This case was last updated from Los Angeles County Superior Courts on 11/24/2021 at 21:56:06 (UTC).

LARRY E. LEWIS, ET AL. VS 3M COMPANY, ET AL.

Case Summary

On 05/11/2020 LARRY E LEWIS filed a Personal Injury - Asbestos Product Liability lawsuit against 3M COMPANY. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judges overseeing this case are DAVID S. CUNNINGHAM and STUART M. RICE. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******8600

  • Filing Date:

    05/11/2020

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Asbestos Product Liability

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

DAVID S. CUNNINGHAM

STUART M. RICE

 

Party Details

Plaintiff

LEWIS LARRY E.

Defendants

3M COMPANY

BWDAC INC. FKA BWD AUTOMOTIVE CORPORATION

READING CRANE & ENGINEERING CO.

KAISER GYPSUM COMPANY INC.

CROWN CORK & SEAL COMPANY INC.

PNEUMO ABEX LLC FKA PNEUMO ABEX CORPORATION

JOY GLOBAL SURFACE MINING INC. FKA P&H MINING EQUIPMENT INC. FKA HARNISCHFEGER CORPORATION

ROHR INC. DBA GOODRICH AEROSPACE

CBS CORPORATION FKA VIACOM INC. SUCCESSOR BY MERGER WITH CBS CORPORATION FKA WESTINGHOUSE ELECTRIC CORPORATION

BASF CORPORATION

GENERAL ELECTRIC COMPANY

ITW EAE

JOHN CRANE INC.

THE GOODYEAR TIRE & RUBBER COMPANY

CIRRUS ENTERPRISES LLC

MORSE TEC LLC FKA BORGWARNER MORSE TEC LLC AND SUCCESSOR-BY-MERGER TO BORG-WARNER CORPORATION

GOODRICH CORPORATION

MCNEIL OHIO CORPORATION

MORGAN ENGINEERING SYSTEMS INC.

23 More Parties Available

Attorney/Law Firm Details

Plaintiff Attorney

FOLEY CRYSTAL GAYLE

Defendant Attorneys

DEJARDIN BRADFORD JOHN

AMEELE MELANIE LEIGH

BECKLEY JULIA MARTINESCU

EBRAHAMIAN SALIN

LONG JAYME C

LANGBORD PETER BENNETT

CONWAY PATRICIA K.

FOLEY PATRICK J.

MCCLAIN FLORENCE A.

MEYERS LESA M.

NICHOLS STEPHEN M.

RIDLEY SHAWN MICHAEL

SAYRE MARK DAVID

WEGLARZ CLAIRE C.

GLASPY DAVID MICHAEL

HARTLEY EDWARD E.

SHAFFER D SCOTT

STROTZ PETER A.

ULLOA EDWARD R.

7 More Attorneys Available

 

Court Documents

Request for Dismissal

11/2/2021: Request for Dismissal

Notice of Change of Address or Other Contact Information

10/21/2021: Notice of Change of Address or Other Contact Information

Request for Dismissal - REQUEST FOR DISMISSAL NOT ENTERED

7/2/2021: Request for Dismissal - REQUEST FOR DISMISSAL NOT ENTERED

Minute Order - MINUTE ORDER (STATUS CONFERENCE (SIMMONS HANLY CONROY))

7/13/2021: Minute Order - MINUTE ORDER (STATUS CONFERENCE (SIMMONS HANLY CONROY))

Notice of Change of Address or Other Contact Information

7/21/2021: Notice of Change of Address or Other Contact Information

Minute Order - MINUTE ORDER (COURT ORDER)

8/31/2021: Minute Order - MINUTE ORDER (COURT ORDER)

Answer - DEFENDANT EATON CORPORATION'S ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT FOR WRONGFUL DEATH/SURVIVOR CLAIMS-ASBESTOS

4/16/2021: Answer - DEFENDANT EATON CORPORATION'S ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT FOR WRONGFUL DEATH/SURVIVOR CLAIMS-ASBESTOS

Answer - DEFENDANT JGSM'S ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT FOR WRONGFUL DEATH AND SURVIVAL ACTION(NEGLIGENCE, STRICT LIABILITY, FALSE REPRESENTATION, INTENTIONAL TORT, PREMISE OWNER/CONT

4/16/2021: Answer - DEFENDANT JGSM'S ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT FOR WRONGFUL DEATH AND SURVIVAL ACTION(NEGLIGENCE, STRICT LIABILITY, FALSE REPRESENTATION, INTENTIONAL TORT, PREMISE OWNER/CONT

Answer - DEFENDANT SCHNEIDER ELECTRIC USA, INC.'S ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT

4/16/2021: Answer - DEFENDANT SCHNEIDER ELECTRIC USA, INC.'S ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT

Answer - ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT FOR DAMAGES FOR WRONGFUL DEATH AND SURVIVAL ACTION

4/16/2021: Answer - ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT FOR DAMAGES FOR WRONGFUL DEATH AND SURVIVAL ACTION

Answer - DEFENDANT GOODRICH CORPORATION'S ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT FOR WRONGFUL DEATH/SURVIVAL

4/19/2021: Answer - DEFENDANT GOODRICH CORPORATION'S ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT FOR WRONGFUL DEATH/SURVIVAL

Answer - DEFENDANT SHELL OIL COMPANY'S ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT FOR WRONGFUL DEATH/SURVIVAL ACTION; JURY DEMAND

4/19/2021: Answer - DEFENDANT SHELL OIL COMPANY'S ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT FOR WRONGFUL DEATH/SURVIVAL ACTION; JURY DEMAND

Answer - DEFENDANT WYETH HOLDINGS LLC'S ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT FOR WRONGFUL DEATH/SURVIVAL ACTION; REQUEST FOR JURY TRIAL

4/20/2021: Answer - DEFENDANT WYETH HOLDINGS LLC'S ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT FOR WRONGFUL DEATH/SURVIVAL ACTION; REQUEST FOR JURY TRIAL

Demand for Jury Trial - DEFENDANT PNEUMO ABEX LLC'S DEMAND FOR JURY TRIAL AND ESTIMATE OF LENGTH OF TRIAL

4/13/2021: Demand for Jury Trial - DEFENDANT PNEUMO ABEX LLC'S DEMAND FOR JURY TRIAL AND ESTIMATE OF LENGTH OF TRIAL

Answer - ANSWER OF DEFENDANT PNEUMO ABEX LLC TO PLAINTIFFS' SECOND AMENDED COMPLAINT FOR WRONGFUL DEATH/SURVIVAL ACTION

4/13/2021: Answer - ANSWER OF DEFENDANT PNEUMO ABEX LLC TO PLAINTIFFS' SECOND AMENDED COMPLAINT FOR WRONGFUL DEATH/SURVIVAL ACTION

Answer - DEFENDANT BP CORPORATION NORTH AMERICA INC.'S ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT FOR WRONGFUL DEATH/SURVIVAL ACTION

4/16/2021: Answer - DEFENDANT BP CORPORATION NORTH AMERICA INC.'S ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT FOR WRONGFUL DEATH/SURVIVAL ACTION

Answer - DEFENDANT CHEVRON U.S.A. INC.'S ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT FOR DAMAGES (WRONGFUL DEATH)

4/16/2021: Answer - DEFENDANT CHEVRON U.S.A. INC.'S ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT FOR DAMAGES (WRONGFUL DEATH)

Request for Dismissal - REQUEST FOR DISMISSAL WITHOUT PREJUDICE

1/12/2021: Request for Dismissal - REQUEST FOR DISMISSAL WITHOUT PREJUDICE

179 More Documents Available

 

Docket Entries

  • 11/02/2021
  • DocketRequest for Dismissal (Without Prejudice); Filed by Larry E. Lewis (Plaintiff); Mariellen Lewis (Plaintiff); CBS Corporation (Defendant)

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  • 10/21/2021
  • DocketNotice of Change of Address or Other Contact Information; Filed by Chevron U.S.A., Inc. (Doe 501) (Defendant)

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  • 08/31/2021
  • DocketMinute Order ( (Court Order)); Filed by Clerk

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  • 08/31/2021
  • DocketClerks Certificate of Service By Electronic Service; Filed by Clerk

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  • 07/21/2021
  • DocketNotice of Change of Address or Other Contact Information; Filed by Peter Bennett Langbord, Esq. (Attorney)

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  • 07/13/2021
  • Docketat 1:45 PM in Department 15, Stuart M. Rice, Presiding; Status Conference ((Simmons Hanly Conroy)) - Held

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  • 07/13/2021
  • DocketMinute Order ( (Status Conference (Simmons Hanly Conroy))); Filed by Clerk

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  • 07/02/2021
  • DocketRequest for Dismissal (Not Entered); Filed by Larry E. Lewis (Plaintiff); Mariellen Lewis (Plaintiff)

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  • 04/20/2021
  • DocketAnswer; Filed by Wyeth Holdings LLC (Defendant)

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  • 04/19/2021
  • DocketAnswer; Filed by Shell Oil Company (Defendant)

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183 More Docket Entries
  • 06/17/2020
  • DocketAmendment to Complaint (Fictitious/Incorrect Name); Filed by Larry E. Lewis (Plaintiff); Mariellen Lewis (Plaintiff)

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  • 06/09/2020
  • DocketRequest for Dismissal; Filed by Larry E. Lewis (Plaintiff); Mariellen Lewis (Plaintiff)

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  • 06/08/2020
  • DocketAnswer; Filed by Kaiser Gypsum Company, Inc. (Defendant)

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  • 05/22/2020
  • DocketNotice (of Order Assigning Case); Filed by Larry E. Lewis (Plaintiff); Mariellen Lewis (Plaintiff)

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  • 05/20/2020
  • DocketCertificate of Mailing for ((Court Order) of 05/20/2020); Filed by Clerk

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  • 05/20/2020
  • DocketMinute Order ( (Court Order)); Filed by Clerk

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  • 05/11/2020
  • DocketSummons (on Complaint); Filed by Clerk

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  • 05/11/2020
  • DocketCivil Case Cover Sheet; Filed by Larry E. Lewis (Plaintiff); Mariellen Lewis (Plaintiff)

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  • 05/11/2020
  • DocketComplaint; Filed by Larry E. Lewis (Plaintiff); Mariellen Lewis (Plaintiff)

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  • 05/11/2020
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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Tentative Rulings

Case Number: *******8600 Hearing Date: July 18, 2022 Dept: 15

[TENTATIVE] ORDER RE MOTION FOR SUMMARY JUDGMENT

Plaintiffs Mariellen Lewis and Traci Lewis allege Larry Lewis, who worked at North American Rockwell and Rockwell International as a aircraft machinist, developed mesothelioma and died as a result of exposure to asbestos in FM-40 adhesive. Defendant Wyeth Holdings LLC, formerly known as American Cyanamid Company, moves for summary judgment and, in the alternative summary adjudication, on the grounds that (1) it did not cause Lewis’ mesothelioma, (2) Lewis’ employers were sophisticated intermediaries, (3) Defendant did not make any representations to Lewis, and (4) Defendant did not act with malice, oppression, or fraud.

To show that a plaintiff cannot establish an element of a cause of action, a defendant must make the initial showing “that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.) “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence – as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Id. at p. 855.) A defendant moving for summary judgment based on a defense must show it is a “complete defense.” (Id. at p. 850; Code Civ. Proc., 437c, subd. (p)(2).) To show a complete defense, the defendant must show that the undisputed facts support each element of the affirmative defense. (Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 289.) If the defendant makes its initial showing, the burden shifts to the plaintiff to demonstrate a triable issue of material fact. (Aguilar, supra, 25 Cal.4th at p. 850.)

A. Objections

1. Plaintiffs’ Objections

No. 1: Overruled.

Nos. 2, 3, 4: Sustained. The witness does not establish foundation for his knowledge about the sales invoices (for example, how learned about the ales invoices, how they were maintained, and where he found them) or a hearsay exception. The witness does not establish that the sales invoices are business records. However, even if the Court overruled the objections, the decision below would not change. That only a few sales invoices exist now does not establish the extent of sales decades ago.

No. 5: Overruled.

No. 6: Overruled. An expert can rely on hearsay.

No. 7: Sustained as to the portion about the invoices.

No. 8: Overruled. Although Dotson does not expressly establish that the United Airlines report is the type of report relied upon by experts in the filed, both sides’ experts discuss the contents of the report and assume it is the type of report relied upon by experts in the field. The report is not case-specific hearsay because it is not about the participants and events in this case. (People v. Veamatahau (2020) 9 Cal.5th 16, 26.)

No. 9: Sustained as to “not enough asbestos fibers are released . . . .” As discussed below, Dotson does not explain how he arrived at this conclusion. In any event, even if the Court overruled this objection, the decision below would not change.

No. 10: Sustained as to “FM-40 does not produce any significant concentration . . . .” As discussed below, Dotson does not explain how he arrived at this conclusion. In any event, even if the Court overruled this objection, the decision below would not change.

Nos. 11, 12, 13: Overruled.

No. 14: Overruled. See above.

No. 15: Sustained as to the Dotson conclusions, but as stated above, even if the Court overruled this objection, the decision below would not change.

No. 16: Overruled.

Nos. 17, 18, 19, 20, 21: Overruled.

2. Defendant’s Objections

Nos. 1-38: Overruled. Defendant argues most of the Garza declaration is irrelevant. While many of the declarations contain overly-long background sections going back decades, that background may be (minimally) relevant as context. Defendant argues Garza failed to “employ the same level of scientific rigor here as industrial hygienists would have in the field,” by for example taking air samples and going to the site. (Objections at pp. 5-6.) But Defendant cites no law that such a level of scientific rigor is required for an expert testifying in litigation. In cases involving exposure decades ago, taking samples and visiting the site is impossible. If this truly were the standard, very few experts would be able to opine in asbestos cases, and Defendants’ experts’ opinions would also be inadmissible because they too failed to take samples and visit the site. Defendant objects Garza did not test FM-40. Neither did Defendant’s experts. Defendant objects that Garza did not confirm Lewis’ deposition testimony about his work. In many asbestos cases, the person who claimed asbestos exposure has died by the time the experts stars working on the case, making it impossible for the expert to interview that person. These are matters for cross-examination, as are the rest of Defendant’s complaints about Garza’s analysis, and go to the weight the jury may give the opinions.

Nos. 39-58: Overruled. Defendant objections to much of the Cohen declaration as irrelevant. While many of the declarations contain overly-long background sections going back decades, that background may be (minimally) relevant as context. Defendant’s other complaints about Cohen’s declaration are matters for cross-examination and go to the weight the jury would give his conclusions.

Nos. 59-60: Overruled.

3. Plaintiffs’ Reply Objections

Nos. 1-3: Overruled.

B. Causation

Defendant contends Plaintiffs must prove both general causation and specific causation and that to prove general causation, Plaintiffs must “prove that the small amount of asbestos bound into an adhesive matrix is capable of causing mesothelioma.” (Motion at p. 10.) Defendant cites Johnson & Johnson Talcum Powder Cases (2019) 37 Cal.App.5th 292 for this proposition. (Motion at p. 10.) In that case, the question about general causation was whether “talc-based products” caused ovarian cancer, and experts testified that “talc in general may cause ovarian cancer.” (Johnson & Johnson, supra, 37 Cal.App.5th at pp. 297, 302.) The only other case Defendant cites is a federal case from the Tenth Circuit, which has does not apply California law and has no precedential authority here. The discussion in Johnson & Johnson about general causation does not support Defendant’s assertion that general causation is about whether a specific product, such as an adhesive, causes mesothelioma. Rather the court in Johnson & Johnson discusses whether “talc-based products” and “talc in general,” not a specific product, causes cancer. Thus, the question here is whether asbestos-based products or asbestos in general may cause mesothelioma, which Defendant does not dispute. Defendant’s focus on whether “the small amount of asbestos” in the adhesive could cause mesothelioma goes to the question whether the asbestos was a substantial factor in causing the plaintiff’s illness.

Defendant argues that asbestos in adhesives does not cause mesothelioma because the FM-40 adhesive is not friable, studies conclude that aircraft mechanics do not exhibit an increased risk for developing mesothelioma, the asbestos in the FM-40 adhesive was the less-potent chrysotile variety, and FM-40 contains only 8.9% asbestos, too small an amount to have caused Lewis’ mesothelioma. (Motion at pp. 11-12.) Defendant did not cite any law that the existence of an epidemiologic study showing an increased risk is a perquisite to proving causation. The lack of such studies is a topic for cross-examination and would go to the weight the jury gives Plaintiffs’ experts’ conclusions.

In support of its arguments, Defendant cites the Dotson Declaration. Dotson reviewed documents related to a United Airlines toxicological report of FM-41, which is also an adhesive, and contains 2.5% asbestos. (Dotson Decl., 14.) Dotson does not state that this report is reliable and the sort of report experts in the field rely upon. Because he did not establish those prerequisites, the contents of the report are hearsay. But that is beside the point because Dotson does not discuss the contents of the report, state what the report concluded, or explain why it is useful in analyzing FM-40, other than both are adhesives. Rather, he concludes that “not enough asbestos fibers are released from the sanding and drilling of FM-40 to cause any asbestos-related illness because MF-40 never contained more than 8.9% asbestos and is a highly encapsulated material.” (Id. at 15.) Dotson does not give any basis for the conclusion that not enough fibers are released or explain how the United Airlines report leads to that conclusion. Similarly, he concludes, “The asbestos largely remained in the adhesive matrix when sanded or drilled,” but does not explain what evidence compels that conclusion.

Defendant also cites the Mezei Declaration. He states that based on studies he identifies, motor vehicle mechanics exposed to chrysotile asbestos are not at an increased risk of developing mesothelioma. (Mezei Decl., 33.) He also identifies studies concluding that aerospace workers reported no increased risk of mesothelioma. (Id. at 39.) He refers to the United Airlines study, which showed low level exposure to chrysotile from sanding adhesives. (Id. at 48.) The expert declarations suggest that the only study of asbestos in adhesives used in airline manufacturing is the United Airlines study. If the United Airlines study is relied upon by experts in the field, which all of the experts seem to assume, it is admissible.

Assuming Dotson’s and Mezei’s conclusions based on the United Airlines study satisfies Defendant’s initial burden on causation, Plaintiffs submitted evidence showing a triable issue of material fact. First, they raise issues about the applicability of the United Airlines study here because the FM-41 adhesive contained one-third the amount of asbestos as FM-40. (Opposition at pp. 13-14; Cohen Decl., 63.) Also, Defendant’s experts describe studies showing a significant release of asbestos fibers from sanding similar adhesives. (Garza Decl., 69-72, 76G; Cohen Decl., 64.) Cohen opines that based on these studies, Lewis’ lifetime exposure could be more than enough to cause mesothelioma. (Cohen Decl., 65.) These are disputed issues of material fact for the jury.

Summary judgment is denied on this ground.

C. Duty to Warn

Defendant argues it had no duty to warn of the danger of sanding FM-40 because it had no reason to believe the product posed a danger. (Motion at p. 13.) Defendant refers to OSHA regulations which did not require a warning regarding FM-40 and contends that if OSHA does not regulate a product, then there can be no reasonable risk of harm from that product. (Ibid.) Defendant does not cite any law that (a) if there is no OSHA regulation concerning a product, that product poses no reasonable risk as a matter of law, or (b) if a manufacturer or employer complies with OSHA requirements, there is no duty to warn of dangers not covered by OSHA regulations as a matter of law. Also, Defendant did not cite any evidence that it, or Lewis’ employer, in fact complied with OSHA regulations on asbestos-containing products. Thus, this argument is lacking, both legally and factually.

Next Defendant argues it had no duty to warn because Rockwell was a “sophisticated intermediary.” (Motion at p. 14.) Defendant cites to language describing Rockwell as a “powerhouse” that manufactured tens of thousands of aircraft. (Ibid.) Under the sophisticated intermediary doctrine, “a supplier may discharge its duty to warn end users about known or knowable risks in the use of its product if it (1) provides adequate warnings to the product’s immediate purchaser, or sells to a sophisticated purchaser that it knows is aware or should be aware of the specific danger, and (2) reasonably relies on the purchaser to convey appropriate warnings to downstream users who will encounter the product. Because the sophisticated intermediary doctrine is an affirmative defense, the supplier bears the burden of proving that it adequately warned the intermediary, or knew the intermediary was aware or should have been aware of the specific hazard, and reasonably relied on the intermediary to transmit warnings.” (Webb v. Special Electric Co., Inc. (2016) 63 Cal.4th 167, 187.) Defendant did not submit evidence of all of these elements and therefore did not satisfy its burden on this affirmative defense.

Because Defendant did not satisfy its initial burden, the burden did not shift to Plaintiffs. Summary judgment is denied on this ground.

D. False Representation and Intentional Tort Causes of Action

Defendant argues Plaintiffs cannot prove the false representation and intentional tort causes of action because there is no evidence Lewis heard a false statement made on behalf of Defendant on which he relied. (Motion at p. 16.) Defendant points to Plaintiffs’ discovery responses, claiming they are factually-devoid. (Ibid.) In Special Interrogatory Nos. 16, 17, 19, and 20, Defendant asked Plaintiffs to state all facts and identify all persons supporting their false representation and intentional tort causes of action. Defendant did not attach the responses to these special interrogatories. The attached excerpt of responses ended with responses to Nos. 11 and 12, which contained only objections that the number of interrogatories exceeded that allowed under the CMO. (See, e.g., Gilmore Decl., Ex. K at p. 14.) The Court assumes that the responses to Nos. 16, 17, 19, and 20 were also objections. Nothing about the evidence can be inferred from objections.

The motion for summary adjudication is denied on these causes of action.

E. Punitive Damages

Defendant argues that Plaintiffs are not entitled to punitive damages because FM-40 did not cause Lewis’ mesothelioma and no government warning was required on the product. (Motion at p. 17.) As stated above, there are disputed facts about causation. And, Defendant cites no law that if no government warning is required, punitive damages are unavailable as a matter of law.

Defendant also argues that Plaintiffs’ discovery responses on punitive damages are factually-devoid. (Motion at p. 17.) Defendant cites to Plaintiffs’ response to Special Interrogatory No. 1. (Motion at p. 17 citing to Exs. K and M at p. 6:15-22.) Special Interrogatory No. 1 asked Plaintiffs to identify each asbestos-containing product which they contend caused Lewis to be exposed to asbestos. (See, e.g., Gilmore Decl., Ex. L at p. 3.) The Special Interrogatories asking for all facts, documents and witnesses supporting Plaintiffs’ claim for punitive damages were Nos. 25, 26, and 27. (See, e.g., id. at p. 6.) Defendant did not attach the responses to Special Interrogatory Nos. 25-27. (Gilmore Decl., Ex. M.) The attached excerpt of responses ended with responses to Nos. 11 and 12, which contained only objections that the number of interrogatories exceeded that allowed under the CMO. (See, e.g., Gilmore Decl., Ex. M at p. 14.) The Court assumes that the responses to Nos. 25-27 were also objections. Nothing about the evidence can be inferred from objections.

The motion for summary adjudication is denied on the claim for punitive damages.

The motion for summary judgment and, in the alternative, summary adjudication, is DENIED.

The moving party is to give notice.

[TENTATIVE] ORDER RE MOTIONS IN LIMINE

I. PLAINTIFFS’ MILS

Plaintiffs’ MIL No. 1

Plaintiffs move to exclude evidence of Larry Lewis’ smoking history and the smoking history of anyone he lived with as irrelevant because there is no evidence of any link between smoking and mesothelioma. Defendants contend the evidence is relevant because Defendant has evidence Lewis died of lung disease caused by smoking, not mesothelioma. Specifically, Defendants’ expert will testify he could not find evidence of asbestosis and therefore, Lewis’ lung cancer was not asbestos-attributable.

Because the cause of the lung disease remains disputed, the evidence may be relevant. The motion is denied.

Plaintiffs’ MIL No. 3

Plaintiffs seeks an order finding that Defendant Dexter Hysol Aerospace LLC (“Dexter”) intentionally destroyed evidence and prohibiting Dexter from discussing the evidence. This is not a proper motion in limine. Rather it is a request for discovery sanctions – evidentiary sanctions – under Code of Civil Procedure section 2023.010. (Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 12.) Plaintiffs did not follow the procedures to seek discovery sanctions.

Dexter’s failure to keep product packages and testing results can be the subject of examination at trial. If the evidence merits it, the trial court can decide to give CACI 204.

The motion is denied.

Plaintiffs’ MIL No. 4

Plaintiffs move to exclude testimony from Kyle B. Dotson because they anticipate he will testify about the law on employer responsibility and warning labels. Plaintiffs give examples of his deposition testimony about what actions employers should have taken to comply with the law. An expert is not permitted to testify as to legal conclusions, apply the law to the facts of the case, or opine on how the case should be decided, but is permitted to testify about industry practice and custom. If Dotson’s testimony at trial is framed as industry practice, it may be admissible in a way that it would not be admissible if it is presented as a legal requirement. For example, testimony about an industry practice that the employer was responsible for the employee’s protection may be admissible. If at trial Dotson attempts to give an improper legal conclusion, apply the law to the facts, or tell the jury how to decide the case, Plaintiffs’ counsel can object at that time.

Plaintiffs also states that Dotson’s testimony is more prejudicial than probative because he is not qualified, and his opinions are based on assumptions. Plaintiffs’ motion did not establish either of these objections.

The motion is denied.

II. DEFENDANTS’ MILS

Defendants’ MIL No. 1

Defendants move to bifurcate punitive damages. The motion is granted.

Defendants’ MIL No. 2

Defendants move to exclude reference to the number of defense attorneys, their rates, and the expense of the defense as more prejudicial than probative. Plaintiffs do not oppose. The motion is granted.

Defendants’ MIL No. 3

Defendants move to exclude evidence of past medical expenses other than those amounts actually paid by or on behalf of Plaintiffs. Per the July 8, 2022 CMO, this motion is presumptively denied, and Defendants did not show cause to depart from that presumption.

The motion is denied.

Defendants’ MIL No. 4

Defendants seek to exclude reference to the “Asbestos Industry.” Per the July 8, 2022 CMO, this motion is presumptively granted, and Plaintiffs did not oppose. The request to exclude use of the term “the Industry” is too vague. For example, an expert may testify about industry practice and use that phrase.

The motion is granted in part and denied in part.

Defendants’ MIL No. 5

Defendants seek to exclude lay opinion testimony regarding alleged asbestos content of products. Per the July 8, 2022 CMO, this motion is presumptively denied, and Defendants did not show cause to depart from that presumption.

The motion is denied.

Defendants’ MIL No. 6

Defendants seek to exclude references that one of the defendants is a German company as not relevant and more prejudicial than probative. It is not obvious that being a German company is prejudicial, and Defendants do not explain why it is prejudicial. Defendant can object at trial if this becomes an issue. The motion is denied.

The request to exclude reference to Defendants’ financial condition is granted.

Defendants’ MIL No. 7

Defendants seek to exclude reference to other lawsuits against Defendants. Per the July 8, 2022 CMO, a motion to exclude the amounts of any settlement, judgment or verdict in any other asbestos litigation is presumptively granted, and Plaintiffs did not show cause to depart from that presumption. The motion is granted to that extent.

Otherwise, the motion is too vague and brought. Evidence, such as deposition transcripts, from other cases may be used in this case. If a particular reference is more prejudicial than probative, Defendants should object at trial.

The motion is granted in part and denied in part.

Defendants’ MIL No. 8

Defendants seek to exclude all evidence not disclosed in discovery. Per the July 8, 2022 CMO, this motion is presumptively denied, and Defendants did not show cause to depart from that presumption.

The motion is denied.

Defendants’ MIL Nos. 9, 22

Defendants seek to exclude reference to asbestos-containing products not at issue in this case as more prejudicial than probative. These motions are too vague. Reference to other products could be relevant, such as in connection with notice. Or experts may analogize to other asbestos-containing products, as defense experts do in connection with the motion for summary judgment. Defendants should object at trial if they believe a specific reference is more prejudicial than probative.

The motions are denied.

Defendants’ MIL No. 10

Defendants seek orders about how trial will be conducted. This is not a proper motion in limine. These types of trial conduct matters should be discussed with the trial court. The motion is denied.

Defendants’ MIL No. 11

Defendants seek to exclude evidence about the industrial hygiene conditions and health effects at Defendants’ manufacturing facilities as more prejudicial than probative because the decedent did not work at Defendants’ facilities. This motion is too vague. Such evidence may be relevant, for example, to Defendants’ knowledge about the dangers of asbestos exposure or duty to warn.

The motion is denied.

Defendants’ MIL No. 12

Defendants seek to exclude the contention that all knowledge possessed by trade groups and industry organizations regarding asbestos-related health hazards should be imputed to Defendants. Per the July 8, 2022 CMO, this motion is presumptively denied, and Defendants did not show cause to depart from that presumption. The motion is denied.

Defendants’ MIL No. 13

Defendants seek to exclude expert opinion testimony about the term “substantial factor.” Per the July 8, 2022 CMO, this motion is presumptively denied, and Defendants did not show cause to depart from that presumption. The motion is denied.

Defendants’ MIL No. 14

Defendant Wyeth Holdings LLC seeks to exclude references that the decedent worked with or around products made by American Cyanamid other than FM-40 as more prejudicial than probative. Wyeth argues the other products are not at issue because the decedent testified to working with FM-40 only, not any other product manufactured by American Cyanamid. This motion is too vague. If Plaintiffs contend at trial that the decedent worked with or around other American Cyanamid products and then fail to prove that, Wyeth can point out in closing argument that Plaintiffs have no evidence for this contention.

The motion is denied.

Defendants’ MIL No. 15

This is not a motion in limine.

Defendants’ MIL No. 16

Defendants seek to exclude evidence of regulatory bans on asbestos-containing products as hearsay, irrelevant because they do not satisfy the burden of proof required in court, and prejudicial. Defendants state Plaintiffs will use the bans to show that products containing asbestos were defective. The motion is too vague. Regulations could be relevant for notice, for example. If Plaintiffs mention a particular regulation at trial, Defendants should object at that time.

The motion is denied.

Defendants’ MIL No. 17

Defendants seek to exclude reference to corporate representatives at trial. Per the July 8, 2022 CMO, this motion is presumptively granted, and Plaintiffs did not oppose. The motion is granted.

Defendants’ MIL No. 18

Defendants seek to exclude arguments that there is “no safe dose of asbestos” or that “a single fiber” is sufficient to increase the risk. This motion is too vague. If Defendants want to preclude use of those particular phrases, Plaintiffs state they do not intend to rely on “a single fiber.” However, the motion appears to extend beyond those specific phrases by also trying to limit the arguments about the test for proving causation and what “substantial factor” means. The July 8, 2022 CMO presumptively denies motions to exclude expert opinion about the term “substantial factor.”

The motion is denied.

Defendants’ MIL No. 19

Defendants seek to exclude any reference to the decedent and others as “victims” as more prejudicial than probative. Plaintiffs do not identify any need to use the terms “victim” or “victims.” Thus, while the prejudice may be slight, the relevance is negligible. The motion is granted.

Defendants’ MIL No. 20

Defendants seek to exclude the book “Doubt is their Product.” The July 8, 2022 CMO presumptively grants this motion unless and until proper foundation is established with the trial court. Therefore the motion is granted. Plaintiffs may attempt to lay a proper foundation with the trial court.

Defendants’ MIL No. 21

Defendants seek to exclude evidence of the Joint Policy Committee of the Societies of Epidemiology’s “Position Statement on Asbestos” as hearsay. Experts may rely on hearsay. But an expert cannot tell the jury about the contents of case-specific hearsay that is otherwise inadmissible. If the expert establishes the hearsay is general background information relied upon by experts in the field, the document and testimony about its contents may be admissible. (People v. Veamatahau (2020) 9 Cal.5th 16, 22.) Thus, to the extent Plaintiffs plan to reveal the contents of the document to the jury, they must first establish at trial that it is relied upon as accurate by experts in the field. Until then, the motion is granted as to the contents of the Position Statement on Asbestos.

Defendants’ MIL No. 23

Defendants seek to exclude references to the bankruptcy of non-present tortfeasors. The July 8, 2022 CMO presumptively grants this motion, and Plaintiffs do not show any reason to depart from that presumption. The motion is granted.

Defendants’ MIL No. 24

Defendant McNeil Corporation moves to exclude testimony that Cleveland Crane supplied replacement brakes for overhead cranes at North American Aviation/Rockwell while the Lewis worked there. Defendant contends Lewis did not know who supplied the brakes, never worked on the cranes, and had no information on the purchase of the brakes or the maintenance of the cranes.

If this motion is intended to apply to any witness, it motion is vague and overbroad. If a witness is asked about who supplied the brakes for the cranes at North American Aviation/Rockwell while Lewis worked there, and a party believes that particular witness has no foundation or would be speculating, that party can object at that time. If a witness testifies that Cleveland Crane supplied the brakes for the cranes at North American Aviation/Rockwell, the other parties can cross-examine the witness about the witness’s foundation for that answer.

If this motion is intended to apply only to the Lewis’s deposition testimony, the motion is denied. Lewis testified he was the crane operator at North American Aviation, assisted with preventative maintenance, worked on the brake systems, saw “Cleveland” written on the cranes, and remembers seeing boxes of brake shows that said “Cleveland” on them. (Lewis Depo. at pp. 137, 138, 140, 561, 562) Indeed he stated he had a specific recollection of seeing “Cleveland” written on the boxes. (Id. at pp. 561-562.) The testimony about seeing “Cleveland” on the box in the context of the rest of Lewis’s testimony is not hearsay, but rather is circumstantial evidence the boxes of shoe brakes came from Cleveland. (Hart v. Keenan Properties, Inc. (2020) 9 Cal.5th 442, 449.)

The motion is denied.

The moving party is to give notice.



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