On August 14, 2020 a
Motion-Secondary
was filed
involving a dispute between
Stephens, Donnetta,
and
Crown Ace Hardware,
Does 1 Through 100 Inclusive,
Monsato Company,
Wilbur-Ellis Company, Llc,
Wilbur-Ellis Nutrition, Llc,
for Product Liability Unlimited
in the District Court of San Bernardino County.
Preview
.
y
GREGM x
Bart H. Williams (State Bar No. 134009)
bwflliams@.proskauer.com
um:
”
H L ED
Manuel F. Cachén (State Bar No. 216987) SUPERIORVCOURT 0F CALIFORNIA
0F SAN BERleR DINO
mcachan proskauer.com CQESQERNARDNO DIDTRmT
Shawn S. edingham, Jr. (State Bar No. 275268)
sledingham proskauer.com JUL 1 2 2021
PROSKA R ROSE LLP
2029 Century Park East
Suite 2400
BY
Los Angeles, CA 90067 ’G (R.;:“REA~3WAY. DEPUTY
Telephone: (3 1 0) 557-2900
Facsunile: (3 10) 557—2193
Lee M. Popkin (admitted pro hac vice)
1 opkin proskauer.com
. Jenni er Yang (admitted pro hac vice)
jyang ,proskauer.com
PROS AUER ROSE LLP
11 Times Square
New York, NY 10036
1o Telephone: (212) 969-3000
Facsunile: (212) 969-2900
11
Attorneys for Defendants
12 MONSANTO COMPANY AND CROWN ACE
HARDWARE
13
SUPERIOR COURT OF THE STATE OF CALIFORNIA
14 COUNTY OF SAN BERNARDINO
15 DONNETTA STEPHENS, Case N0. CIVSB2104801
16 Plaintiff DEFENDANTS’ OPPOSITION TO
PLAINTIFF’S MOTION INLIMINE N0. 4
17
vs.
TO EXCLUDE ANY TESTIMONY,
EVIDENCE, OR ARGUNIENT THAT THE
MONSANTO COMPANY, WILBUR-ELLIS EPA WOULD HAVE REJECTED A
18
AND CROWN ACE
NUTRITION, LLC LABELING CHANGE TO ROUNDUP TO
HARDWARE, WARN OF THE RISK OF NON-
19
HODGKIN’S LYMPHOMA
Defendants.
20 Judge: Hon. Gilbert G. Ochoa
Dept: SZ4—SBJC
21
Complaint Filed: August 4, 2020
Trial Date: July 19, 2021
22 Hearing Date: July 15, 2021
Time: 9:00 a.m.
23
[Filed concurrently with Omnibus Declaration
24 of Shawn S. Ledingham, Jr.]
25
26
27
28
DEFENDANTS’ OPPOSITION T0 PLAINTIFF’S MOTION INLIMINE NO. 4
*
I. INTRODUCTION
Plaintiff asks this Court to preclude Defendants from offering any testimony, argument, 0r
opinion about whether the US. Environmental Protection Agency (“EPA”) would have rejected
additional warnings about the risk 0f non-Hodgkin’s lymphoma (“NHL”) on the labels of
Monsanto’s glyphosate—based herbicides. Plaintiff’s motion is an improper attempt to preclude
Defendants from showing they exercised due care and that the relevant label statements
did not
cause Plaintiff” s NHL. Plaintiff” s reliance on Judge Smith’s ruling 0n a similar motion in the Pilliod
case is paxficularly misleading in light of the EPA’S August 2019 pronouncement (and even more
recent findings)—issued qfier Judge Smith’s ruling—that it “will no longer approve labeling that
10 includes the Proposition 65 [cancer] warning statement for glyphosate-containing
products” and its
11 instruction that the “warning statement must also be removed from all product labels where the
12 only basis for the warning is glyphosate.” See P1.’s MIL No. 4, Ex. 4 at 2. As a result of the
13 significantly changed landscape on this issue, Judge Smith’s prior ruling is neither instructive nor
14 persuasive. Plaintiff’s motion should be denied because evidence that EPA would have rej ected a
15 cancer warning on Roundup labels is not speculative or unduly prejudicial and is highly probative
16 of Defendants’ exercise 0f due care and to their defense against punitive damages.
17 II. ARGUMENT
18 Plaintiff incorrectly claims that “[w]hether the EPA would approve or reject a label change
19 to Roundup to warn about the risk of cancer is simply a mental exercise filled with nothing more
20 than hypotheses, speculation, and guess work.” P1. ’s MIL No. 4 at 5. But whether EPA would have
21 rejected a cancer warning is far from hypothetical or speculative. Indeed, in August 2019, EPA
22 issued a letter to Monsanto and all other glyphosate registrants unequivocally stating that
any cancer
23 warning on a glyphosate-based herbicide would be “false and misleading”
and thus render the
24 labeling “misbranded” in Violation of FIFRA. See P1.’s MIL No. 4, Ex. 4 at 1; see also 7 U.S.C.
25 § 136j(a)(1)(E) (making it unlawful to sell misbranded pesticides); id. § 136(q)(1)(A) (pesticide is
26 “misbranded” if “its labeling bears any statement which is
. . . false or misleading in any particular”).
27 In its August 2019 letter, EPA explained to registrants that although “California listed glyphosate
28 as a substance under Proposition 65 [that required. a cancer
warning], based on the International
1
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION IN LIIVHNE NO. 4
Document Filed Date
July 12, 2021
Case Filing Date
August 14, 2020
Category
Product Liability Unlimited
For full print and download access, please subscribe at https://www.trellis.law/.
Preview
. y GREGM x Bart H. Williams (State Bar No. 134009) bwflliams@.proskauer.com um: ” H L ED Manuel F. Cachén (State Bar No. 216987) SUPERIORVCOURT 0F CALIFORNIA 0F SAN BERleR DINO mcachan proskauer.com CQESQERNARDNO DIDTRmT Shawn S. edingham, Jr. (State Bar No. 275268) sledingham proskauer.com JUL 1 2 2021 PROSKA R ROSE LLP 2029 Century Park East Suite 2400 BY Los Angeles, CA 90067 ’G (R.;:“REA~3WAY. DEPUTY Telephone: (3 1 0) 557-2900 Facsunile: (3 10) 557—2193 Lee M. Popkin (admitted pro hac vice) 1 opkin proskauer.com . Jenni er Yang (admitted pro hac vice) jyang ,proskauer.com PROS AUER ROSE LLP 11 Times Square New York, NY 10036 1o Telephone: (212) 969-3000 Facsunile: (212) 969-2900 11 Attorneys for Defendants 12 MONSANTO COMPANY AND CROWN ACE HARDWARE 13 SUPERIOR COURT OF THE STATE OF CALIFORNIA 14 COUNTY OF SAN BERNARDINO 15 DONNETTA STEPHENS, Case N0. CIVSB2104801 16 Plaintiff DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION INLIMINE N0. 4 17 vs. TO EXCLUDE ANY TESTIMONY, EVIDENCE, OR ARGUNIENT THAT THE MONSANTO COMPANY, WILBUR-ELLIS EPA WOULD HAVE REJECTED A 18 AND CROWN ACE NUTRITION, LLC LABELING CHANGE TO ROUNDUP TO HARDWARE, WARN OF THE RISK OF NON- 19 HODGKIN’S LYMPHOMA Defendants. 20 Judge: Hon. Gilbert G. Ochoa Dept: SZ4—SBJC 21 Complaint Filed: August 4, 2020 Trial Date: July 19, 2021 22 Hearing Date: July 15, 2021 Time: 9:00 a.m. 23 [Filed concurrently with Omnibus Declaration 24 of Shawn S. Ledingham, Jr.] 25 26 27 28 DEFENDANTS’ OPPOSITION T0 PLAINTIFF’S MOTION INLIMINE NO. 4 * I. INTRODUCTION Plaintiff asks this Court to preclude Defendants from offering any testimony, argument, 0r opinion about whether the US. Environmental Protection Agency (“EPA”) would have rejected additional warnings about the risk 0f non-Hodgkin’s lymphoma (“NHL”) on the labels of Monsanto’s glyphosate—based herbicides. Plaintiff’s motion is an improper attempt to preclude Defendants from showing they exercised due care and that the relevant label statements did not cause Plaintiff” s NHL. Plaintiff” s reliance on Judge Smith’s ruling 0n a similar motion in the Pilliod case is paxficularly misleading in light of the EPA’S August 2019 pronouncement (and even more recent findings)—issued qfier Judge Smith’s ruling—that it “will no longer approve labeling that 10 includes the Proposition 65 [cancer] warning statement for glyphosate-containing products” and its 11 instruction that the “warning statement must also be removed from all product labels where the 12 only basis for the warning is glyphosate.” See P1.’s MIL No. 4, Ex. 4 at 2. As a result of the 13 significantly changed landscape on this issue, Judge Smith’s prior ruling is neither instructive nor 14 persuasive. Plaintiff’s motion should be denied because evidence that EPA would have rej ected a 15 cancer warning on Roundup labels is not speculative or unduly prejudicial and is highly probative 16 of Defendants’ exercise 0f due care and to their defense against punitive damages. 17 II. ARGUMENT 18 Plaintiff incorrectly claims that “[w]hether the EPA would approve or reject a label change 19 to Roundup to warn about the risk of cancer is simply a mental exercise filled with nothing more 20 than hypotheses, speculation, and guess work.” P1. ’s MIL No. 4 at 5. But whether EPA would have 21 rejected a cancer warning is far from hypothetical or speculative. Indeed, in August 2019, EPA 22 issued a letter to Monsanto and all other glyphosate registrants unequivocally stating that any cancer 23 warning on a glyphosate-based herbicide would be “false and misleading” and thus render the 24 labeling “misbranded” in Violation of FIFRA. See P1.’s MIL No. 4, Ex. 4 at 1; see also 7 U.S.C. 25 § 136j(a)(1)(E) (making it unlawful to sell misbranded pesticides); id. § 136(q)(1)(A) (pesticide is 26 “misbranded” if “its labeling bears any statement which is . . . false or misleading in any particular”). 27 In its August 2019 letter, EPA explained to registrants that although “California listed glyphosate 28 as a substance under Proposition 65 [that required. a cancer warning], based on the International 1 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION IN LIIVHNE NO. 4