Judge: Laura A. Seigle, Case: BC645588, Date: 2022-08-22 Tentative Ruling

Case Number: BC645588    Hearing Date: August 22, 2022    Dept: 15

[TENTATIVE] ORDER RE MOTIONS IN LIMINE

Plaintiffs’ MIL No. 1

            Plaintiffs move to exclude reference to former parties and amend the caption to reflect only the remaining defendants.  Pursuant to the July 8, 2022 CMO, this motion is deemed made and granted, but not so as to affect any allocation of fault under Proposition 51.

            Accordingly, the motion is granted to that extent.

Plaintiffs’ MIL No. 2

            Plaintiffs move to exclude evidence or argument about which asbestos fibers caused the decedent’s disease and whether causation occurred after her disease was underway.  Pursuant to the July 8, 2022 CMO, motions about the substantial factor test and but for causation are deemed made and denied so long as the trial court intends to use CACI 435.

            Therefore, the motion is denied so long as the trial court intends to use CACI 435.

Plaintiffs’ MIL No. 4

            This motion seeks to exclude improper statements during voir dire and opening statements, including attacking Plaintiffs’ counsel, personalizing the case, referring to other plaintiffs in other lawsuits, and attacking Plaintiffs’ experts.  Pursuant to the July 8, 2022 CMO, a motion to exclude argument about counsel’s involvement in asbestos litigation is deemed made and granted; a motion to exclude argument asking the jurors to place themselves in the Plaintiffs’ position is deemed made and granted; and a motion to preclude preconditioning the jury is deemed made and denied.

            To the extent this motion falls into one of those CMO categories, it is deemed made and granted or made and denied.  Otherwise, the motion is too vague.  If an attorney makes objectionable arguments or asks improper questions of the jury pool, the other side should object at that time.

            The motion is granted in part and denied in part.

Plaintiffs’ MIL No. 5

            Plaintiffs seek to prevent Defendants from using experts designated by other parties who settled before trial and who were not deposed.  Pursuant to Code of Civil Procedure section 2034.310, a party may call a witness designated by another party if that witness was deposed or if the expert is called as a witness to impeach the testimony of another expert. 

            The motion is denied to the extent section 2023.310 is satisfied.  The motion is granted to the extent section 2023.310 is not satisfied.

Plaintiffs’ MIL No. 6

            Plaintiffs seek to exclude evidence that asbestos is the state rock as irrelevant and misleading.  Defendants argue that the fact that in 1965 California declared serpentine the state rock “is indicative that the community did not have knowledge about the hazards of asbestos at that time.”  Serpentine is not at issue in the case.  Testimony about the state rock will consume an undue amount of time and has very little probative value.

            The motion is granted.

Plaintiffs’ MIL No. 7

            Plaintiffs move to exclude references to the decedent’s family history of cancer as irrelevant and prejudicial.  Defendants do not oppose excluding evidence of the decedent’s father’s history of mesothelioma.

            The motion is granted to that extent. 

Plaintiffs’ MIL No. 8

            Plaintiffs seek to exclude all experts not deposed before the discovery cutoff date, require Defendants to identify experts they will call at trial, and limit experts’ trial testimony to the statements in their depositions. 

This is partly a discovery motion, not a motion in limine.  If a party fails to make an expert available for a deposition, the other party should file a motion to compel.  If the expert is ordered to appear for a deposition and fails, the other party should make a motion for discovery sanctions.  It is too late now for a discovery motion.  Also, this motion is too vague because Plaintiffs did not identify any particular expert to be excluded.

A motion to require a party to identify experts who will testify is not a motion in limine.  The parties are to follow the rules for preparing a joint witness list.

Under the July 8, 2022 CMO, a motion to exclude evidence not disclosed in discovery is deemed made and denied without prejudice to a contemporaneous objection at trial.  Thus, if an expert was asked a question in a deposition and did not answer the question, the motion is denied without prejudice.  Otherwise the motion is too vague and does not identify the specific topics to be excluded.  If an expert was never asked a question about a particular topic at the expert’s deposition, then the expert did not fail to provide answers about that topic.

The motion is denied without prejudice to a contemporaneous objection at trial.

Plaintiffs’ MIL No. 10

            This motion seeks to exclude evidence that the FDA regulates the talc industry and has determined that cosmetic talc is safe and does not contain asbestos.  This motion is unopposed and therefore is granted.

Plaintiffs’ MIL No. 12

            Plaintiffs move to exclude evidence and argument that the decedent’s shunt or inflammation caused or contributed to her mesothelioma because there is no basis for such an opinion.  Plaintiffs cite testimony from Dr. Richard Attanoos, Dr. Suresh Moolgavkar, Dr. Vachani, and Dr. Victor Roggli as being deficient.  Plaintiffs argue “the articles relied upon by Defendants’ experts are not epidemiological studies but case reports or case-series reports” (Motion at p. 3), and they failed “to identify even a single study demonstrating a causal link between shunts and/or inflammation and peritoneal mesothelioma.”  (Motion at p. 4.)  Plaintiffs contend that the one study that points to a causal relationship is “merely a case report” and therefore insufficient to “establish to a reasonable degree of certainty a causal link between inflammation/shunts and perioneal mesothelioma.  (Ibid.)  Therefore, the experts’ opinions are speculative.  (Ibid.) 

            In Kline v. Zimmer, Inc. (2002) 79 Cal.App.5th 123, the court held that when a defendant seeks to introduce causation opinions to challenge the causation opinion of the plaintiff’s expert rather than to prove an actual alternative cause, the defendant can offer “expert opinions offered to less than a reasonable medical probability that [the plaintiff’s] injuries may have been attributable to other causes.”  (Id. at p. 132.)  “Such defense expert opinions could cast doubt on the accuracy and reliability of a plaintiff’s expert.  The jury is entitled to consider such evidence in deciding whether the plaintiff’s expert is exaggerating his or her opinion.”  (Ibid.)

1.         Moolgavkar and Vachani

            Defendants state that Moolgavkar does not opine that the shunt caused the mesothelioma.  (Opposition at p. 2.)  Plaintiff cites Moolgavkar and Vachani testifying that they are not going to opine that inflammation caused the mesothelioma.  (Motion at pp. 5, 6.)  In any event to the extent they plan to testify that Plaintiff’s mesothelioma may have been attributable to other causes, such as inflammation and shunts, such opinions do not need to be made with a reasonable medical probability.  Therefore the motion is denied as to Vachani and Moolgavkar. 

            2.         Smith

            Plaintiffs only refer to Dr. Steven Smith once in passing in their motion.  (Motion at p. 4.)  Defendants state that Smith opines, based on epidemiological studies, that inflammation and other factors caused the mesothelioma.  (Opposition at p. 2.)  Plaintiffs do not quote or cite any opinion by Smith that is unsupported by studies or evidence.  Therefore, the motion is too vague and denied as to Smith.

            3.         Attanoos

            Plaintiffs cited Attanoos’s testimony that various factors, including inflammation may have played an important role in the development of the mesothelioma but that he cannot state that it is more likely than not.  (Motion at pp. 10-11.)  Plaintiffs argue this testimony that inflammation may have been a significant factor “goes against California causation requirements.”  (Motion at p. 12.)  To the contrary, such an opinion is allowable under Kline.  The motion is denied.

            4.         Roggli

            Plaintiffs argue Roggli’s opinion that the decedent’s mesothelioma was spontaneous or caused by inflammation is speculative because he testified there are “a lot of gaps that need to be filled in” and he had no epidemiological studies.  (Motion at pp. 4, 6.)  Plaintiffs contend “the case studies while suggestive do not establish to a reasonable degree of certainty a causal link.”  (Motion at p. 4.)  Again, that is not the standard required for a defendant presenting evidence to challenge the plaintiff’s causation opinions.  The suggestive case studies are sufficient basis for the opinion under Kline.

            The motion is denied without prejudice to a contemporaneous objection at trial.

Plaintiffs’ MIL No. 13

            Plaintiffs move to exclude evidence that there was no autopsy on the decedent as irrelevant and prejudicial.  This motion is unopposed and therefore is granted. 

Plaintiffs’ MIL No. 14

            This motion seeks to exclude evidence of regulatory limits for asbestos exposure as irrelevant and more prejudicial than probative because the purpose of those limits was to reduce the risk of disease, not eliminate the risk.  This evidence could be relevant to notice and knowledge, and experts may rely on regulations.  Also, the motion is too vague in referring generally to all regulatory limits. 

            The motion is denied without prejudice to a contemporaneous objection at trial.

Plaintiffs’ MIL No. 15

            Plaintiffs seek to exclude evidence that the decedent’s mesothelioma was not caused by asbestos.  This motion is too vague.  It did not identify any testimony or opinion by an expert to be excluded.  Also, as explained above in connection with Plaintiffs’ MIL No. 12, this type of evidence may be admissible.

            The motion is denied without prejudice to a contemporaneous objection at trial.

Plaintiffs’ MIL No. 16

            Plaintiffs move to exclude speculative evidence about asbestos content of talc from experts Christy Barlow and Sheldon Rabinovitz.  Johnson & Johnson designated Barlow, and the case against that defendant is stayed.  Therefore this part of the motion is off calendar.

            Plaintiff states Rabinovitz assumes with no basis that talc had less than one percent asbestos.  (Id. at p. 9.)  Defendants contend dose reconstruction, which is what Rabinovitz did (see, e.g., Index, Ex. F at pp. 11-12), is a widely accepted scientific method.  (Motion at p. 4.)

            The criticism of Rabinovitz’s work goes to its weight.  The motion is denied without prejudice to a contemporaneous objection at trial. 

Defendants’ MIL No. 2

            Defendants move to exclude an article about asbestos in talcum powder because it does not analyze the product at issue in this case, the authors were paid to conduct the study as part of litigation, and it is hearsay and not reliable.

            Plaintiffs counter that the source talc analyzed in the article is from the same talc source as at issue in this case.  Therefore, the article is not irrelevant.

            That the authors were paid as part of prior litigation goes to their potential bias and the weight for the jury to give to the article.

            Whether the article is the type of material experts in the field generally rely upon can be established by the experts at trial.  If it is, the experts may rely on it, regardless of whether it is hearsay.  If an expert establishes that the article is general background information of the type relies upon by experts in the field, the article may be admissible.

            The motion is denied without prejudice to a contemporaneous objection at trial.

Defendants’ MIL No. 6

            Defendants seek to exclude arguments that they do not want anyone else to get mesothelioma.  This is too vague.  If someone makes an inappropriate comment during the trial, the other side should object at that time.

            The motion is denied without prejudice to a contemporaneous objection at trial.

Defendants’ MIL No. 13

            This motion seeks to exclude Dr. Barry Horn’s opinion that mesothelioma caused the decedent’s death because he has no basis for that opinion and her medical records show she died of Budd-Chiari.  The argument that asbestos cannot be the cause because the medical records show another cause of the illness and death is a motion for summary judgment, not a proper motion in limine.

            Defendants argue Horn has no basis for his opinion because he is not a Budd-Chiari expert, does not have the right specialty, and reviewed only a small portion of the medical records.  (Motion at p. 7.)  Defendants contend that because Budd-Chiari is progressive and fatal, only it can be the reasonable cause of her death.  (Ibid.)  Plaintiffs point out Horn’s qualification.  (Opposition at p. 3.)  Horn’s background and review of the medical records go to the weight to be given his opinions.  Defendants cite no law that there cannot be two causes of an illness.

            The motion is denied without prejudice to a contemporaneous objection at trial.

Defendants’ MIL No. 26

            Defendants seek to exclude evidence of Plaintiff Louis Wanger’s lost income related to the death of his wife.  Plaintiff Louis Wagner states he is not seeking economic damages related to his inability to work after the loss of his wife.  Therefore, the motion is denied.

Defendants’ MIL No. 30

            Defendants move to preclude Louis Wagner from testifying about his wife being placed on the Baylor liver transplant list as hearsay because he only knew about this based on his wife’s statements to him.  Plaintiff argues there are other sources of his knowledge about the transplant list, including his personal knowledge from traveling with his wife to the transplant center and making plans for the transplant.

            The motion is denied without prejudice to a contemporaneous objection at trial if Louis Wagner fails to establish a non-hearsay source of his knowledge.

Defendants’ MIL No. 31

            This motion seeks to exclude evidence that mesothelioma was a cause of death because Plaintiffs failed to allow an autopsy of his wife.  This is in effect a discovery sanctions motion and should have been brought as such under the discovery statutes.  Furthermore, Defendant did not cite legal authority requiring an autopsy to preserve evidence for litigation.

            The motion is denied without prejudice to the trial judge deciding to give CACI 203 or 204.

Defendants’ MIL No. 32

            Defendants seek to exclude evidence of post-sale failures to warn.  Pursuant to the July 8, 2022 CMO, this motion is deemed made and denied without prejudice to a contemporaneous objection at trial.  Defendants did not show good cause to depart from this order.

            The motion is denied without prejudice to a contemporaneous objection at trial.

Defendants’ MIL No. 33

            Defendants move to exclude evidence or argument that a seller of products had a duty to investigate and test the products they sold.  Pursuant to the July 8, 2022 CMO, this motion is deemed made and denied without prejudice to a contemporaneous objection at trial.  Defendants did not show good cause to depart from this order.

            The motion is denied without prejudice to a contemporaneous objection at trial.

Defendants’ MIL No. 35

            This motion was withdrawn.

The moving party is to give notice.