Judge: Laura A. Seigle, Case: BC708543, Date: 2022-08-29 Tentative Ruling
Case Number: BC708543 Hearing Date: August 29, 2022 Dept: 15
[TENTATIVE] ORDER RE MOTIONS IN LIMINE
Plaintiffs’ MIL Nos. 1, 2
Plaintiffs
move to exclude evidence that the FDA has found talc to be safe because the FDA
has no regulatory authority over cosmetic talc.
FDA determinations might be the type of information experts rely
on. If an expert establishes that this
is the type of background information relied upon by experts, the evidence may
be relevant and may be admissible even if hearsay.
Plaintiffs also state the
FDA has never determined talc is safe.
If there is no evidence that the FDA has found talc to be safe, then
there is nothing to exclude. If a party
in opening statement refers to evidence that does not exist, the other side can
point out to the jury that the party promised to show evidence on an issue and
then failed to deliver on that promise at trial.
Plaintiffs argue evidence
of GRAS should be excluded because this is not a food case. If an expert establishes that this is the
type of background information relied upon by experts, the evidence may be
relevant and may be admissible even if hearsay.
Plaintiffs are concerned
about a FDA survey in 2009-2010, which Plaintiffs contend is irrelevant because
it addressed talc from different mines than the talc at issue here. This survey might be the type of material
experts rely on. If an expert is relying
on this survey, Plaintiffs can cross-examine the expert about the source of the
talc and argue to the jury that it should not give it any weight.
The
motions are denied without prejudice to objections at trial.
Plaintiffs’ MIL No. 3
Plaintiffs move to
exclude evidence about regulatory agencies’ workplace asbestos exposure limits
as irrelevant and misleading. This is
the type of material an expert may rely on, and it may be admissible if an
expert proves it is the type of information relied upon by experts in the
field. If an expert relies on workplace
exposure limits, the other parties can cross-examine the expert about the
difference between workplace exposure and cosmetic use and argue the jury
should give the exposure limits no weight.
The
motion is denied without prejudice to objections at trial.
Plaintiffs’ MIL No. 4
Plaintiffs
move to exclude argument that everyone would have mesothelioma if talc was not
safe. This is a motion about causation
and how much exposure is necessary before a person develops mesothelioma. Pursuant to the July 8, 2022 CMO, motions
about causation are deemed made and denied without prejudice to contemporaneous
objections at trial.
The
motion is denied without prejudice to an objection at trial.
Plaintiffs’ MIL No. 5
Plaintiff
seek to exclude evidence that any person other than plaintiff used talcum
powder as irrelevant and confusing. This
motion is too vague. The Court cannot
predict how this issue could arise at trial.
The motion is denied without prejudice to an objection at trial.
Plaintiffs’ MIL No. 6
Plaintiffs seek to
exclude evidence of a procedure called talc pleurodesis as not relevant to
causation and irrelevant, prejudicial, and confusing to the jury. If Plaintiff had this procedure, the motion
is denied. If Plaintiff did not have
this procedure, the motion is granted as the evidence would require an undue amount
of trial time and confusing medical evidence explaining the purposes of the
procedure and when and how it is used.
Plaintiffs’ MIL No. 7
Plaintiffs
move to exclude evidence of talc mines not at issue in this case as irrelevant
and more prejudicial than probative. This
motion is too vague. Plaintiffs do not
identify any specific evidence or testimony by any particular witness that they
wish to exclude.
The motion is denied
without prejudice to an objection at trial.
Plaintiffs’ MIL No. 8
Plaintiffs
move to exclude two papers by Victor Roggli because the papers do not involve
cosmetic talc. The papers themselves may
not be admissible unless an expert shows they are the type of background information
relied upon by experts in the field, but an expert might rely on the
papers. That the papers do not involve
cosmetic talc goes to the weight to be given opinions based on those
papers. Plaintiffs can cross-examine any
witness who relies on those papers about the fact that this case concerns
cosmetic talc and the papers did not examine cosmetic talc. If a party seeks to admit the papers,
Plaintiffs should object at that time.
The
motion is denied without prejudice to an objection at trial.
Plaintiffs’ MIL No. 9
No
motion was filed.
Plaintiffs’ MIL No. 10
Plaintiffs
seek to exclude the complaint, the preliminary fact sheet, and the fact that
other defendants were sued. Pursuant to
the July 8, 2022 CMO, this motion is deemed made and granted “but such order
does not affect any allocation of fault under Proposition 51.” Defendant did not show good cause to depart
from this order.
Therefore
the motion is granted but this order does not affect any allocation of fault
under Proposition 51.
Plaintiffs’ MIL No. 11
No
motion was filed.
Plaintiffs’ MIL No. 12
This
motion seeks to exclude any reference to any orders or rulings in other cases
excluding or limiting the testimony of Plaintiff’s experts. This motion is too vague. If it seeks to exclude exhibits consisting of
orders from other courts, Plaintiffs should object at trial if another party
seeks to admit such a document. If the
motion seeks to preclude questions to the expert about whether other courts
have limited or excluded the expert’s testimony in other cases, the Court
cannot determine before trial whether such a question is proper. For example, the questions could be proper
for impeachment purposes if the expert testifies that no court has ever limited
the expert’s testimony.
The
motion is denied without prejudice to objections at trial.
The moving party is to give notice.