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

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     Bart H. Williams (State Bar No. 134009)
     bwilliams proskauer.com
     Manuel F. .achém (State Bar No. 216987)
     mcachan proskauemom'                                                        l   L
     Shawn   S.    edingham,    (State
                                  Jr.    Bar No. 275268)          SUPER‘ORC SAN BER ARD o
     sledingham      proskauer.com                                    CSXSTBYESSARDNO    013mm
     PROSKAU        R ROSE LLP                                                           2021
     2029 Century Park East                                                    JUL 1 2
     Suite 2400
     Los Angeles, CA 90067
     Telephone: (310) 557-2900                                   BY
     Facsmfile: (310) 557—2193
                                                                           ’
                                                                               egafi’REAisaAv, DEPUTY

     Lee M. Popkin (admitted pro hac       vice)
     1 opkin ,proskauer.com
     5. Jenni er Yang (admitted pro hac vice)
     jyang proskauer.com
     PROS         UER ROSE LLP
     11   Times S uare
     New York,         1   0036
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 STEPPENS,                                    Case No. CIVSB2 104801

16                                      Plaintifl           DEFENDANTS’ OPPOSITION TO
                                                           PLAINTIFF’S MOTION IN LIMINE NO. 7
17
             vs.                                           T0 EXCLUDE EVIDENCE, TESTIMONY,
                                                           OR ARGUNIENT OF PLAINTIFF’S
     MONSANTO COMPANY, WILBUR-ELLIS                        SMOKING HISTORY, CANNABIS USE, OR
18               AND CROWN ACE
     NUTRITION, LLC                                        PAIN MEDICATION USE OR
     HARDWARE,                                             DEPENDENCE
19
                                        Defendants.        Judge: Hon. Gilbert G. Ochoa
20                                                         Dept: SZ4-SBJC
                                                           Complaint Filed: August 4, 2020
21                                                         Trial Date: July 19, 2021
                                                           Hearing Date: July 15, 2021
22                                                         Time: 9:00 a.m.

23                                                         [Filed concurrently with Omnibus Declaration   of
                                                           Shawn S. Ledin ham, JL; refers to reviously
                                                           submitted Omni us Declaration of ennifer L.
24
                                                           Jones, filed July 2, 2021]

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                      DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION IN LINIINE NO.                7
      I.       INTRODUCTION
               Plaintiff’s     Motion        in   Limine No. 7 seeks to exclude evidence of                               Plaintiff‘s history        of

      smoking, cannabis use} and use or dependency on pain medications of various types.                                                    The core

      underpinning of Plaintiff’s motion                 is    her contention that her smoking and pain medication use                               is


      Wholly irrelevant and inadmissible unless Defendants can prove                                       that these   were the cause of her

      NHL.     This rationale        is   legally   flawed and           ignores the      full   relevance 0f these portions of Plaintiff’s

      medical history t0 her allegations in              this case.        Indeed, the          trial   courts in both Pilliod and Caballero

      denied    plaintiffs’    motions       in limine substantially similar to the instant                         motion, in Which plaintiffs

      sought t0 exclude evidence of their smoking history. See Omnibus Declaration of Jennifer L. Jones

10    in Support     of Defendants’ Motions                   in   Limine (“Jones Decl.”) Ex.                    3 (Pilliod Order) at 2, Ex.          4

'11
      (Caballero Order)        at 50.


12             First, Plaintiff’s         motion impermissibly attempts                   to shift the          burden of proof to Defendants.

13    Contrary to Plaintiff’s position, Defendants do not bear the burden 0f proving that Plaintiff’s

14    smoking 0r pain medication use caused her NHL. Rather,                                     Plaintiff has the      burden of proving that

15    Roundup caused her NHL, and Defendants                               are entitled t0 rebut Plaintiff’s causation case                          by

16    producing evidence 0f other risk factors that                        may have          increased Plaintiffs fisk 0f              NHL,   or   may
17    have been just as        likely as      Roundup         to   have caused her           NHL.        Here, the evidence will show that

18    Plaintiff has   a.   history of extensive use of pain medications (including opioids), and that these pain

19    medications have been linked to                 NHL. See Omnibus                   Declaration of           Shawn   S.    Ledingham,     Jr.   in


2O    Support of Defendants’                Oppositions            to   Plaintiff’s      Motions          z'n   Limine Nos.       1   Through        12

21    (“Ledingham Decl.”) Ex. 25                  at 8-9; Pl.’s     MIL     7 at    4.   In addition, Plaintiff has an at least 13-year

22    smoking history         that   began when she was a teenager/young                            adult, as well as a history            of passive

23    smoking. Ledingham Decl. Ex. 25 at                      3; Pl.’s    MIL      7 at 4.      The evidence        will also   show   that there is

24    medical    literature that associates          smoking and passive smoking with cancer or NHL                              that is   of similar

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28        Defendants do not oppose the portion 0f the motion regarding cannabis use.



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                           DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO.                                             7