Judge: Laura A. Seigle, Case: 23STCV05437, Date: 2023-06-22 Tentative Ruling

Case Number: 23STCV05437    Hearing Date: October 18, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION IN LIMINE

Plaintiff’s MIL No. 1

            Plaintiff moves to exclude Jeffrey Birkner’s testimony that Defendant’s talc and products from Avon Estee Lauder and Gold Bond contain no asbestos because he has no foundation for those opinions.  Plaintiff states he bases those opinions on two emails from 2012 about testing Defendant’s talc.  (Motion at p. 8.)  Based on those two email, Birkner concludes that Plaintiff was not exposed to asbestos from Defendant’s talc.  (Motion at p. 9.) 

            Birkner testified at his deposition that based on the material he reviewed, he concluded Avon used Defendant’s Osmanthus talc and that talc contained no asbestos.  (Birkner Depo at pp. 35, 37-38, 42.)  He bases those conclusions on sales records and studies of Osmanthus talc including a Bandli/Fowler report.  (Id. at pp. 35, 37-38, 42-43.)  In addition, he relied on the two emails summarizing testing data.  (Id. at pp. 43, 45-46.)  He also relied on other analyses referred to as Coit documents.  (Id. at pp. 45, 47-48.)  Thus, Birkner relied upon more than just those two emails.  At this point, the court cannot determine whether those two emails will be admitted into evidence.  Further, Plaintiff’s motion does not address the other bases for Birkner’s conclusion.  Therefore, the court cannot conclude that Birkner has no basis for his conclusion.

            Plaintiff also argues Birkner should be precluded from offering evidence about what Defendant knew concerning asbestos and talc.  (Motion at p. 10.)  But Plaintiff also states that Birkner agreed he will not offer an opinion about what Defendant knew or should have known about asbestos and talc.  (Ibid.)  At his deposition, Birkner testified he is not going to offer an opinion on that topic.  (Birkner Depo. at p. 23.)  Therefore, there is nothing to exclude on this matter.  If at trial Birkner is asked about what Defendant knew or should have known, Plaintiff can object then.

            The motion is denied without prejudice to objections at trial.

Plaintiff’s MIL No. 2

            Plaintiff moves to exclude evidence and arguments that her mesothelioma was caused by anything other than asbestos from talcum powder because Defendant offered no expert on that topic, and it is too late to designate new experts  This motion is too vague.  It does not identify any particular testimony or documents to be excluded.  If at trial Defendant attempts to have a witness testify on expert issues that Defendant did not previously disclose during discovery and did not list in its expert designations, Plaintiff should object at that time.

            The motion is denied without prejudice to objections at trial.

            The moving party is to give notice.