GODINA, et al. vs MERCK & CO., INC., et al.

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 25CV161701: GODINA, et al. vs MERCK & CO., INC., SUED INDIVIDUALLY, AS ALTER-EGO OF, AND AS SUCCESSOR-IN-INTEREST TO SCHOLL, INC. AND SCHERING-P..., et al. 09/03/2026 Pre-Trial Conference Re: Berroteran Transcripts in Department 512 Tentative Ruling - 09/02/2026 Elizabeth Riles The Court, having reviewed the moving and opposing papers makes the following tentative rulings:

Plaintiffs’ Motion in Limine #6

Motion to Preclude Testimony of Dr. Matthew Sanchez and Alan Segrave

Plaintiff’s Motion to Preclude Testimony of Alan Segrave is DENIED (the motion as it relates to Dr. Sanchez is moot as the Defendant offering Dr. Sanchez is no longer in the case).

Plaintiffs seek to exclude any testimony of his report regarding whether asbestos was found in samples of the Defendants products at-issue here based on his methodology. Under Sargon Enterprises, Inc. v. Univ. of Southern California (2012), 55 Cal.4th 747, the trial court acts as “gatekeeper” and has discretion to “exclude expert opinion testimony that is (1) based on matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or (3) speculative.” (Id. at 771-72.)

The court does not resolve scientific controversies. Rather, it conducts a circumscribed inquiry to determine whether, as a matter of logic, the studies and other information cited by experts adequately support the conclusion that the expert’s general theory or technique is valid. The goal of trial court gatekeeping is simply to exclude clearly invalid and unreliable expert opinions. In short, the gatekeeper’s role is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field. (Id.)

Mr. Segrave is the Principal Scientist of Segrave Technical Consulting and is a registered professional geologist. Mr. Segrave methods for testing talc samples included polarized light microscopy (PLM) and transmission electron microscopy (TEM). Both methods are valid techniques for this kind of testing. The difference of opinion between Mr. Segrave and Dr. Longo, the Plaintiffs’ expert (as discussed below), is the criteria used by the two experts to measure or count the fibers found, particularly as it relates to cleavage fragments. The Court finds the distinction between the two methods described to be a scientific controversy that is not appropriate for the Court to resolve. On balance, the technique on which Mr. Segrave relies meets the Sargon test. The issues raised by the material submitted by Plaintiffs are appropriate for cross-examination. No 402 hearing is required.

Albertsons, LLC’s Motion in Limine #3 and CVS’ Motion in Limine #3

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 25CV161701: GODINA, et al. vs MERCK & CO., INC., SUED INDIVIDUALLY, AS ALTER-EGO OF, AND AS SUCCESSOR-IN-INTEREST TO SCHOLL, INC. AND SCHERING-P..., et al. 09/03/2026 Pre-Trial Conference Re: Berroteran Transcripts in Department 512 Motion to Exclude Certain Opinions of Dr. William Longo

Defendants’ Motions to Exclude Certain Opinions by Dr. Long are DENIED.

Defendants seek to exclude Dr. Longo’s testimony for several reasons. All are DENIED.

Dr. Longo’s Methodology Satisfies Kelly and Sargon

Defendants seek to exclude Dr. Longo’s testimony regarding his testing of samples of Defendants products based on his methodology. Under Sargon Enterprises, Inc. v. Univ. of Southern California (2012), 55 Cal.4th 747, the trial court acts as “gatekeeper” and has discretion to “exclude expert opinion testimony that is (1) based on matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or (3) speculative.” (Id. at 771-72.)

The court does not resolve scientific controversies. Rather, it conducts a circumscribed inquiry to determine whether, as a matter of logic, the studies and other information cited by experts adequately support the conclusion that the expert’s general theory or technique is valid. The goal of trial court gatekeeping is simply to exclude clearly invalid and unreliable expert opinions. In short, the gatekeeper’s role is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field. (Id.)

Under People v. Kelly (1976) 17 Cal.3d 24, which relied on Frye v. United States (D.C. Cir. 1923) 293 F. 1013 (collectively Kelly/Frye), the admissibility of expert testimony based on the application of a new scientific technique requires: (1) that the reliability of the method must be established; (2) the witness furnishing such testimony must be properly qualified as an expert to give an opinion on the subject; and (3) the proponent of the evidence must demonstrate that correct scientific procedures were used in the particular case. (People v.

Kelly, supra, 17 Cal.3d at 30.) To be reliable, a technique “must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” (Id. at 30.) “[O]nce a scientific procedure ... has become generally accepted, mere variations in technique or procedure go to the weight of the evidence, not its admissibility.” (People v. Cook (2007) 40 Cal.4th 1334, 1345.

Dr. Longo is a doctor of material sciences with degrees in microbiology and engineering. He is the Chief Executive Officer of MAS, LLC, and has spent more than 30 years studying the content, type, and release of asbestos fibers from asbestos-containing products, including those containing talc. Dr. Longo tested various samples of the products at-issue herein using the threestep TEM method, PLM, and SEM and EDXA. There is a difference of opinion both as to the criteria used by Dr. Longo to measure or count the fibers found, particularly as it relates to cleavage fragments. Further, Defendants raise a concern regarding Dr. Longo’s use of heavy liquid separation (HLS) in combination with Colorado School of Mines (CSM) preparation to prepare the sample for PLM, as well as the use of the Calidria standard in evaluating the

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 25CV161701: GODINA, et al. vs MERCK & CO., INC., SUED INDIVIDUALLY, AS ALTER-EGO OF, AND AS SUCCESSOR-IN-INTEREST TO SCHOLL, INC. AND SCHERING-P..., et al. 09/03/2026 Pre-Trial Conference Re: Berroteran Transcripts in Department 512 chrysotile in talcum samples, which are modifications to the ISO 22261-1 method. The Court does not find that these modifications are beyond those reasonably relied upon or that they are novel or new techniques that are not generally accepted. These issues are more of a scientific controversy that is not appropriate for the Court to resolve. On balance, the techniques on which Dr. Longo relies meet the Sargon and Kelley/Frye tests. The issues raised by the material submitted by Defendants are appropriate for cross-examination. No 402 hearing is required.

The Issues of Chain of Custody Apply to Weight and Not Admissibility

Defendants seek to exclude Dr. Longo’s testing of samples of CVS brand and Albertsons’ brand talcum powder from third parties based on the “chain of custody” for the samples. The chain of custody issue is essentially an authenticity issue. In a chain of custody claim, “the burden on the party offering the evidence is to show to the satisfaction of the trial court that, taking all the circumstances into account including the ease or difficulty with which the particular evidence could have been altered, it is reasonably certain that there was no alteration.” (Bader v.

Johnson & Johnson (2022) 86 Cal.App.5th 1094, 1114.) Here the Court is satisfied that sufficient evidence has been presented to authenticate the samples of CVS brand and Albertsons’ brand talcum powder. There is only speculation that there may have been tampering without any evidence to support that allegation. The doubts here go to the weight as opposed to the admissibility. (Id.)

Defendants’ other objections to Dr. Longo’s testimony are not well-founded. Defendants’ experts are well qualified to attack plaintiffs’ opinions and Defendants’ counsel is competent to cross-examine these witnesses. It is up to the jury to decide which expert opinion to accept and/or to what extent it will consider the differing expert opinions.

CVS Pharmacy, Inc.’s Motion in Limine #1

Motion to Exclude Reference to A 2001 and A 2009 Email

Defendants’ Motion to exclude reference to a 2001 and 2009 email is DENIED WITHOUT PREJUDICE.

Defendants seek to exclude an email sent in 2009 by CVS Baby Category Manager, Dan Roehl and an email in 2001 which records a customer call about talc in Calcium tablets. Defendants argue that the emails are inadmissible hearsay, irrelevant, and prejudicial. On the other hand, Plaintiffs argue that the emails are business records under California Evidence Code §1271 and that the 2009 email is also a party admission under Evidence Code §§1220, 1221, and 1222. Finally, the Plaintiff argues that the two documents are relevant to and admissible to demonstrate notice to defendants and for potential punitive damages.

Based on the information provided, Defendants have not demonstrated that there is no possible

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 25CV161701: GODINA, et al. vs MERCK & CO., INC., SUED INDIVIDUALLY, AS ALTER-EGO OF, AND AS SUCCESSOR-IN-INTEREST TO SCHOLL, INC. AND SCHERING-P..., et al. 09/03/2026 Pre-Trial Conference Re: Berroteran Transcripts in Department 512 way for Plaintiffs to lay the appropriate foundation for the hearsay exceptions here. The Court finds that the emails are otherwise relevant and that the probative value is not substantially outweighed by the prejudicial effect. As such, Defendants may object to the admission of these emails at trial should Plaintiffs be unable to lay sufficient foundation for them, but the Court does not exclude them here.

CVS Pharmacy, Inc.’s Motion in Limine #2

Motion to Exclude Reference to A 2010 Murder Trial

Defendants’ Motion to exclude reference to a 2010 Murder Trial is GRANTED.

Defendants seek to exclude testimony of Lansing Lewis from the murder trial of Yazeed Essa. Defendants argue that the trial testimony is hearsay and prejudicial. Plaintiffs argue that the testimony qualifies as “former testimony” and should be admissible as such. The Court disagrees.

Evidence Code section 1292 applies where former testimony is offered against a party in a current proceeding who was not a party to the former proceeding. Such former “testimony is not made inadmissible by the hearsay rule if: (1) The declarant is unavailable as a witness; (2) The former testimony is offered in a civil action; and (3) The issue is such that the party to the action or proceeding in which the former testimony was given had the right and opportunity to crossexamine the declarant with an interest and motive similar to that which the party against whom the evidence offered has at the hearing.” (Evid. Code § 1292(a), emphasis added.) Section 1292 “provides for the admissibility of former testimony offered against a person not a party to the former proceeding.” (Wahlgren v. Coleco Indus., Inc. (1984) 151 Cal.App.3d 543, 547 (“Wahlgren”), emphasis in original.)

Here, the parties agree that Mr. Lewis is not available because he is out of state and the former testimony is being offered in a civil action; however, Plaintiffs cannot satisfy the third requirement. The criminal defendant, Mr. Essa, did not have the same interest and motive for cross-examining Mr. Lewis as that of CVS (the party against whom this evidence is offered). Further, the Court finds that the probative value of mentioning the murder trial and the substance of the allegations therein is substantially outweighed by the prejudicial effect.

CVS Pharmacy, Inc.’s Motion in Limine #4

Motion to Exclude Reference to Newspaper Writings and Advertisements and Media Reports

Defendants’ Motion to exclude reference to newspaper writings and advertisements, media reports, medical journals, industry publications, and other publications is DENIED WITHOUT PREJUDICE.

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 25CV161701: GODINA, et al. vs MERCK & CO., INC., SUED INDIVIDUALLY, AS ALTER-EGO OF, AND AS SUCCESSOR-IN-INTEREST TO SCHOLL, INC. AND SCHERING-P..., et al. 09/03/2026 Pre-Trial Conference Re: Berroteran Transcripts in Department 512

Defendants’ motion to exclude newspaper writings, etc., seeks exclusion of several broad categories of evidence with only examples of the specific evidence they seek to exclude. This motion would require the court to decide the issue in a vacuum or to give an advisory opinion. (Boston v. Penny Lane Centers, Inc. (2009) 170 Cal.App.4th 936, 950; Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 670-671; Salazar v. Eastin (1995) 9 Cal.4th 836, 860.) Neither of which the Court will do.

Further it appears that some of the documents in the various categories could be relevant and admissible as party admissions, notice, or constructive knowledge (See Carlin v. Superior Court (1996) 13 Cal.4th 1104, 1113, fn. 3.) The Court is unable to make these determinations until Plaintiffs attempt to introduce a particular item of evidence at trial, and it is objected to. General Hearsay Objections to Transcript Designations

The parties have made global objections to several transcripts presented to be used as evidence in this matter. These objections are all essentially that the transcripts constitute inadmissible hearsay under Evidence Code section 1200 and do not satisfy the standard for admissibility under Evidence Code Section 1291 or 1292 and Berroteran v. Superior Court (2022) 12 Cal. 5th 867 (“Berroteran”) and Gatton v. A.P. Green Services, Inc. (1998) 64 Cal.App.4th 688 (“Gatton”).

“Hearsay may be briefly understood as an out-of-court statement offered for the truth of its content.” (People v. Sanchez (2016) 63 Cal.4th 665, 674 [citing Evid. Code §1200].) “Hearsay is generally inadmissible unless it falls under an exception.” (Id. [citing Evid. Code § 1200, subd. (b).)

“Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth.” (Evid. Code § 1221.)

“Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if:

(a) The statement was made by a person authorized by the party to make a statement or statements for him concerning the subject matter of the statement; and

(b) The evidence is offered either after admission of evidence sufficient to sustain a finding of such authority or, in the court’s discretion as to the order of proof, subject to the admission of such evidence.” (Evid. Code § 1222, subd. (a) and (b).)

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 25CV161701: GODINA, et al. vs MERCK & CO., INC., SUED INDIVIDUALLY, AS ALTER-EGO OF, AND AS SUCCESSOR-IN-INTEREST TO SCHOLL, INC. AND SCHERING-P..., et al. 09/03/2026 Pre-Trial Conference Re: Berroteran Transcripts in Department 512 Evidence Code section 1291 provides that “former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness” and “[t]he party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.” (Evid. Code, § 1291, subd. (a)(2).)

There is “a general rule in favor of introducing prior trial testimony that is otherwise within [Evidence Code section 1291]….” (Berroteran, supra, 12 Cal. 5th at 891, emphasis in original.) However, prior deposition testimony is treated differently under section 1291 than former trial testimony. (Ibid.) This distinction derives from the “different functions of trial and deposition testimony.” (Id. at 891-892.) A deposition is a discovery tool that is normally intended as a precursor to trial testimony — not as a substitute for such testimony. (Ibid.) Because of these different purposes, the “interest and motive” of the party opponent in cross-examination at a discovery deposition is generally not, as required by section 1291(a)(2), similar to that prevailing at trial. (Ibid.)

The Berroteran court outlined the following factors to consider in determining whether former deposition testimony is admissible under section 1291: (1) whether the parties intended at the outset that the deposition serve as trial testimony; (2) whether the parties subsequently reached agreement to use the deposition at the trial in that earlier case or in other cases; and (3) other practical considerations. (Berroteran, 12 Cal.5th at 900-904.)

The Court recited a non-exclusive list of practical considerations as follows: (a) timing of the deposition within the context of the litigation, and special circumstances creating an incentive for cross-examination; (b) the relationship of the deponent and the opposing party; (c) the anticipated availability of the deponent at trial in the proceeding in which the deposition was taken, and the statutory context; (d) conduct at, and surrounding, the deposition — and the degree of any examination conducted by the opposing party; (e) the particular designated testimony; and (f) similarity of position. (Ibid.)

Evidence Code section 1292 applies where former testimony is offered against a party in a current proceeding who was not a party to the former proceeding. Such former “testimony is not made inadmissible by the hearsay rule if: (1) The declarant is unavailable as a witness; (2) The former testimony is offered in a civil action; and (3) The issue is such that the party to the action or proceeding in which the former testimony was given had the right and opportunity to crossexamine the declarant with an interest and motive similar to that which the party against whom the evidence offered has at the hearing.” (Evid. Code § 1292(a).) Section 1292 “provides for the admissibility of former testimony offered against a person not a party to the former proceeding.” (Wahlgren v. Coleco Indus., Inc. (1984) 151 Cal.App.3d 543, 547 (“Wahlgren”), emphasis in original.)

The California Supreme Court interpreting Evidence Code Section 1291(a)(2) stated “that the

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 25CV161701: GODINA, et al. vs MERCK & CO., INC., SUED INDIVIDUALLY, AS ALTER-EGO OF, AND AS SUCCESSOR-IN-INTEREST TO SCHOLL, INC. AND SCHERING-P..., et al. 09/03/2026 Pre-Trial Conference Re: Berroteran Transcripts in Department 512 statute articulates a general rule (not a categorical bar) against admission at trial of prior testimony from a typical discovery deposition.” (Berroteran, supra, 12 Cal.5th at 890.) Thus, a general showing that the party to the former litigation had a similar motive to defend the litigation as the Defendant in this litigation is insufficient.

The proponent must demonstrate that the former party had a similar motive to cross-examine the witness at the deposition as the Defendant would have at this trial. Such motive is generally not present at a typical discovery deposition, particularly where the former defendant is aligned with the deponent. (Id. at 902 [“A party rarely has an interest and motive to cross-examine deponents with whom the party has a close or aligned relationship.”].) Thus, the Berroteran analysis is germane to determining whether deposition testimony is admissible under Evidence Code Section 1292, at least to the extent it addresses the interest and motive to cross-examine the deponent. (Also see, Gatton, supra, 64 Cal.App.4th at 692-693.)

The parties dispute whether the Berroteran analysis applies in the context where the former testimony is that of a corporate representative designated to speak on behalf of a party, such as a “Person Most Qualified” (“PMQ”) witness. Plaintiffs contend that where the testimony is that of a PMQ witness, the testimony is admissible as an admission under Evidence Code Sections 1220-1220. Defendants maintain that the Berroteran factors lay out a threshold requirement in situations where the evidence is offered and Evidence Code Section 1291 is implicated.

The Court is not persuaded that Berroteran applies where the former testimony is potentially admissible under Evidence Code Sections 1221 and 1222. Notably, the Berroteran court stated in regard to the application of other evidence code sections, specifically Evidence Code §1222, “we express no view concerning the applicability of these other statutory provisions.” (Berroteran, supra, 12 Cal.5th at 889, fn. 19.) Although footnote 19 is arguably dictum, this Court notes that dictum of the Supreme Court, while not controlling, carries persuasive weight. (Candelore v.

Tinder, Inc. (2018) 19 Cal.App.5th 1138, 1149.)

Finally, the parties dispute whether the Berroteran analysis applies in the context of depositions taken in the instant case, whether for witnesses of settled Defendants or those still present in the action. The Court is persuaded that Berroteran and its factors do not apply to depositions in the instant action. California Code of Civil Procedure §2025.620 is clear that “any part or all of a deposition may be used against any party who was present or represented at the taking of the deposition…” and §2025.620(b) provides that an adverse party may use for any purpose, a deposition of a party to the action, including anyone who at the time of the deposition was an officer, director, managing agent, employee, or designee of a party.

For any such depositions, the only valid objection to the use of the deposition as a whole would be that the depositions were not properly noticed, or that a valid objection was served as to the taking of the deposition. Otherwise, the Court will only review specific designations for admissibility under other Evidence Code issues.

With these principles in mind, the Court turns to the depositions at issue.

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 25CV161701: GODINA, et al. vs MERCK & CO., INC., SUED INDIVIDUALLY, AS ALTER-EGO OF, AND AS SUCCESSOR-IN-INTEREST TO SCHOLL, INC. AND SCHERING-P..., et al. 09/03/2026 Pre-Trial Conference Re: Berroteran Transcripts in Department 512 Designations of Former Testimony

Depositions taken in Godina

Elizabeth Ash

Elizabeth Ash’s deposition was taken on July 21, 2026 in Godina, et al. v. Merck, et al., Case No. 25CV161701, the instant action. The deposition was appropriately noticed and counsel for CVS and Albertsons was present at the deposition. Defendants’ global objection is OVERRULED under CCP §2025.620. The Court will consider objections to specific page and line designations.

Daniel Bicomong

Daniel Bicomong’s deposition was taken on August 5, 2026 in Godina, et al. v. Merck, et al., Case No. 25CV161701, the instant action. The deposition was appropriately noticed and counsel for CVS and Albertsons was present at the deposition. Defendants’ global objection is OVERRULED under CCP §2025.620. The Court will consider objections to specific page and line designations.

Coryn Kremers

Coryn Kermers’ deposition was taken on July 23, 2026 in Godina, et al. v. Merck, et al., Case No. 25CV161701, the instant action. Defendants have not raised an objection to the notice of the deposition or their lack of presence at the deposition. Defendants’ global objection is OVERRULED under CCP §2025.620. The Court will consider objections to specific page and line designations.

Sara Delkoski Bakken

Sara Delkoski Bakken’s deposition was taken on June 9, 2026 in Godina, et al. v. Merck, et al., Case No. 25CV161701, the instant action. Defendants have not raised an objection to the notice of the deposition or their lack of presence at the deposition. Defendants’ global objection is OVERRULED under CCP §2025.620. The Court will consider objections to specific page and line designations.

Depositions taken in other Matters

Elizabeth Ash

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 25CV161701: GODINA, et al. vs MERCK & CO., INC., SUED INDIVIDUALLY, AS ALTER-EGO OF, AND AS SUCCESSOR-IN-INTEREST TO SCHOLL, INC. AND SCHERING-P..., et al. 09/03/2026 Pre-Trial Conference Re: Berroteran Transcripts in Department 512 Elizabeth Ash’s deposition was taken on July 31, 2025 in Maricich, et al. v. Chattem, Inc., et al., Case No. 25CV116787. Ms. Ash was designated as the corporate representative or the Person most Qualified for CVS Pharmacy, a defendant in this matter. Defendants’ global hearsay objection is OVERRULED under Evidence Code §§ 1220-1222. As the PMQ for CVS, the Court finds that her testimony is admissible as an admission. The Court will consider objections to specific page and line designations.

Althea Murray

a. Althea Murray’s deposition was taken on July 29, 2026 in Jackson v. The Kroger Co., et al., Case No. CV-24-108740. Ms. Murray was designated as the Person Most Qualified for Vi- Jon.

Defendants’ global hearsay objection is OVERRULED under Evidence Code §1292. Ms. Murray is unavailable for trial as she resides in Tennessee, and the Plaintiffs have met their burden to show that the Defendants in the Jackson case had the same interest and motive to cross-examine Ms. Murray as they would at trial.

Neither CVS nor Albertsons were parties to the Jackson action and were not present at the deposition.

There was no direct statement that the deposition was intended to be a proxy for trial testimony. However, the behavior and questioning of the parties at the deposition lead to the conclusion that it was the intention of the parties to preserve Ms. Murray’s testimony for trial. Specifically, Ms. Murray was thoroughly examined by not only the Plaintiff but was also questioned by defendant Walmart (in a separate deposition and in this transcript) and by Defendant Vi-Jon, who she was designated to represent. It is unusual for a party to question their own witness in deposition testimony, as opposed to testimony for trial. Further, the parties, on several occasions, referred to the jury. The Court will consider objections to specific page and line designations.

b. Althea Murray’s deposition was taken on July 1, 2026 in Menor, et al. v. Chanel, Inc, et al., Case No. 26CV162809. Ms. Murray was designated as the Person Most Qualified for Vi- Jon.

Defendants’ global hearsay objection is OVERRULED under Evidence Code §1291. Ms. Murray is unavailable for trial as she resides in Tennessee, and the Plaintiffs have met their burden to show that the Defendants in Menor had the same interest and motive to cross-examine Ms. Murray as they would at trial.

Defendants CVS and Albertsons were parties to the Menor action, though Albertsons had been dismissed by the time of the Murray deposition. Defendant CVS was present at the deposition.

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 25CV161701: GODINA, et al. vs MERCK & CO., INC., SUED INDIVIDUALLY, AS ALTER-EGO OF, AND AS SUCCESSOR-IN-INTEREST TO SCHOLL, INC. AND SCHERING-P..., et al. 09/03/2026 Pre-Trial Conference Re: Berroteran Transcripts in Department 512 The notice of deposition for Ms. Murray in Menor made it clear that her testimony was intended to be preserved for use at trial. Ms. Murray could not be compelled for trial in the Menor action. The Menor action was preference matter with trial scheduled for two months after the deposition in question was taken. The questioning made repeat references to the jury. The Court will consider objections to specific page and line designations.

David Mobley David Mobley’s deposition was taken on March 18, 2021 in Prudencio v. Johnson & Johnson, et al., Case No. RG20061303.

Defendants’ global hearsay objection is SUSTAINED under Evidence Code §§1291 and 1292. Mr. Mobley is unavailable as he resides in Tennessee, but Plaintiffs have not met their burden to show that Defendants had the same interest and motive to cross-examine Mr. Mobley as they would at trial.

Defendants Albertsons was a party to the Prudencio action, and CVS was not (though the Court notes that counsel for Albertsons in Prudencio is listed in the transcript as also representing CVS). Defendant Albertsons was present at the deposition.

Though Albertsons was a party to the Prudencio action and was present at the deposition, Albertsons did not cross-examine Mr. Mobley or ask him any questions at all. Though Vi-Jon did ask a few questions of Mr. Mobley, Vi-Jon’s own employee, there was really nothing to indicate or evidence that the deposition was anything other than a deposition for discovery.

Plaintiffs pointed to the deposition notice wherein it was stated that the Plaintiffs reserve the right to use the deposition a trial and that the videotape is intended for possible use at trial; however, the Court does not find this sufficient to demonstrate that the parties had an intent to take the deposition for preserving the witness’ testimony as a proxy for trial testimony.

Beth LaCross

Beth LaCross’ deposition was taken on September 8, 2025 in Maricich, et al. v. Chattem, Inc., et al., Case No. 25CV116787.

Defendants’ global hearsay objection is OVERRULED under Evidence Code § 1291. Ms. LaCross is unavailable because she resides in Rhode Island, and the Plaintiffs have met their burden to show that Defendants had the same interest and motive to cross-examine Ms. LaCross as they would at trial.

Both Albertson and CVS were parties to the Marichich action and were present at the deposition.

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 25CV161701: GODINA, et al. vs MERCK & CO., INC., SUED INDIVIDUALLY, AS ALTER-EGO OF, AND AS SUCCESSOR-IN-INTEREST TO SCHOLL, INC. AND SCHERING-P..., et al. 09/03/2026 Pre-Trial Conference Re: Berroteran Transcripts in Department 512 Plaintiffs pointed to the deposition notice wherein it was stated that the Plaintiffs reserve the right to use the deposition a trial and that the videotape is intended for possible use at trial; however, the Court does not find this sufficient to demonstrate that the parties had an intent to take the deposition for preserving the witness’s testimony as a proxy for trial testimony.

There was no direct statement that the deposition was intended to be a proxy for trial testimony, though the Plaintiffs did ask Ms. LaCross whether she knew that the testimony might be played to the jury. However, the behavior and questioning of the parties at the deposition lead to the conclusion that it was the intention of the parties to preserve Ms. LaCross’ testimony for trial. Specifically, the Plaintiffs questioning of Ms. LaCross was pointed, like cross-examination, and less of the open-ended type that would be for a typical discovery deposition. Further, Ms. LaCross was also questioned by counsel for CVS on at least two occasions, for which Ms. LaCross is an employee. Further, CVS’ questioning of Ms. LaCross was directly related to the testimony designated for trial here. The Court will consider objections to specific page and line designations.

Holly Gram

Holly Gram’s deposition was taken on July 22, 2025 in Maricich, et al. v. Chattem, Inc., et al., Case No. 25CV116787.

Defendants’ global hearsay objection is SUSTAINED under Evidence Code § 1291. Ms. Gram is unavailable because she resides in Massachusetts, and the Plaintiffs have not met their burden to show that Defendants had the same interest and motive to cross-examine Ms. Gram as they would at trial.

Both Albertson and CVS were parties to the Marichich action and were present at the deposition.

Plaintiffs pointed to the deposition notice wherein it was stated that the Plaintiffs reserve the right to use the deposition a trial and that the videotape is intended for possible use at trial; however, the Court does not find this sufficient to demonstrate that the parties had an intent to take the deposition for preserving the witness’s testimony as a proxy for trial testimony.

There was no direct statement that the deposition was intended to be a proxy for trial testimony, though the Plaintiffs did ask Ms. Gram, an employee of Vi-Jon, whether she knew that the testimony might be played to the jury. Though the questioning by the Plaintiffs at the deposition was pointed, like cross-examination, unlike Ms. LaCross (who was an employee of one of the Defendants here), there were no questions asked by any other Defendant in that action. There was no other evidence or indication that the deposition was intended for preserving the witness’ testimony as a proxy for trial testimony.

Lansing Lewis

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 25CV161701: GODINA, et al. vs MERCK & CO., INC., SUED INDIVIDUALLY, AS ALTER-EGO OF, AND AS SUCCESSOR-IN-INTEREST TO SCHOLL, INC. AND SCHERING-P..., et al. 09/03/2026 Pre-Trial Conference Re: Berroteran Transcripts in Department 512

a. The Court ruled on the admissibility of Mr. Lewis’ testimony in the 2010 Murder trial as part of the Motions in Limine.

b. Lansing Lewis’ deposition was taken on August 8, 2025 in Maricich, et al. v. Chattem, Inc., et al., Case No. 25CV116787.

Defendants’ global hearsay objection is OVERRULED under Evidence Code § 1291. Mr. Lewis is unavailable because he resides in Massachusetts, and the Plaintiffs have not met their burden to show that Defendants had the same interest and motive to cross-examine Mr. Lewis as they would at trial.

Both Albertson and CVS were parties to the Marichich action and CVS was present at the deposition.

Plaintiffs pointed to the deposition notice wherein it was stated that the Plaintiffs reserve the right to use the deposition a trial and that the videotape is intended for possible use at trial; however, the Court does not find this sufficient to demonstrate that the parties had an intent to take the deposition for preserving the witness’s testimony as a proxy for trial testimony.

There was no direct statement that the deposition was intended to be a proxy for trial testimony, though the Plaintiffs did ask Mr. Lewis whether he knew that the testimony would be played to the jury. However, the behavior and questioning of the parties at the deposition lead to the conclusion that it was the intention of the parties to preserve Mr. Lewis’ testimony for trial. Specifically, the Plaintiffs questioning of Mr. Lewis was pointed, like cross-examination, and less of the open-ended type that would be for a typical discovery deposition. Further, Mr. Lewis was also questioned by counsel for CVS, for which Mr. Lewis was an employee. Further, CVS’ questioning of Mr. Lewis was directly related to the testimony designated for trial here. The Court will consider objections to specific page and line designations.