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Abarca, Raul Valencia, Et Al v. Merck & Co.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA / FRESNO DIVISION


February 9, 2011

ABARCA, RAUL VALENCIA, ET AL.,
PLAINTIFFS,
v.
MERCK & CO., INC., ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

AMENDED ORDER ON PLAINTIFFS'AMENDED ORDER ON PLAINTIFFS'

The Court, having considered the motions in limine submitted on behalf of Plaintiffs and after consideration of all moving and /// opposing papers as well as arguments of counsel, hereby orders as follows:

1. Plaintiffs' Motions in Limine No. 1 Re Exclusion of Cumulative Expert Testimony Including but Not Limited to Testimony of Fed. R. Evid. 706 Experts is hereby DENIED without prejudice with the caveat that each party is to use its best efforts to avoid duplication or cumulation of the same subjects and the same analysis, foundation or other information that is either identical or substantially similar to what the first testifying expert provides. [Rough Transcript, January 27, 2011, p. 81:2-12.] Defendants will be permitted to call Dr. Kenneth Schmidt and Dr. Chatten Cowherd subject to the admonitions set forth above and plaintiffs will be permitted to call Dr. Richard Countess subject to the admonitions set forth above. [Rough Transcript, January 27, 2011, pp. 43:25 - 44:3.]

2. Plaintiffs' Motions in Limine No. 2 Re Exclusion of January 2009, Briefing Prepared by California Regional Water Quality Control Board to Senator Dianne Feinstein is hereby DENIED and the document is hereby deemed admissible. However, plaintiffs may propose limitations so the jury is advised when the report is presented, what they should not consider it for and how it should be limited, and defendants are granted the same opportunity. Plaintiffs are permitted to present evidence as to matters not provided to the Regional Board by defendants on issues addressed within the report. [Rough Transcript, January 27, 2011, p. 141:12-17.]

3. Plaintiffs' Motions in Limine No. 3 Re Exclusion of Testimony or Evidence Relating to the California EPA's Involvement or Investigation of the BAC Facility is hereby DENIED without prejudice. The Court finds that the regulatory history and regulatory activities are an integral part of the development of the site. [Rough Transcript, February 1, 2011, p. 52:20-23.]

4. Plaintiffs' Motions in Limine No. 4 Re Exclusion of Draft Animation of Bartlett Model and Testimony Related Thereto or in the Alternative, a Request for a Fed. R. Evid. 104(a) Hearing Outside the Presence of the Jury is hereby GRANTED. The animation may only be presented upon a foundational showing outside of the presence of the jury that Mr. Bartlett adopted, authorized or sponsored the animation. [Rough Transcript, February 1, 2011, pp. 80:7 - 81:5.]

5. Plaintiffs' Motions in Limine No. 5 Re Exclusion of MWC-2 Data Lacking Chain of Custody Documentation and MWC-2 Data Taken When the Well's Production Was Reduced And/or Taken out of Service or in the Alternative, a Request for a Fed. R. Evid. 104(a) Hearing Outside the Presence of the Jury is WITHDRAWN by the plaintiffs and therefore no ruling by this Court is necessary. [Rough Transcript, February 1, 2011, pp. 82:20-83:5.]

6. Plaintiffs' Motions in Limine No. 6 Re Exclusion of Evidence, Argument or Testimony Relating to Defendants' Motions for Summary Judgment; the Defendants' Daubert Motions and Fed. R. Evid. 706 Proceedings, Including Any Memorandum Decisions or Findings of Facts and Conclusions of Law is hereby GRANTED with respect to the Court's rulings, comments, and findings of fact. [Rough Transcript, February 1, 2011, pp. 84:21-25; 85:20-21.]

7. Plaintiffs' Motions in Limine No. 7 Re Exclusion of Evidence of MCL for Total Chromium as Proscribed by the State of California is hereby DENIED. It is further ordered that the subject of at what levels the contaminants of concern are hazardous through the existing pathways will be the last issue presented to the jury. The defendants, in light of the untimely and unexpected death of their expert, will be able to designate an expert, prepare a report and produce that expert for deposition as soon as possible before the plaintiffs ends their case and before the plaintiffs' experts testify in this case. [Rough Transcript, February 1, 2011, pp. 145:14-24.]

8. Plaintiffs' Motions in Limine No. 8 Re Exclusion of Evidence Related to Any Wildlife in the BAC Pond or El Capitan Canal During Relevant Time Periods of this Litigation is hereby conditionally DENIED subject to foundation. [Rough Transcript, February 1, 2011, p. 152:21-22.]

9. Plaintiffs' Motions in Limine No. 9 Re Exclusion of Evidence Related to Any Client Meetings or Flyers Regarding this Case is hereby GRANTED subject to plaintiffs' testifying regarding issues relevant to the flyers and/or meetings. [Rough Transcript, February 1, 2011, p. 164:18-19.]

10. Plaintiffs' Motions in Limine No. 10 Re Exclusion of Evidence Related to Any Illness or Health Status of Any Former Employee, Plaintiff, or Witness is hereby GRANTED. The parties may submit proposed admonitions on this subject for the Court's approval. [Rough Transcript, February 1, 2011, p. 166:6-9; 166:166:21-22.]

11. Plaintiffs' Motions in Limine No. 11 Re Exclusion of Evidence Related to Beachwood Residents Who Are Not a Party to this Litigation is hereby GRANTED, except as to those employees of Meadowbrook Water Company of Merced, Inc., who reside in the Beachwood neighborhood and will testify or be referred to in evidence. [Rough Transcript, February 1, 2011, pp. 172:18-24; 173:19-21.]

12. Plaintiffs' Motions in Limine No. 12 Re Exclusion of Evidence Related to Any Plaintiff That Has Been Dismissed is hereby GRANTED. [Rough Transcript, February 1, 2011, p. 174:15.]

13. Plaintiffs' Motions in Limine No. 13 Re Exclusion of Evidence Related to Air Quality in the Central Valley Including Merced County is hereby GRANTED. The parties are prohibited from referring to generalized air quality in the Central Valley; however, opinions or studies or observations pertiennt to the issues in this lawsuit will be permitted. [Rough Transcript, February 1, 2011, pp. 175:24 - 176:4.]

14. Plaintiffs' Motions in Limine No. 14 Re Exclusion of Evidence Related to Levels of Hexavalent Chromium, Chromium and Arsenic Within Other Communities is hereby DENIED. [Rough Transcript, February 1, 2011, p. 186:]

15. Plaintiffs' Motions in Limine No. 15 Re Exclusion of Any Reference to Any Delay in Payment of Any Expert in this Litigation is hereby GRANTED. [Rough Transcript, February 1, 2011, p. 186:11-13.]

16. Plaintiffs' Motions in Limine No. 16 Re Exclusion of Expert Reports as Exhibits is hereby GRANTED. All experts reports are excluded subject to any exceptions provided by the Federal Rules of Evidence. Parties must give advance notice to the Court relatingto such exceptions and of their intent to present any expert report or portion thereof to a witness prior to his or her testimony. [Rough Transcript, February 1, 2011, p. 186:14-16.] ///

17. Plaintiffs' Motions in Limine No. 17 Re Exclusion of Evidence Attempting to Compare the Amount of Chemicals Released at the BAC Facility to Any Other Wood Treatment Facilities is hereby DENIED. [Rough Transcript, February 1, 2011, p. 190:7-8.]

18. Plaintiffs' Motions in Limine No. 18 Re Exclusion of Lay Witnesses from the Courtroom is hereby GRANTED. However, lay witnesses may be permitted in the courtroom, once there is no reasonable prospect of their being recalled and not until their examination, both on direct and cross, has been completed. [Rough Transcript, February 1, 2011, p. 190:19-22.] Expert witnesses may be present in the courtroom during the testimony of opposing experts in their field of expertise and who are testifying as to those subject matters to which they will testify. [Rough Transcript, February 1, 2011, p. 195:1-11; 195:20-25.] Expert witnesses may also be present in the courtroom during testimony of other witnesses whose testimony is foundational to their opinions. [Rough Transcript, February 1, 2011, p. 195:7-10.]

19. All parties shall inform their witnesses of the conditions set forth above.

IT IS SO ORDERED NUNC PRO TUNC TO FEBRUARY 1, 2011.

20110209

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