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.
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QRRGYXNAL
Bart H. Williams (State Bar N0. 134009)
bwilliams .proskauer.com Fl L E D
Manuel F. achén (State Bar No. 216987)
Stépoamgsgsgmgzficw'mm
mcachan proskauerfiom
'
SAN BERNARDINO DISATRRa’ZNrO
Shawn edingham, Jr. (State Bar N0. 275268)
S.
sledinghalfigproskauercom JUL
PROSKA R ROSE LLP 1 2 2021
2029 Century Park East
Suite 2400
Los Angeles, CA 90067
Telephone: (3 1 0) 557-2900
Facsunile: (3 10) 557-2 1 93
BY
g2
@
G. HJT'REA‘E
AY, DEPUTY
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
10 Telephone: (2 1 2) 969-3000
Facsimile: (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. CIVSBZ 1 04801
16 Plaintiff DEFENDANTS’ OPPOSITION TO
PLAINTIFF’S MOTION INLIMINE NO. l
17
vs. TO EXCLUDE EVIDENCE OF THE
BENEFITS OR EFFICACY OF
MONSANTO COMPANY, WILBUR-ELLIS GLYPHOSATE 0R GLYPHOSATE-
18 AND CROWN ACE
NUTRITION, LLC BASED FORMULATIONS
HARDWARE,
19
Judge: Hon. Gilbert G. Ochoa
Defend ants. Dept: SZ4—SBJC
20
Complaint Filed: August 4, 2020
Trial Date: July 19, 2021
21 Hearing Date: July 15, 2021
Time: 9:00 am.
22
[Filed concurrently with Omnibus Declaration
23 0f Shawn S. Ledingham, J12; refers to
previously submitted Omnibus Declaration of
24 Jennifer L. Jones, filed July 2, 2021]
25
26
27
28
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION INLIMINE NO. l
,,
I. INTRODUCTION
Plaintiff’s Motion in Limine No. 1 seeks to exclude a broad array of scientific evidence,
including even evidence of how glyphosate and glyphosate-based formulations
work, on the flawed
theory that any evidence of Roundup’s benefits and efficacy is irrelevant. In fact, Roundup’s
benefits are relevant to many of the material issues in this case, including the jury’s assessment of
Plaintiff’s putative exposure and causation, design—defect claims, negligence claims, request for
\OWVQUI-b
punitive damages, and contention that Defendants (and their employees) acted
With improper
motives. For these reasons, the Courts in Caballero, Pillz'oa’, and Johnson all considered and denied
motions nearly identical to the one submitted here. See Omnibus Declaration of Jennifer L.
Jones
10 in Support of Defendants’ Motions in Limine (“Jones Decl.”), Ex. 4 (Caballero Order) at p. 48; Ex.
11 3 (Pilliod Order) at p. 1; Ex. 1 (Johnson Order) at p. 3.
12 Plaintiff claims that any and all evidence of Roundup’s efficacy is irrelevant because the
13 consumer expectations test applies to her strict lability design-defect claim. But as the Johnson
14 Court correctly concluded, such evidence is relevant and admissible even ifPlaintiff is correct about
15 that test (and she is not). Plaintiff s motion seeks to give the jury a skewed, incomplete, and illogical
16 view 0f Roundup as a product with alleged risks, but with n0 benefits. Such an approach would
17 undoubtedly unfairly prejudice Defendants. Plaintiff’s motion should be denied.
18 II. ARGUMENT
19 Plaintiff’s principal argument regarding the alleged irrelevance 0f glyphosate’s benefits
20 centers 0n her claim for strict liability design-defect and her contention that the consumer-
21 expectations test applies t0 that claim. P1.’s MIL '1
at 5-7. As t0 that claim, Defendants contend
22 that this Court should instead apply the risk-benefit test. But at this stage, the Court need not resolve
23 the legal dispute over which test applies in order to rule 0n Plaintifs motion. As Judge Kamow
24 ruled in the Johnson matter, the benefits of glyphosate, including its properties and efficacy, are
25 essential background information, and are relevant affirmative and/or rebuttal evidence for
26 causation and a host 0f additional issues, regardless of Which test applies:
27 Evidence regarding the benefits and efficacy of glyphosate may be relevant at least
as
(1) background information, (2) perhaps pertaining t0 punitive damages, and
28 (3)
peltaining t0 its tendency t0 “drift” or not (i.e., whether the
spray at issue is 10W
1
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION INLIMINE N0. l
Document Filed Date
July 12, 2021
Case Filing Date
August 14, 2020
Category
Product Liability Unlimited
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QRRGYXNAL Bart H. Williams (State Bar N0. 134009) bwilliams .proskauer.com Fl L E D Manuel F. achén (State Bar No. 216987) Stépoamgsgsgmgzficw'mm mcachan proskauerfiom ' SAN BERNARDINO DISATRRa’ZNrO Shawn edingham, Jr. (State Bar N0. 275268) S. sledinghalfigproskauercom JUL PROSKA R ROSE LLP 1 2 2021 2029 Century Park East Suite 2400 Los Angeles, CA 90067 Telephone: (3 1 0) 557-2900 Facsunile: (3 10) 557-2 1 93 BY g2 @ G. HJT'REA‘E AY, DEPUTY 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 10 Telephone: (2 1 2) 969-3000 Facsimile: (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. CIVSBZ 1 04801 16 Plaintiff DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION INLIMINE NO. l 17 vs. TO EXCLUDE EVIDENCE OF THE BENEFITS OR EFFICACY OF MONSANTO COMPANY, WILBUR-ELLIS GLYPHOSATE 0R GLYPHOSATE- 18 AND CROWN ACE NUTRITION, LLC BASED FORMULATIONS HARDWARE, 19 Judge: Hon. Gilbert G. Ochoa Defend ants. Dept: SZ4—SBJC 20 Complaint Filed: August 4, 2020 Trial Date: July 19, 2021 21 Hearing Date: July 15, 2021 Time: 9:00 am. 22 [Filed concurrently with Omnibus Declaration 23 0f Shawn S. Ledingham, J12; refers to previously submitted Omnibus Declaration of 24 Jennifer L. Jones, filed July 2, 2021] 25 26 27 28 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION INLIMINE NO. l ,, I. INTRODUCTION Plaintiff’s Motion in Limine No. 1 seeks to exclude a broad array of scientific evidence, including even evidence of how glyphosate and glyphosate-based formulations work, on the flawed theory that any evidence of Roundup’s benefits and efficacy is irrelevant. In fact, Roundup’s benefits are relevant to many of the material issues in this case, including the jury’s assessment of Plaintiff’s putative exposure and causation, design—defect claims, negligence claims, request for \OWVQUI-b punitive damages, and contention that Defendants (and their employees) acted With improper motives. For these reasons, the Courts in Caballero, Pillz'oa’, and Johnson all considered and denied motions nearly identical to the one submitted here. See Omnibus Declaration of Jennifer L. Jones 10 in Support of Defendants’ Motions in Limine (“Jones Decl.”), Ex. 4 (Caballero Order) at p. 48; Ex. 11 3 (Pilliod Order) at p. 1; Ex. 1 (Johnson Order) at p. 3. 12 Plaintiff claims that any and all evidence of Roundup’s efficacy is irrelevant because the 13 consumer expectations test applies to her strict lability design-defect claim. But as the Johnson 14 Court correctly concluded, such evidence is relevant and admissible even ifPlaintiff is correct about 15 that test (and she is not). Plaintiff s motion seeks to give the jury a skewed, incomplete, and illogical 16 view 0f Roundup as a product with alleged risks, but with n0 benefits. Such an approach would 17 undoubtedly unfairly prejudice Defendants. Plaintiff’s motion should be denied. 18 II. ARGUMENT 19 Plaintiff’s principal argument regarding the alleged irrelevance 0f glyphosate’s benefits 20 centers 0n her claim for strict liability design-defect and her contention that the consumer- 21 expectations test applies t0 that claim. P1.’s MIL '1 at 5-7. As t0 that claim, Defendants contend 22 that this Court should instead apply the risk-benefit test. But at this stage, the Court need not resolve 23 the legal dispute over which test applies in order to rule 0n Plaintifs motion. As Judge Kamow 24 ruled in the Johnson matter, the benefits of glyphosate, including its properties and efficacy, are 25 essential background information, and are relevant affirmative and/or rebuttal evidence for 26 causation and a host 0f additional issues, regardless of Which test applies: 27 Evidence regarding the benefits and efficacy of glyphosate may be relevant at least as (1) background information, (2) perhaps pertaining t0 punitive damages, and 28 (3) peltaining t0 its tendency t0 “drift” or not (i.e., whether the spray at issue is 10W 1 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION INLIMINE N0. l