Judge: Laura A. Seigle, Case: BC475956, Date: 2023-03-27 Tentative Ruling

Case Number: BC475956    Hearing Date: March 27, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTIONS IN LIMINE AND TO SEVER

Plaintiffs’ MIL No. 10

            Plaintiffs move to exclude a timeline of the Fluor Corporation from Fluor’s website, screenshots from a Dun & Bradstreet website, a Los Angeles Times article, and something called Reflected Ceiling Plans as hearsay.  Defendants Union Carbide Corporation and Elementis Chemicals, Inc. opposed.

Timeline

Plaintiffs contend the defense expert opines that Fluor Corporation acquired Daniels Construction in 1977 and formed Daniel International in 1978 based on the Fluor Corporation timeline and Dun & Bradstreet information.  Generally information from websites is hearsay if offered for the truth of the matter asserted, as is the situation here.

Defendants state the timeline may be a party admission under Evidence Code sections 1220, 1222, and 1230.  Section 1220 applies to a statement “offered against the declarant in an action in which he is a party in either his individual or representative capacity.”  Fluor is no longer a party in this action and so the timeline cannot be offered against it at trial.  Section 1222 applies to a statement offered against a party if the statement was made by a person authorized by the party to make statements for the party.  Defendants submitted no evidence that they authorized Fluor to make the statements on the timeline.  Section 1230 applies where the declarant is unavailable as a witness and the statement was contrary to the declarant’s interest.  Defendants did not show that whomever created the timeline is unavailable as a witness. 

In sum, Defendants did not establish the admissibility of the timeline.  Therefore, the motion is granted to the extent that the expert cannot relate the contents of the timeline to the jury unless the contents of the timeline are first admitted.  The expert can still rely on the timeline if he establishes it is the type of material relied upon by experts in his field.

Dun & Bradstreet Website

The expert also apparently relied on screenshots from a Dun & Bradstreet website showing the date of formation and the office address of two businesses, which are hearsay if offered for the truth of the matter asserted.  Plaintiffs contend Dun & Bradstreet is highly esteemed.  This is the type of information that an expert might be able to establish is general background information.  The Dun & Bradstreet website reveals nothing about the particular events in the case being tried.  (People v. Veamatahau (2020) 9 Cal.5th 16, 27.)  If the expert establishes that the Dun & Bradstreet website is generally accepted by experts in his field as reliable, it may be general background information that the expert can tell the jury.  (Id. at p. 32.) 

The motion is granted unless the expert establishes that the Dun & Bradstreet website contains general background information generally accepted as reliable by experts in his field.

Los Angeles Times Article

            Plaintiffs contend the defense expert opines, based on the Los Angeles times article, that Trammell Crow had tenant work done in 1984 or 1985.  The article is hearsay if offered for the truth of the matter asserted – that the tenant work was done in 1984 or 1985.  Defendants argue the article is admissible because major newspapers are relied upon as credible.  Neither case cited by Defendants held that a newspaper article is admissible because major newspapers are credible.  If the law was that major newspapers are credible and accurate as a matter of law, defamation cases against major newspapers would automatically be dismissed. 

Defendant also argues the article is admissible as an ancient document under Evidence Code section 1331 because it is more than 30 years old.  Section 1331 does not merely require age; it also requires that “the statement has been since generally acted upon as true by persons having an interest in the matter.”  Defendant has not shown that anyone with an interest in the  matter has acted on the Los Angeles Times article as true since it was published.

            Defendant did not show that the Los Angeles Times article is admissible.  Therefore, the motion is granted to the extent that the expert cannot relate the contents of the article to the jury unless the contents of the article are otherwise admitted.  The expert can still rely on the article if he establishes it is the type of material relied upon by experts in his field.

            Reflected Ceiling Plans

            Plaintiffs contend the defense expert relies on Reflected Ceiling Plans but does not know the source of those documents.  An expert can rely on information, whether or not admissible, “that is of a type that reasonably may be relied upon by an expert informing an opinion upon the subject.”  (Veamatahau, supra, 9 Cal.5th at pp. 25-26, 32.)  The Reflected Ceiling Plans appear to be building plans.  Building plans might be the type of material experts rely upon.  However, according to Plaintiffs, the expert did not know where the Reflected Ceiling Plans came from.  If the expert cannot provide grounds for concluding the plans are authentic and accurate, then it is not reasonable for the expert to rely on the plans.  It is not reasonable for an expert to rely upon material that has not been authenticated and may be inaccurate.  Unless Defendants can authenticate the Reflected Ceiling Plans and establish they accurately represent what they purport to show, the motion is granted.  

Plaintiffs also move to exclude all hearsay evidence generally.  That motion is much too vague.

The motion is granted in part and denied in part.

Plaintiffs’ MIL No. 11

            Plaintiffs move to preclude any defense expert from testifying to inadmissible hearsay.  That motion is much too vague.

            More specifically, Plaintiffs move to preclude experts Allen Gibbs and James Crapo from disclosing the contents of non-testifying expert Victor Roggli’s report and opinions because his report and opinions are hearsay.  Defendants argue that Roggli can testify at trial as a fact witness about the scientific testing he did. 

            An expert cannot tell the jury facts the expert obtained from reading a non-testifying expert’s report.  (People v. Turner (2020) 10 Cal.5th 786, 821-822.)  The non-testifying expert’s report must first be admitted into evidence under an exception to the hearsay rule.  (Id. at p. 822.)  Therefore, Gibbs and Crapo cannot tell the jury facts they obtained from Roggli’s report unless Roggli’s report is first admitted.

            Defendant’s argument that Roggli can testify as a fact witness about his asbestos testing is not sound.  Roggli tested the decedent’s tissue for the presence of asbestos fibers after a defendant retained him as an expert in this case.  Such testing is far beyond the common experience.  (Evid. Code, § 801, subd. (a).)  He was able to do that testing because of his “special knowledge, skill, experience, training, or education.”  (Evid. Code, § 720.)  Allowing an expert to testify about his scientific testing without complying with the procedures for expert designation and expert discovery, simply because the expert has first-hand knowledge about the his testing, would gut the expert discovery rules.  

            The motion is granted to the extent that Gibbs and Crapo cannot disclose to the jury contents of Roggli’s report until the report is admitted.  Otherwise the motion is denied.

            The moving party is to give notice.