Judge: Laura A. Seigle, Case: 23STCV00446, Date: 2023-09-18 Tentative Ruling

Case Number: 23STCV00446    Hearing Date: October 2, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTIONS IN LIMINE

Defendants’ Motion re Arnold Brody

            Defendant HCR Manorcare, Inc. moves to exclude the testimony of Arnold Brody about causation as lacking foundation because he did not review any materials from this case.  (Motion at pp. 2, 6.)  However, Plaintiff’s counsel was clear that at trial she will ask the witness to assume certain foundation facts.  (Brody Depo. at pp. 30-31.)  And Brody testified that he plans to assume there has been an exposure above background that would produce mesothelioma.  (Id. at pp. 33, 36.)  Of course, before Plaintiff’s counsel can ask the witness to assume those facts, Plaintiff will need to show the admissibility of evidence establishing those facts.  Defendant cites no evidence that an expert must review certain case material before opining on hypotheticals.

            Defendant argues that Plaintiff cannot remedy the lack of evidence by having Brody testify as to hypotheticals because Plaintiff did not disclose the hypotheticals they plan to have him use.  (Motion at p. 9.)  First, that is not correct.  Plaintiff’s counsel disclosed the hypotheticals she plans to ask the witness at trial.  (See, e.g., Brody Depo. at pp. 30-32.) 

In Kennemur v. State of California (1982) 133 Cal.App.3d 907, the court held that an expert must disclose the general substance of the testimony the witness is expected to give at trial.  (Id. at p. 919.)  So for example, if an expert denies in the deposition having formed an opinion on a particular topic, it is improper for the expert to testifies at trial about that topic without first informing the other side about the new testimony.  (Dozier v. Shapiro (2011) 199 Cal.App.4th 1509, 1519.)  If at trial, Brody is asked a hypothetical on a topic or opinion he did not previously disclose or that he previously testified he had no opinion about, Defendant should object at that time. 

The motion is denied without prejudice to objections at trial.

Defendants’ Motion re Gerald Markowitz

Defendant HCR Manorcare, Inc. moves to exclude the testimony of Gerald Markowitz because he is a historian and lacks the expertise to opinion on science and scientific articles.  

Plaintiffs state Markowitz is an expert in the field of public health.  If Markowitz seeks to testify about the history of asbestos as a known danger, that topic falls within his education, career, and expertise in the history of public health.  The history of asbestos as a health danger is not something within the common experience and knowledge of the jury, and an expert presenting a summary and explanation of that history could be helpful to the jury.  If Markowitz purports to give scientific or medical opinions, Defendant should object at that time that Markowitz has no foundation or expertise for giving such opinions.

Plaintiffs argue that the work of a historian is based on reading the works of other people, which the jury can do as well as anyone else.  (Opposition at p. 8.)  It is not at all clear that the jury can read all of the articles on which Markowitz relies and understand them as well as Markowitz can explain the history of asbestos as a known danger.  However, simply because Markowitz read a work does not make that work admissible.  Unless the literature he read is otherwise admissible, Markowitz cannot tell the jury the contents and conclusions in the literature, and Defendant should object at that time if he attempts to do so. 

Defendant argues Markowitz does not have any knowledge about Plaintiff’s work history and exposure and therefore cannot testify about what Defendant actually knew.  (Motion at p. 7.)  If he is asked about what Defendant actually knew (as distinct from what was knowable) and has no evidentiary basis to support a conclusion that Defendant actually knew something, Defendant should object then.

Defendant argues Markowitz relies on non-technical articles that the jury can easily understand.  However, if those articles are the type of material experts in the field rely upon, that they are non-technical does not preclude Markowitz from relying on them.  Again, unless they are otherwise admissible, he cannot tell the jury the contents of the articles.

Defendant argues Markowitz relies on an article from the 1930s concerning asbestos textile workers that is inapplicable here.  (Motion at p. 10.)  If Markowitz testifies that he relied on that article, Defendant can cross-examine him on the differences between that article and the exposure here and argue the jury should give the article and any opinion based on it no weight.

            The motion is denied without prejudice to objections at trial.

Defendant’s Motion re Barry Horn

            Defendant HCR Manorcare, Inc. moves to exclude Barry Horn’s testimony as speculative because he did not review any industrial hygiene materials and has no information about Plaintiff’s dose.  (Motion at p. 1.)  Defendant’s argument that Horn’s testimony is speculative is deemed made and denied pursuant to the July 8, 2022 CMO.  Further Defendant’s argument that Horn cannot testify concerning causation and “substantial factor” is deemed made and denied under the July 8, 2022 CMO.  As explained below, Defendant did not show good cause to depart from that order. 

            Defendant argues Horn cannot use hypotheticals in his testimony because he did not disclose those hypotheticals in an expert report or at his deposition.  (Motion at p. 9.)  That is not correct.  For example, at page 36 of his deposition, Horn testifies that hypothetically, if Plaintiff was exposed to free asbestos fibers in the air as a consequence of working with an asbestos-containing product, she breathed in those asbestos fibers and that contributed to her risk of developing mesothelioma.  As another example, on pages 90 through 92, he assumes that information in medical bills is correct, and he answers a hypothetical about background exposure. 

The holding in Kennemur v. State of California (1982) 133 Cal.App.3d 907 requires the expert to disclose the general substance of the testimony the witness is expected to give at trial.  (Id. at p. 919.)  So for example, if an expert denies in the deposition having formed an opinion on a particular topic, it is improper for the expert to testifies at trial about that topic without first informing the other side about the new testimony.  (Dozier v. Shapiro (2011) 199 Cal.App.4th 1509, 1519.)  If at trial, Horn is asked a hypothetical on a topic or opinion he did not previously disclose or that he previously testified he had no opinion about, Defendant should object at that time. 

            Defendant further argues that any hypothetical posed to Horn will not be based on admissible evidence.  (Motion at p. 11.)  If that occurs, Defendant should object at that time.

            The motion is denied without prejudice to objections at trial.

Defendant’s Motion re Marty Kanarek

            Defendant HCR Manorcare, Inc. moves to exclude Marty Kanarek’s testimony about causation as speculative and lacking foundation because he testified he does not know of any epidemiological studies concerning asbestos exposure from lab equipment.  Defendant cites no law that an epidemiological study is a necessary prerequisite to a causation opinion.

Defendant also argues Kanarek’s opinion should be excluded because he has no information about Plaintiff’s exposure from lab products.  That is not accurate.  He reviewed her deposition transcripts where she testified about the asbestos-containing products she used.  (Kanarek Depo. at pp. 10-11, 15, 17.) 

            Part of the problem here is that nowhere in the deposition (at least the transcript attached by Defendant to the motion) did defense counsel ask Kanarek what opinions he WILL testify to at trial and what the bases and evidence of those opinions are.  The holding in Kennemur v. State of California (1982) 133 Cal.App.3d 907 requires the expert to disclose the general substance of the testimony the witness is expected to give at trial.  (Id. at p. 919.)  For example, if an expert denies in the deposition having formed an opinion on a particular topic, it is improper for the expert to testifies at trial about that topic without first informing the other side about the new testimony.  (Dozier v. Shapiro (2011) 199 Cal.App.4th 1509, 1519.)  So while an expert does have an obligation to disclose the general substance of his testimony either in his report or deposition, the other side cannot complain about a lack of deposition testimony concerning the details of the opinions where the examining attorney fails to ask about those opinions and bases.  An expert can only answer questions he is asked.

            Defendant also argues Kanarek cannot use hypotheticals in his testimony because he did not disclose those hypotheticals in an expert report or at his deposition.  (Motion at p. 8.)  If at trial, Kanarek is asked a hypothetical on a topic he did not previously disclose or that he previously testified he had no opinion about, Defendant should object at that time. 

            Defendant further argues that any hypothetical posed to Kanarek will not be based on admissible evidence.  (Motion at p. 9.)  If that occurs, Defendant should object at that time.

            Defendant argues Plaintiff has two epidemiologists on the witness list, and one should be excluded as duplicative.  If Plaintiff asks duplicative questions or attempts to have experts present duplicative opinions at trial, Defendant should object at that time. 

            The motion is denied without prejudice to objections at trial.

Defendant’s Motion Re Keith Garza

            Defendant HCR Manorcare, Inc. seeks to exclude the testimony of Keith Garza that Defendant’s products used by Plaintiff contained asbestos and released asbestos fibers as speculative.  (Motion at pp. 5-6.) 

            In fact, Garza testified that he read Plaintiff’s deposition about the products she used from Defendant and the requirement at her school that the products be made from asbestos.  (Garza Depo. at pp. 20-21.)  Thus his opinion that Plaintiff used Defendant’s product and was exposed to asbestos from products is not based on speculation.  Also, Garza explained at his deposition the studies on which he relied to conclude those types of products released asbestos fibers.  (See, e.g., Garza Depo. at pp. 29-31.)

            The motion is denied without prejudice to objections at trial.

Defendant’s Motion Re James Millette

            Defendant HCR Manorcare, Inc. moves to exclude the opinions of James Millette that Plaintiff used products from Defendant that contained asbestos and that those products released asbestos fibers as speculative. 

            In fact, Millette testified he read Plaintiff’s deposition where she testified to using Defendant’s products that contained asbestos.  (Millette Depo. at pp. 28, 33, 35, 51.)  Throughout his deposition, Millette testified to the bases for his opinion that Defendant’s products released asbestos fibers.  (See, e.g., Millette Depo. at p. 41-42.) 

            The motion is denied without prejudice to objections at trial.

Defendant’s Motion Re Allan Smith

            Defendant HCR Manorcare, Inc. moves to exclude the testimony of Allan Smith as speculative because he could not refer to any epidemiological study concerning asbestos exposure from lab equipment and he has no information about Plaintiff’s exposure from Defendant’s lab products.  (Motion at pp. 5, 6.) 

            Defendant does not cite any law that an expert cannot testify about causation without an epidemiological study.  Further, it is not accurate to say Smith has no information about Plaintiff’s exposure from Defendant’s lab products.  He reviewed her deposition transcripts.  (Smith Depo. pp. 13-14, 15-16.)  She testified at her deposition about the asbestos-containing products she used, including from Defendant. 

Also, Smith stated he is not going to be testifying about any particular brand of product she used or that lab equipment might contain asbestos.  (Smith Depo. at pp. 25, 27.)  In effect, Defendant is moving to exclude testimony that Smith clearly stated he does not plan to give at trial.  If at trial, Smith does testify about particular brands or that particular lab equipment contained asbestos, Defendant should object then.

            Defendant argues Smith cannot use hypotheticals in his testimony because he did not disclose those hypotheticals in an expert report or at his deposition.  (Motion at p. 7.)  If at trial, Smith is asked a hypothetical on a topic he did not previously disclose or that he previously testified he had no opinion about, Defendant should object at that time. 

            Defendant argues Plaintiff has two epidemiologists on the witness list, and one should be excluded as duplicative.  If Plaintiff asks duplicative questions or attempts to have experts present duplicative opinions at trial, Defendant should object at that time. 

            The motion is denied. 

            The moving party is to give notice.