Motion-Secondary: Stephens -v- Monsanto Company, et al Print

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     1   Bart H. Williams (State Bar No. 134009)
         bwilliams proskauemom
         Manuel F' aChén (State Bar No' 216987)                                                       F   I    L E   D
     2                                                                                       SUPERIOR COURT 0F CAUFORNIA
         mcaChan PTOSkauef-Com                                                                COUNTY 0F SAN BERNN‘EDgO
         Shawn        S.     edingham,   Jr.   (State   Bar No. 275268)                        SAN BERNARD'NO D‘ST         ‘



     3
         sledingham           proskauencom
     4
         PROSKAU              R ROSE LLP                                                              JUL       1 9
                                                                                                                  a 2021
         2029 Century Park East
         Suitepima)
     5   Los    ge es, C  900 67A                                                        BY       I           _,;

         Telephqne: (310) 557-2900                                                                 GIRJ: REAflWAY, DEPUTY
     6   Facsmnle: (310) 557-2193

     7   Lee M. Popkin (admitted pro hac                 vice)
         1    opkin (uproskauer.c0m
     8   .
             ..   Jenni er   Yang   (admitted pro hac vice)
         Jyang        proskauer.com
         PROS              UER ROSE LLP
         11 Times S uare
         New York,       10036
10       Telephone; (212) 969-3000
         Facsimile: (212) 969-2900
M
         Attorneys for Defendants                                                                                                i




12       MONSANTO COMPANY AND CROWN ACE                                                                                          A




         HARDWARE
13
                                     SUPERIOR COURT OF THE STATE OF CALIFORNIA
14                                          COUNTY OF SAN BERNARDINO
'1
     5   DONNETTA STEPI-ENS,                                                Case No. CIVSB2104801

1    6                                             Plaintifi‘                DEFENDANTS’ OPPOSITION TO
                                                                            PLAINTIFF’S MOTION IN LIMINE NO. 6
17
                      vs.                                                   TO EXCLUDE EVIDENCE, TESTIMONY,
                                                                            0R ARGUMENT THAT PLAINTIFF HAS
V        MONSANTO COMPANY, WILBUR—ELLIS                                     RHEUMATOID ARTHRITIS
18                   AND CROWN ACE
         NUTRITION, LLC
,
         HARDWARE,                                                          Judge: Hon. Gilbert G. Ochoa
19
                                                                            Dept: sz4-SBJC
                                                   Defendants               Complaint Filed: August 4, 2020
20                                                                          Trial Date: July 19, 2021
     7
                                                                            Hearing Date: July 15, 2021
21                                                                          Time: 9:00 am.

22                                                                          gFiled      concmently with Omnibus Declaration of
                                                                               hawn     S.   Ledmgham,        IL]
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                               DEFENDANTS’ OPPOSITION T0 PLAINTIFF’S MOTION IN LIMINE NO. 6
            I.      INTRODUCTION
                    Plaintiff’s      Motion       in    Limine No. 6 seeks         t0 preclude      any testimony, evidence, or argument

            about Plaintiff Donnetta Stephens having rheumatoid                             arthritis.    Plaintiff‘s   motion     is   based on the

            flawed      legal   and factual premises, specifically that                 (1)    Defendants bear the burden of establishing

           causation and (2) there           is   “no evidence to support” the contention that Mrs. Stephens had rheumatoid

           arthritis   other than “Defendants             mere say—so.” To the         contrary,     it is   Plaintiff who bears the          burden to

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           prove Roundup caused her                 NHL     and   Plaintiff’s    own document            support the contention that Plaintiff

           has rheumatoid        arthritis.


                    Contrary to       Plaintiff” s position,         Defendants do not bear the burden of proving that                        Plaintiff“ s

10         rheumatoid      arthritis    caused her         NHL.       Rather, Plaintiff has the burden of proving that                        Roundup
11         caused her      NHL, and           Defendants are entitled to rebut                   Plaintiff‘s causation case             by producing
12         evidence of other risk factors that              may have         increased Plaintifi" s risk of NHL, or         may have been just
13         as likely as   Roundup       to   have caused her NHL.

14                  Risk—factor evidence           is   highly relevant to one of the key factual questions in this case—the cause

15         of Plaintifi‘s non-Hodgkin’s lymphoma.                      It is    undisputed that Mrs. Stephens has             arthritis        and both

16         Mrs. Stephens’ expert witness, Dr. Ralph Marcus, and Mrs. Stephens’ treating rheumatolegist, Dr.

17         Ioana Moldovan, have admitted that rheumatoid                              arthritis     is    a risk factor for non-Hodgkin’s

18         lymphoma.       It is   a question of fact whether her               arthritis is appropriately      classified as osteoarthritis 0r

19         rheumatoid      arthritis (or both).          Mrs. Stephens submitted sworn written discovery indicating that she

20         has been diagnosed With rheumatoid                      arthritis,    Which      is   also referenced in her medical records.

21         Plaintiff cannot shield her case              fiom   her   own      admissions and medical records by falsely deeming                      this

22         evidence to be “speculative” in order to prevent the jury from hearing about a relevant risk factor. Mrs.

23         Stephens’     own     admissions and medical records are admissible                      if they   have any tendency          in   reason to

24         prove or disprove any disputed material                            Cal. Evid.    Code
                                                                     fact.                         § 2 10.    That standard   is   plainly met.

25         II.      BACKGROUND
26                  On    October      1,    2020, Mrs. Stephens provided a Plaintiff Fact Sheet containing pertinent

27         medical information, Which she signed under penalty of perjury. Omnibus Declaration of Shawn                                                S.

28         Ledingham,      Jr.     in Support of Defendants’ Oppositions to Plaintiffs                           Motions    in   Limine Nos.            l



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                               DEFENDANTS’ OPPOSITION T0 PLAINTIFF’S MOTION INLIMINE NO. 6