Judge Laura A. Seigle, Case BC475956 2022-11-01 Tentative Ruling

Judge: Laura A. Seigle, Case: BC475956, Date: 2022-11-01 Tentative Ruling

Case Number: BC475956 Hearing Date: November 1, 2022 Dept: 15

[TENTATIVE] ORDER RE MOTIONS IN LIMINE AND TO SEVER

Plaintiffs’ MIL No. 1

Plaintiffs move to exclude evidence of Hernandezcueva’s past drug use as irrelevant and unduly prejudicial. This evidence is more prejudicial than probative. For example, no party submitted expert testimony that the prior drug use could have caused or contributed to his illness and death.

The motion is granted.

Plaintiffs’ MIL No. 2

Plaintiffs move to exclude the testimony of defense expert Gary Paoli that Hernandezcueva was not exposed to asbestos as too speculative. Plaintiffs argue that because Paoli has no personal knowledge of the construction activities at Fluor and because he bases his opinion on hearsay documents, his conclusion that Hernandezcueva was not exposed to asbestos is speculative.

Experts can rely on evidence other than their personal experience. For example, they can rely on admitted evidence and background information accepted in their field. (People v. Sanchez (2016) 63 Cal.4th 665, 685.) They can even rely on hearsay and tell the jury in general terms that they relied on hearsay, so long as they do not tell the jury the contents of the hearsay. (Id. at pp. 685-686.) Plaintiffs did not show that Paoli has no reliable basis for his opinion.

The motion is denied without prejudice to objections at trial.

Plaintiffs’ MIL No. 3

This motion seeks to preclude E.F. Brady from arguing that Hernandezcueva was not exposed to asbestos because a prior jury determined he was exposed from a product installed by E.F. Brady. Plaintiffs argue the 2013 trial resulted in an answer to a special verdict question finding that Hernandezcueva was exposed to asbestos released from a product installed by E.F. Company. After that prior trial, the trial court granted a motion for a nonsuit, Plaintiffs appealed, and the Court of Appeal reversed, sending the case back to the trial court. Plaintiffs contend collateral estoppel bars re-litigation of the issue of exposure against E.F. Brady.

However, Plaintiffs recognize that a prerequisite to collateral estoppel is that “the decision in the former proceeding was final and on the merits.” (Motion at p. 4.) “ ‘As generally understood, “[t]he doctrine of res judicata gives certain conclusive effect to a former judgment in subsequent litigation involving the same controversy.” [Citation.] The doctrine “has a double aspect.” [Citation.] “In its primary aspect,” commonly known as claim preclusion, it “operates as a bar to the maintenance of a second suit between the same parties on the same cause of action. [Citation.]” [Citation.] “In its secondary aspect,” commonly known as collateral estoppel, “[t]he prior judgment ... ‘operates’ ” in “a second suit ... based on a different cause of action ... ‘as an estoppel or conclusive adjudication as to such issues in the second action as were actually litigated and determined in the first action.’ [Citation.]” [Citation.] “The prerequisite elements for applying the doctrine to either an entire cause of action or one or more issues are the same: (1) A claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding. [Citations.]” ’ [Citation.] ” (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797.)

Here there is no final judgment on the merits. Plaintiffs cite no law for their assertion that a jury’s finding on one question in a special verdict form is final. (Motion at p. 4.) The law is to the contrary. (Code Civ. Proc., § 1049; Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 303 [“a judgment is not ‘final’ as long as it remains subject to direct attack by appeal”].) The 2013 jury verdict was in no sense final, as illustrated by the granting of the motion for nonsuit, the appeal, and this ongoing case against E.F. Brady nearly 10 years later.

The motion is denied.

Plaintiffs’ MIL No. 4

Plaintiffs seek to exclude evidence that chrysotile asbestos does not cause mesothelioma or that there must be some minimum exposure. This motion is too vague. Plaintiffs do not identify any specific expert testimony to be excluded.

The motion is denied without prejudice to objections at trial.

Plaintiffs’ MIL No. 5

Plaintiffs seek to exclude the testimony of defense expert Robert Gallucci that Hernandezcueva was not exposed to asbestos as too speculative. Plaintiffs argue that because Gallucci has no personal knowledge of the construction activities at Fluor, his conclusion that Hernandezcueva was not exposed to asbestos is speculative.

The motion is denied without prejudice to objections at trial.

Plaintiffs’ MIL No. 6

Plaintiffs move to preclude argument that the Hamilton brand joint compound used at the location where Hernandezcueva worked contained asbestos from anyone other than Union Carbide because Plaintiff says there is no such evidence. This is a factual issue for the jury to decide.

If Defendants refer in opening statement to evidence that does not exist, such as another source of asbestos, then Plaintiffs can tell the jury in closing that Defendants promised certain evidence in opening and Defendants then failed to deliver.

The motion is denied without prejudice to objections at trial.

Plaintiffs’ MIL No. 7

Plaintiffs move to preclude Defendants from arguing that they delivered Asbestos Toxicology Reports to Hamilton Materials or any defendants because Plaintiff says there is no such evidence. This is a factual issue for the jury to decide.

If Defendants refer in opening statement to evidence that does not exist, such as the delivery of toxicology reports, then Plaintiffs can tell the jury in closing that Defendants promised certain evidence in opening and Defendants then failed to deliver.

The motion is denied without prejudice to objections at trial.

Plaintiffs’ MIL No. 8

Plaintiffs move to exclude evidence that Hernandezcueva was exposed to asbestos in Mexico because Plaintiff says there is no such evidence. This is a factual issue for the jury to decide.

If Defendants refer in opening statement to evidence that does not exist, such as exposure to asbestos in Mexico, then Plaintiffs can tell the jury in closing that Defendants promised certain evidence in opening and Defendants then failed to deliver.

The motion is denied without prejudice to objections at trial.

Plaintiffs’ MIL No. 9

Plaintiffs make 13 motions in this one document. Most of these motions should have been resolved in a good faith meet and confer process or did not need to be made as they are covered by the July 8, 2022 CMO. Generally, making motions in limine addressed in the July 8, 2022 CMO is a waste of attorney time and court resources.

One, part a: Plaintiffs seek to exclude evidence of insurance coverage or collateral source benefits. Pursuant to the July 8, 2022 CMO, this motion is deemed made and granted. Defendants did not show good cause to depart from the order. Therefore the motion is granted, except as to evidence of insurance to establish the actual amount paid of any medical bill.

One, part b: Plaintiffs seek to exclude evidence that Jovana Collantes has remarried. This fact is irrelevant. The motion is granted. The parties should have been able to stipulate to this.

Two: Plaintiff seek to exclude evidence of amounts of settlements. Pursuant to the July 8, 2022 CMO, this motion is deemed made and granted. Defendants did not show good cause to depart from the order. Therefore the motion is granted.

Three: Plaintiffs seek to exclude evidence that they have not attempted to settle. Pursuant to the July 8, 2022 CMO, this motion is deemed made and granted. Defendants did not show good cause to depart from the order. Therefore the motion is granted. However, the parties must engage in settlement discussions before they go to trial. If the parties are interested in an MSC, they should inform the court at the FSC. Otherwise, the parties should have a plan to engage in formal settlement discussions.

Four: Plaintiffs seek to exclude evidence of a family history of non-asbestos cancer. Defendants do not oppose the motion. Therefore, the parties are to meet and confer on a stipulation.

Five: Plaintiff seek to exclude any evidence of exposure to products of defendants who were dismissed in this case. This motion is too vague. For example, if a dismissed defendant made a product that was then used by a defendant still in the case, evidence of that product is relevant. The motion is denied without prejudice to objections at trial.

Six: Plaintiffs seek to preclude argument of the effect of a judgment on the finances of a defendant. Defendants do not oppose the motion. Therefore the parties are to meet and confer on a stipulation.

Seven: Plaintiffs move to exclude evidence of other companies’ bankruptcies. Pursuant to the July 8, 2022 CMO, this motion is deemed made and granted. Defendants did not show good cause to depart from the order. Therefore the motion is granted.

Eight: Plaintiffs move to exclude any argument that a defendant is not obligated to keep up with scientific discoveries and does not have a duty to test products. This motion is too vague and does not identify specific evidence to exclude. It is denied without prejudice to objections at trial.

Nine: Plaintiffs seek to preclude the argument that they had a duty to discover the health hazards of asbestos. Defendants do not oppose the motion. Therefore the parties are to meet and confer on a stipulation.

Ten: Plaintiffs seek to preclude the argument that a manufacture does not have a duty to test its asbestos products. This motion is too vague and does not identify specific evidence to exclude. It is denied without prejudice to objections at trial.

Eleven: This motion seeks to exclude evidence that E.F. Brady is no longer operational or is in bad financial condition or other facts designed to elicit sympathy. Because Defendants moved to bifurcate punitive damages, evidence of Defendants’ financial conditions is not admissible in the first phase of trial. Otherwise the motion is too vague and does not identify specific evidence to exclude. It is denied without prejudice to objections at trial.

Twelve: Plaintiffs seek to exclude evidence Hernandezcueva immigrated from Mexico and information about his immigration status. Defendants state they will not introduce evidence of his immigration status. The parties are to meet and confer on a stipulation. However, the fact that he lived in Mexico at one time is not precluded by Evidence Code section 351.2 and may be relevant if Defendants have evidence of asbestos exposure in Mexico. The motion is denied in that respect.

Defendants’ MIL No. 1

Defendants seek to exclude the prior testimony of John Sorich who was an employee of a defendant that is no longer part of this case. Defendants argue Sorich’s prior testimony cannot be used against them because they were not defendants in this case when testimony occurred.

Plaintiffs state Sorich lives in Lake Forest, they have served him with a trial subpoena and therefore he is not unavailable. Because the parties have not shown Sorich is unavailable, his prior testimony is not admissible under Evidence Code sections 1291 and 1292, and in any event Plaintiffs state they plan to use his former testimony only for impeachment. The parties should have been able to resolve this motion through the meet and confer process.

Also, hearsay and Berroteran objections should be handled through the page/line designation process. The motion is off calendar.

Defendants’ MIL No. 2

Defendants seek to exclude testimony from John Sorich that 75% of the walls were original drywall as speculative because he previously conceded that that percentage was actually less and he was not employed at the building for a number of years.

These issues go to the weight to be given Sorich’s testimony. Also, the court cannot predict how Sorich will testify at trial. If he contradicts himself, the prior testimony can be used to impeach him.

The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 3

Union Carbide and Elementis move to exclude the prior deposition and trial testimony of Joel Hernandezcueva because they were not parties in the case when his deposition was taken and the first trial took place. Plaintiffs argue the deposition testimony is admissible under Evidence Code section 1292 because E.F. Brady cross-examined him with an interest and motive similar to Union Carbide and Elementis.

Plaintiffs’ claims against the three defendants are based on the same contentions about the same product: that asbestos from Union Carbide was distributed by Elementis and ended up in a product used by E.F. Brady in installing walls at the location where Hernandezcueva eventually worked.

E.F. Brady had an interest similar to the other two defendants in establishing that when Hernandezcueva was around the construction, he was not exposed to the asbestos contained in the product that originated from Union Carbide via Elementis or if he was exposed, it was his employer’s fault for not providing protective gear. For example, the attorney for E.F. Brady was active in objecting to questions by Plaintiff’s counsel about how Hernandezcueva was exposed to dust and debris. (See, e.g., Adams Decl., Ex. A at pp. 28-33.) And she asked questions about whether employees around the construction wore protective gear, other potential exposures to asbestos, and his work at the Fluor location. (Id. at pp. 77-78, 120, 125-126, 137.) If there are specific questions where E.F. Brady’s interests diverged from the other two Defendants’ interests, Defendants should object to those specific questions through the page/line designation process.

The motion is denied.

Defendants’ MIL No. 4

Defendants move to bifurcate punitive damages. Plaintiffs oppose the motion. However, when a defendant moves to bifurcate, the court is required to preclude the admission of evidence of the defendant’s financial condition until after the trier of fact returns a verdict for plaintiff awarding actual damages and finds that the defendant is guilty of malice, oppression or fraud. (Civ. Code § 3295, subd. (d).) The parties can discuss with the trial judge how Defendants will produce relevant evidence of their financial conditions at the appropriate time.

The motion is granted.

Defendants’ MIL No. 5

Defendants did not file this motion.

Defendants’ MIL No. 6

Defendants move to exclude any evidence of claims of false representation, failure to warn, fraud, breach of implied warranty, and strict liability because those claims were previously dismissed from the action. This motion is too vague and does not identify any specific evidence to be precluded. Evidence relevant to those claims may also be relevant to the remaining claims.

The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 7

Defendants seek to preclude all evidence that Hernandezcueva was exposed to Union Carbide’s asbestos because he testified he did not know who manufactured the material and whether it contained asbestos.

This is the same argument defendants often make in summary judgment motions. In moving for summary judgment, the defendant would need to show the plaintiff does not have and cannot reasonably obtain evidence that he was exposed to asbestos from the defendant. However, the plaintiff’s deposition testimony that he did not recall ever working with a product manufactured by the defendant may not be sufficient to shift the burden if the plaintiff is able to prove his case by another means. (Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1439.) Indeed, the Court of Appeal reversed a grant of summary judgment on this same argument. The Court of Appeal stated, “Because Union Carbide and Elementis did not submit conclusive evidence showing there were significant changes to the interior walls, a reasonable fact finder could infer Hernandezcueva more likely than not was exposed to their asbestos when he inhaled drywall debris at the Fluor complex.” Defendants do not address that conclusion in their motion.

The motion is denied because it is another attempt at a summary judgment motion without meeting the summary judgment standards.

Defendants’ MIL No. 8

Defendants move to preclude evidence of Union Carbide’s corporate structure and relationship with Dow Chemical and Dow as irrelevant. This motion is too vague. For example, an exhibit that is otherwise relevant and admissible may refer to an entity in Union Carbide’s corporate structure or to Dow Chemical.

The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 9

Defendants seek to exclude any reference to incidents where people died or were injured as a result of Union Carbide’s chemicals other than asbestos. Incidents not involving asbestos are irrelevant, more prejudicial than probative and would be unduly time consuming.

Plaintiffs argue that Union Carbide is going to present evidence of its good corporate character. If that occurs, Plaintiffs can ask to present rebuttal evidence.

The motion is granted.

Defendants’ MIL No. 10

Defendants move to exclude evidence of Hernandezcueva’s pain and suffering as irrelevant. Code of Civil Procedure section 377.34 allows pain and suffering in an action brought by a decedent’s personal representative or successor in interest on the decedent’s cause of action if the action was granted a preference before January 1, 2022.

According to the 2020 Court of Appeal decision, in the original action filed in 2011, Hernandezcueva did not name Union Carbide or Elementis. There was a trial in September 2013. After that trial, in April 2014, Hernandezcueva died. Then Plaintiffs filed this action against Union Carbide and later added Elementis. In December 2015, the Court of Appeal reversed the grant of a nonsuit for E.F. Brady. That earlier action against E.F. Brady was eventually consolidated with this case against Union Carbide and Elementis. (See 2020 Court of Appeal decision at p. 3.) Apparently the court granted preference in March 2018 based on the minor children’s status as plaintiffs. (Because this case is so old, the court’s electronic docket is incomplete and does not contain that record.)

Defendants argue that section 377.34 applies only to survival actions, not wrongful death actions. Section 377.34, subdivision (b) applies where there was a preference granted to “an action by a decedent’s personal representative or success in interest on the decedent’s cause of action,” in other words, a survival action. Here, when preference was granted in March 2018, Hernandezcueva had died years earlier. Thus in March 2018, there was no basis to grant preference on Hernandezcueva’s cause of action that his wife was pursuing after this death. The only basis for preference in March 2018 was because the minor children were plaintiffs pursuing their wrongful death cause of action. Because preference was not granted on the wife’s action as a personal representative of Hernandezcueva’s cause of action, this case does not fall within section 377.34’s allowance of pain and suffering damages.

The motion is granted.

Defendants’ MIL No. 11

Defendants seek to exclude evidence of the prior verdict in the trial against E.F. Brady as irrelevant and prejudicial because Union Carbide and Elementis were not present at that trial. Pursuant to the July 8, 2022 CMO, this motion is deemed made and granted. Plaintiffs did not show good cause to depart from that order.

Therefore, the motion is granted.

Defendants’ Motion to Sever

Union Carbide and Elementis move to sever the trial against them from the trial against E.F. Brady because John Sorich’s and Hernandezcueva’s prior testimony is not admissible against them. As stated above, Plaintiffs have subpoenaed Sorich for trial and do not plan to use his prior testimony except for impeachment, and at least some of Hernandezcueva’s prior testimony is admissible against them (although depending on the page/line designations and objections, some may not be admissible). Therefore severance is not necessary to avoid prejudice to Union Carbide and Elementis. If necessary, the trial court can give a limiting instruction that certain specific parts of Hernandezcueva’s testimony are admissible only against E.F. Brady.

The evidence and issues in the claims against Union Carbide and Elementis on one hand and E.F. Brady on the other hand – such as the work Hernandezcueva performed, the construction resulting in dust and debris, the product at issue, the presence or absence of asbestos at the location, his exposure and injuries, and Plaintiffs’ damages – are the same. Holding two trial on the same issues would be a waste of resources.

The motion is denied.

The moving party is to give notice.