On August 14, 2020 a
Party Discovery
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
ORDINAL
L Lu: D
SUPERIOR CCL'RT OF (JALIFomnA
Paul R. Kiesel (CA SBN 119854) COUNTY 0F SAN BERNARDINO
SAN BERNARDINO DISTRICT
Melanie Meneses Palmer (CA SBN 286752)
KIESEL LAW LLP
8648 Wilshire Boulevard JUL 3 U 2021
Beverly Hills, California 9021 1-2910
u
Tel: 310-854-4444
Fax: 310-854-0812
BY imam
5,) DEPUTY
kiesel@kiesel.law
palmer@kiesel.law
Fletcher V. Trammell, Esq. Alexander G. Dwyer
Melissa Binstock Ephron, Esq. Andrew F. Kirkendall
FAX
TRAMMELL, PC Erin M. Wood
3262 Westheimer Rd., Ste. 423 KIRKENDALL DWYER LLP
\OOONO
Houston, TX 77098 4343 Sigma Rd, Suite 200
Tel: (800) 405-1740 Dallas, TX 75244
BY Fax: (800) 532-0992 Tel: 214-271-4027
fletch@trammellpc.com Fax: 214-253—0629
10 melissa@trammellpc.com ad@kirkendalldwyer.com
ak@kirkendalldwyer.com
11 Attorneys for Plaintifi’ ewood@kirkendalldwyer.com
DONNETTA STEPHENS
12
LLP
SUPERIOR COURT OF THE STATE OF CALIFORNIA
California
Law 13
at
LAW
14
Attorneys
Hills,
COUNTY OF SAN BERNARDINO
15
KIESEL
Beverly DONNETTA STEPHENS, Case N0. CIVSB2104801
16
Plaintiff, Assignedfor All Purposes t0 the Hon. Gilbert
17 G. Ochoa, Dept. S24
V.
18 PLAINTIFF’S MEMORANDUM OF
MONSANTO COMPANY, ET AL., POINTS AND AUTHORITIES
19 CONCERNING THE INADMISSIBILITY
Defendant. OF EPA DOCUMENTS
20
Department: 824
21 Judge: Hon. Gilbert G. Ochoa
22
Complaint Filed: August 14, 2020
23 Trial Date: July 19, 2021
24
25
26
27
28
Case N0. CIVSB2104801
PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES CONCERNING THE
INADMISSIBILITY OF EPA DOCUMENTS
Defendant Monsanto seeks t0 introduce the very evidence that this Court excluded when it
granted Plaintiff’s Motion in Limine No. 5 t0 Exclude Certain U.S. EPA Documents Relating to
Glyphosate’s Carcinogenicity. Despite the Court’s prior ruling, Monsanto insists that it should be
permitted t0 cross-examine Plaintiff’s experts regarding the EPA Reports. Monsanto’s repeated
attempts to put inadmissible hearsay before the jury violate California Evidence Code sections 1200,
721(b), and 352. Plaintiff respectfully requests that this Court preclude Monsanto from cross-
examining Plaintiff’s experts on the substance, content, and/or tenor of the EPA Reports.
I. The EPA Documents are lnadmissible Hearsay for Which No Exception Applies
The EPA Reports are nothing more than reviews of existing literature and self—serving data
submitted by Monsanto (and other manufacturers in the industry) t0 the EPA, rendering the EPA
reports double hearsay. The only possible reason Monsanto would introduce the EPA Reports is for
10
the opinions contained therein that glyphosate is not a probable human carcinogen. This is
11
impermissible hearsay for which no exception applies. Evid. Code § 1200(a), (b).
12
LLP
II. Cross-Examination 0n the “Content or Tenor” 0f the EPA Reports is Improper
California
Law 13 In order to prevent an adverse party from introducing t0 the jury inadmissible hearsay views
at
LAW
14 of an absent expert, the Legislature enacted Evidence Code section 721(b), which provides that an
Hills,
Attorneys
15
expert may not be cross-examined regarding the “content 0r tenor 0f any scientific, technical, or
KIESEL
Beverly
professional text, treatise, journal, or similar publication” unless:
16
(l) The witness referred to, considered, or relied upon such publication in arriving at
17 or forming his or her opinion,
(2) The publication has been admitted in evidence, [or]
18
(3) The publication has been established as a reliable authority by the testimony or
admission 0f the witness or by other expen testimony 0r by judicial notice.
19
20 Cal. Evid. Code § 721. If any of these circumstances are met, the adverse party may have relevant
21
portions 0f the publication read into evidence, but the publications may not be received as an exhibit.
Id. None 0f the exceptions of section 72 I(b) have been met here. While Plaintiff’ s experts may have
22
read some of the EPA Reports, they did not refer t0, consider, or rely upon the EPA Reports in
23
forming their opinions in this matter. Thus, cross-examination concerning the content or tenor of
24
the EPA Reports would be improper. As explained in the commentary of section 721:
25 a rule permitting cross—examination on technical treatises not considered by the
expert witness would permit the cross—examiner t0 utilize this opportunity not for its
26
ostensible purpose—to test the expert’s opinion—but to bring before the trier of fact
the opinions of absentee authors without the safeguard of cross—examination.
27
Although the court would be required upon request to caution the jury that the
28 statements read are not to be considered evidence of the truth of the propositions
1 Case N0. CIVSBZ 104801
PLAINTIFF’S MEMORANDUM 0F POINTS AND AUTHORITIES CONCERNING THE
INADMISSIBILITY OF EPA DOCUMENTS
Document Filed Date
July 30, 2021
Case Filing Date
August 14, 2020
Category
Product Liability Unlimited
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ORDINAL L Lu: D SUPERIOR CCL'RT OF (JALIFomnA Paul R. Kiesel (CA SBN 119854) COUNTY 0F SAN BERNARDINO SAN BERNARDINO DISTRICT Melanie Meneses Palmer (CA SBN 286752) KIESEL LAW LLP 8648 Wilshire Boulevard JUL 3 U 2021 Beverly Hills, California 9021 1-2910 u Tel: 310-854-4444 Fax: 310-854-0812 BY imam 5,) DEPUTY kiesel@kiesel.law palmer@kiesel.law Fletcher V. Trammell, Esq. Alexander G. Dwyer Melissa Binstock Ephron, Esq. Andrew F. Kirkendall FAX TRAMMELL, PC Erin M. Wood 3262 Westheimer Rd., Ste. 423 KIRKENDALL DWYER LLP \OOONO Houston, TX 77098 4343 Sigma Rd, Suite 200 Tel: (800) 405-1740 Dallas, TX 75244 BY Fax: (800) 532-0992 Tel: 214-271-4027 fletch@trammellpc.com Fax: 214-253—0629 10 melissa@trammellpc.com ad@kirkendalldwyer.com ak@kirkendalldwyer.com 11 Attorneys for Plaintifi’ ewood@kirkendalldwyer.com DONNETTA STEPHENS 12 LLP SUPERIOR COURT OF THE STATE OF CALIFORNIA California Law 13 at LAW 14 Attorneys Hills, COUNTY OF SAN BERNARDINO 15 KIESEL Beverly DONNETTA STEPHENS, Case N0. CIVSB2104801 16 Plaintiff, Assignedfor All Purposes t0 the Hon. Gilbert 17 G. Ochoa, Dept. S24 V. 18 PLAINTIFF’S MEMORANDUM OF MONSANTO COMPANY, ET AL., POINTS AND AUTHORITIES 19 CONCERNING THE INADMISSIBILITY Defendant. OF EPA DOCUMENTS 20 Department: 824 21 Judge: Hon. Gilbert G. Ochoa 22 Complaint Filed: August 14, 2020 23 Trial Date: July 19, 2021 24 25 26 27 28 Case N0. CIVSB2104801 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES CONCERNING THE INADMISSIBILITY OF EPA DOCUMENTS Defendant Monsanto seeks t0 introduce the very evidence that this Court excluded when it granted Plaintiff’s Motion in Limine No. 5 t0 Exclude Certain U.S. EPA Documents Relating to Glyphosate’s Carcinogenicity. Despite the Court’s prior ruling, Monsanto insists that it should be permitted t0 cross-examine Plaintiff’s experts regarding the EPA Reports. Monsanto’s repeated attempts to put inadmissible hearsay before the jury violate California Evidence Code sections 1200, 721(b), and 352. Plaintiff respectfully requests that this Court preclude Monsanto from cross- examining Plaintiff’s experts on the substance, content, and/or tenor of the EPA Reports. I. The EPA Documents are lnadmissible Hearsay for Which No Exception Applies The EPA Reports are nothing more than reviews of existing literature and self—serving data submitted by Monsanto (and other manufacturers in the industry) t0 the EPA, rendering the EPA reports double hearsay. The only possible reason Monsanto would introduce the EPA Reports is for 10 the opinions contained therein that glyphosate is not a probable human carcinogen. This is 11 impermissible hearsay for which no exception applies. Evid. Code § 1200(a), (b). 12 LLP II. Cross-Examination 0n the “Content or Tenor” 0f the EPA Reports is Improper California Law 13 In order to prevent an adverse party from introducing t0 the jury inadmissible hearsay views at LAW 14 of an absent expert, the Legislature enacted Evidence Code section 721(b), which provides that an Hills, Attorneys 15 expert may not be cross-examined regarding the “content 0r tenor 0f any scientific, technical, or KIESEL Beverly professional text, treatise, journal, or similar publication” unless: 16 (l) The witness referred to, considered, or relied upon such publication in arriving at 17 or forming his or her opinion, (2) The publication has been admitted in evidence, [or] 18 (3) The publication has been established as a reliable authority by the testimony or admission 0f the witness or by other expen testimony 0r by judicial notice. 19 20 Cal. Evid. Code § 721. If any of these circumstances are met, the adverse party may have relevant 21 portions 0f the publication read into evidence, but the publications may not be received as an exhibit. Id. None 0f the exceptions of section 72 I(b) have been met here. While Plaintiff’ s experts may have 22 read some of the EPA Reports, they did not refer t0, consider, or rely upon the EPA Reports in 23 forming their opinions in this matter. Thus, cross-examination concerning the content or tenor of 24 the EPA Reports would be improper. As explained in the commentary of section 721: 25 a rule permitting cross—examination on technical treatises not considered by the expert witness would permit the cross—examiner t0 utilize this opportunity not for its 26 ostensible purpose—to test the expert’s opinion—but to bring before the trier of fact the opinions of absentee authors without the safeguard of cross—examination. 27 Although the court would be required upon request to caution the jury that the 28 statements read are not to be considered evidence of the truth of the propositions 1 Case N0. CIVSBZ 104801 PLAINTIFF’S MEMORANDUM 0F POINTS AND AUTHORITIES CONCERNING THE INADMISSIBILITY OF EPA DOCUMENTS