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
OR16|NAL
SUPERIOR COUP\T '
(CA SBN 119854)
Paul R. Kiesel I _ 0F CAL
CQAUM Y 0F SAN BERNArleDQrfig'A
u N
Melanie Meneses Palmer (CA SBN 286752) eERN/xammo mmlcr
KIESEL LAW LLP
:JCT 1 8 2021
8648 Wilshire Boulevard
Beverly Hills, California 9021 1-2910
r‘ll/vl’
Tel: 310-854-4444 / Fax: 310-854-0812 BY
kiese1@kiesel.law
Nagy“: ’- ”‘"*~~~~««.w
palmer@kiesel.law ROBWKQET’ZMEIEETDEPUTY
Fletcher V. Trammell, Esq. William D. Shapiro, Esq.
Melissa Binstock Ephron, Esq. Brian D. Shapiro, Esq.
TRAMMELL, PC Matthew D. Shapiro, Esq.
FAX
3262 Westheimer Rd., Ste. 423 LAW OFFICES OF
Houston, TX 77098 WILLIAM D. SHAPIRO
Tel: (800) 405-1740 / Fax: (800) 532-0992 893 East Brier Drive
fletch@trammellpc.com San Bernardino, CA 92408-2837
BY melissa@trammellpc.com Tel: 909/890- 1 000
Fax: 909/890-1001
Attorneysfor Plaintiff bill@wshapir0.com
10 DONNETTA STEPHENS brian@wshapiro.com
matt@wshapir0.com
11
LLP
12 SUPERIOR COURT OF THE STATE OF CALIFORNIA
California
Law
at
13 COUNTY OF SAN BERNARDINO
LAW
Hills,
14 DONNETTA STEPHENS, Case N0. CIVSB2104801
Attorneys
KIESEL
15 Plaintiff, Assignedfor All Purposes t0 the Hon. Gilbert
Beverly
G. Ochoa, Dept. 524
16 V.
PLAINTIFF’S OPPOSITION TO
17 MONSANTO COMPANY, ET AL., DEFENDANT’S BRIEF REGARDING
EXPERTS’ UNRELATED
18 Defendant. ENGAGEMENTS AND FINANCES
19 Department: $24
Judge: Hon. Gilbert G. Ochoa
20
Complaint Filed: August 14, 2020
21 Trial Date: July 19, 2021
22
23
24
25
26
27
28
PLAINTIFF’S OPPOSITION TO DEFENDANT’S BRIEF REGARDING EXPERTS’
UNRELATED ENGAGEMENTS AND FINANCES
I. ARGUMENT
A. Dr. Sawyer should be permitted to testify about his retention by Bayer
Corporation and by Arnold & Porter.
On June 15, 2021 and June 22, 2021, the parties negotiated certain stipulations relating to
anticipated motions in limine. The stipulation at issue presently is paragraph 5 which states as
follows:
5. No Party shall introduce or refer to evidence or argument regarding any expert’s
finances 0r personal assets except to the extent it relates to any of the following:
a. glyphosatelitigation;
b. other expert or consultant engagements with any law firm appearing as
counsel of record in the Stephens v. Monsanto action; or
c. expert or consultant engagements related to an exposure considered by the
Agency for Research on Cancer, to the extent the
International expert had any
10 involvement with IARC’s consideration of that exposure.
This includes excluding references to Dr. William Sawyer’s boat.
11
Ephron Decl. 1]
2 (emphasis added). The evidence Plaintiff seeks t0 introduce is two-fold:
LLP
12
California
(1) evidence 0f Dr. Sawyer’s retention by Monsanto’s parent company, Bayer Corporation; and (2)
Law
13
LAW
at evidence 0f Dr. Sawyer’s retention by Arnold & Porter, a law firm that represents Monsanto in
Hills,
14
Roundup litigations. Plaintiff should be permitted to introduce this evidence for the reasons stated
Attorneys
KIESEL
15 below.
Beverly
16 In interpreting a contract, the words in the contract are to be understood “in their ordinary
and popular sense.” Cal. Civ. Code, § 1644; Grebow v. Mercury Ins. C0. (2015) 241 Cal.App.4th
17
564, 571. Assessing paragraph 5 and giving the terms therein “their ordinary and popular sense,”
18
the prohibition clearly only covers evidence relating to an expert’s financial status. In other words,
19
the stipulation is concerned with limiting the introduction ofevidence ofhow much money an expert
20
has made from his services as an expert 0r his related resulting wealth. There is n0 prohibition
21 against introducing expert retentions which are separate and apart from the monetary payment the
22 expert may have received. As such, evidence 0f expert retentions should be admissible.
Furthermore, even assuming arguendo that expert retentions are somehow captured by
23
paragraph 5, it is well established under California law that, where there is no consensus ad idem,
24
there cannot be a binding contract. Grebow, 241 Cal.App.4‘h at 571 (The
25
fundamental rules of contract interpretation are based on the premise that the interpretation 0f
26
a contract must give effect t0 the “mutual intention” of the parties); See also Balistreri v. Nevada
27 Livestock Production Credit Assn. (1989) 214 Cal.App.3d 635, 642 [citing qufles v. Wichelhaus
28 (1864) 159 Eng.Rep. 375 (2 H. & C. 906)]. Here, Plaintiff entered the stipulation with the
1
PLAINTIFF’S OPPOSITION T0 DEFENDANT’S BRIEF REGARDING EXPERTS’
UNRELATED ENGAGEMENTS AND FINANCES
Document Filed Date
October 18, 2021
Case Filing Date
August 14, 2020
Category
Product Liability Unlimited
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OR16|NAL SUPERIOR COUP\T ' (CA SBN 119854) Paul R. Kiesel I _ 0F CAL CQAUM Y 0F SAN BERNArleDQrfig'A u N Melanie Meneses Palmer (CA SBN 286752) eERN/xammo mmlcr KIESEL LAW LLP :JCT 1 8 2021 8648 Wilshire Boulevard Beverly Hills, California 9021 1-2910 r‘ll/vl’ Tel: 310-854-4444 / Fax: 310-854-0812 BY kiese1@kiesel.law Nagy“: ’- ”‘"*~~~~««.w palmer@kiesel.law ROBWKQET’ZMEIEETDEPUTY Fletcher V. Trammell, Esq. William D. Shapiro, Esq. Melissa Binstock Ephron, Esq. Brian D. Shapiro, Esq. TRAMMELL, PC Matthew D. Shapiro, Esq. FAX 3262 Westheimer Rd., Ste. 423 LAW OFFICES OF Houston, TX 77098 WILLIAM D. SHAPIRO Tel: (800) 405-1740 / Fax: (800) 532-0992 893 East Brier Drive fletch@trammellpc.com San Bernardino, CA 92408-2837 BY melissa@trammellpc.com Tel: 909/890- 1 000 Fax: 909/890-1001 Attorneysfor Plaintiff bill@wshapir0.com 10 DONNETTA STEPHENS brian@wshapiro.com matt@wshapir0.com 11 LLP 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA California Law at 13 COUNTY OF SAN BERNARDINO LAW Hills, 14 DONNETTA STEPHENS, Case N0. CIVSB2104801 Attorneys KIESEL 15 Plaintiff, Assignedfor All Purposes t0 the Hon. Gilbert Beverly G. Ochoa, Dept. 524 16 V. PLAINTIFF’S OPPOSITION TO 17 MONSANTO COMPANY, ET AL., DEFENDANT’S BRIEF REGARDING EXPERTS’ UNRELATED 18 Defendant. ENGAGEMENTS AND FINANCES 19 Department: $24 Judge: Hon. Gilbert G. Ochoa 20 Complaint Filed: August 14, 2020 21 Trial Date: July 19, 2021 22 23 24 25 26 27 28 PLAINTIFF’S OPPOSITION TO DEFENDANT’S BRIEF REGARDING EXPERTS’ UNRELATED ENGAGEMENTS AND FINANCES I. ARGUMENT A. Dr. Sawyer should be permitted to testify about his retention by Bayer Corporation and by Arnold & Porter. On June 15, 2021 and June 22, 2021, the parties negotiated certain stipulations relating to anticipated motions in limine. The stipulation at issue presently is paragraph 5 which states as follows: 5. No Party shall introduce or refer to evidence or argument regarding any expert’s finances 0r personal assets except to the extent it relates to any of the following: a. glyphosatelitigation; b. other expert or consultant engagements with any law firm appearing as counsel of record in the Stephens v. Monsanto action; or c. expert or consultant engagements related to an exposure considered by the Agency for Research on Cancer, to the extent the International expert had any 10 involvement with IARC’s consideration of that exposure. This includes excluding references to Dr. William Sawyer’s boat. 11 Ephron Decl. 1] 2 (emphasis added). The evidence Plaintiff seeks t0 introduce is two-fold: LLP 12 California (1) evidence 0f Dr. Sawyer’s retention by Monsanto’s parent company, Bayer Corporation; and (2) Law 13 LAW at evidence 0f Dr. Sawyer’s retention by Arnold & Porter, a law firm that represents Monsanto in Hills, 14 Roundup litigations. Plaintiff should be permitted to introduce this evidence for the reasons stated Attorneys KIESEL 15 below. Beverly 16 In interpreting a contract, the words in the contract are to be understood “in their ordinary and popular sense.” Cal. Civ. Code, § 1644; Grebow v. Mercury Ins. C0. (2015) 241 Cal.App.4th 17 564, 571. Assessing paragraph 5 and giving the terms therein “their ordinary and popular sense,” 18 the prohibition clearly only covers evidence relating to an expert’s financial status. In other words, 19 the stipulation is concerned with limiting the introduction ofevidence ofhow much money an expert 20 has made from his services as an expert 0r his related resulting wealth. There is n0 prohibition 21 against introducing expert retentions which are separate and apart from the monetary payment the 22 expert may have received. As such, evidence 0f expert retentions should be admissible. Furthermore, even assuming arguendo that expert retentions are somehow captured by 23 paragraph 5, it is well established under California law that, where there is no consensus ad idem, 24 there cannot be a binding contract. Grebow, 241 Cal.App.4‘h at 571 (The 25 fundamental rules of contract interpretation are based on the premise that the interpretation 0f 26 a contract must give effect t0 the “mutual intention” of the parties); See also Balistreri v. Nevada 27 Livestock Production Credit Assn. (1989) 214 Cal.App.3d 635, 642 [citing qufles v. Wichelhaus 28 (1864) 159 Eng.Rep. 375 (2 H. & C. 906)]. Here, Plaintiff entered the stipulation with the 1 PLAINTIFF’S OPPOSITION T0 DEFENDANT’S BRIEF REGARDING EXPERTS’ UNRELATED ENGAGEMENTS AND FINANCES