. It will take longer to
prepare the case for trial, and cost much more money and court resources.
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.