On August 14, 2020 a
Trial Materials
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
Bali H. Williams (State Bar No. 134009)
bwilliams@ roskauer.com
Manuel F. achén (State Bar No. 216987)
mcachan@proskauer.com
Shawn S. Ledingham, Jr. (State Bar No. 275268)
sledingham@proskauer.com
PROSKAUER ROSE LLP
2029 Century Park East F I L D
Suite 2400 IOR COURT EF CALIFORNIA
Los Angeles, CA 90067
SUCFBESNTY0F SAN BERNARDINO
SAN BERNARmNo DISTRICT
Telephone: (3 10) 557-2900
Fac51mile: (3 1 0) 557—2 1 93 AUG 3 0 2021
Lee M. Popkin (admitted pro hac vice)
lpopkin proskauer.com /
Q. Jenni er Yang (admitted pro hac vice)
Flang@proskauer.com
ROSKAUER ROSE LLP
BY
WfiIER DEPUTY
11 Times Square
New York, NY 10036
10 Telephone: (212) 969—3000
FaCSImile: (212) 969-2900
11
Attorneys for Defendant
12 MONSANTO COMPANY
13 SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN BERNARDINO
14
DONNETTA STEPHENS, Case N0. CIVSB2104801
15
Plaintiff DEFENDANT’S TRIAL BRIEF REGARDING
16 THE INADMISSIBILITY OF TESTIMONY
VS. REGARDING DR. PARRY’S REPORTS
17
MONSANTO COMPANY, WILBUR—ELLIS Judge: Hon. Gilbert G. Ochoa
NUTRITION, LLC AND CROWN ACE Dept: S24-SBJC
18 HARDWARE, Complaint Filed: August 4, 2020
Trial Date: July 19, 2021
19 Defendants.
20
21
22
23
24
25
26
27
28
DEFENDANT’S BRIEF REGARDING PARRY REPORTS
1. The Parry Reports Are Not Admissible For A Non-Hearsay Purpose. Plaintiff seeks
to admit evidence regarding two reports written by a third—party consultant Dr. James Parry, Martens
Depo. Ex. 9-4 & Ex. 9-81 (the “Parry Reports”), supposedly t0 show Monsanto was on notice that
glyphosate is genotoxic.2 The Parry Reports, however, did not provide Monsanto with notice 0f
anything. The first report is Dr. Parry’s “evaluation ofthe four papers you [i.e., Monsanto] provided
[t0 Dr. Parry] concerning the potential genotoxicity 0f glyphosate and Roundup.” Martens Dep. EX.
9-4 at 2.3 Dr. Parry did not conduct any experiment of his own 0n the subject or even adopt the
conclusions of those four papers. To the contrary, Dr. Parry’s cover letter t0 the first report states
that he purposely omitted from the report any analysis of the “weaknesses” he identified from the
10 papers, choosing instead to simply “‘pull out’ the data from the papers.” Id. It was essentially a
11 “book report” 0f studies Monsanto already had. The report gave no new notice of anything.
12 Dr. Parry then authored a second report after reviewing additional information Monsanto
13 sent him. Again, Dr. Parry did not conduct any 0f his own experiments. His report was a review
14 article, summan'zing existing studies. And like the first report, Monsanto furnished all ofthe studies
15 to Dr. Parry, for his review. Martens Dep. 97: 19-982. The second report did not provide any new
16 data and therefore could not have given any new “notice” to Monsanto. Plaintiff is thus necessarily
17 seeking t0 introduce the Parry Reports for the hearsay purpose 0f establishing the truth of the
18 contents in the Parry Reports. Accordingly, testimony from Mark Martens (or anyone else) about
19 the contents of the Parry Reports is double hearsay—Dr. Parry’s out—of-coult recitation of the
20 contents of other papers—for which Plaintiff has not articulated any applicable exception.
21 2. The Parry Reports Are Case-Specific Hearsay About Which Dr. Benbrook Cannot
22 Testify. Plaintiff cannot avoid the hearsay issues with the Parry Reports by using Dr. Benbrook as
23 a conduit to introduce the documents to the jury. As this Court has repeatedly acknowledged,
24
1
Exhibit 9—8 to the Martens deposition (also marked as Plaintiff’s trialExhibit 4286) is a 5 1—page
25 hodgepodge of multiple documents. The second Parry Report is in the first 31 pages 0f the exhiblt.
2
EPA’s Cancer Assessment Review Committee, “based on a weight-of-evidence 0fthe in vitro and
26
in vivo studies, concluded that there
no concern for genotoxicity” of glyphosate. Trial Ex. 753 at
is
9. As Dr. Portier testified, regulators around the world have reached the same conclusion. See Aug.
27
10, 2021 Tr. at 69:9-12 (Canada); id. at 8224-8329 (Australia); Aug. 12, 2021 Tr. at 10: 17—16: 13 AM
(World Health Organization); id. at 22: 1—17 (European Union); id. at 38:2—11 (New Zealand).
28 3
Monsanto provided Dr. Parry four studies—Rank (1993), Bolognesi (1997), Peluso (1998), and
Lioi (1998)—to review. Martens Dep. EX. 9—4 at pp. 5—8.
_ 1 _
DEFENDANT’S BRIEF REGARDING PARRY REPORTS
Document Filed Date
August 30, 2021
Case Filing Date
August 14, 2020
Category
Product Liability Unlimited
For full print and download access, please subscribe at https://www.trellis.law/.
Preview
Bali H. Williams (State Bar No. 134009) bwilliams@ roskauer.com Manuel F. achén (State Bar No. 216987) mcachan@proskauer.com Shawn S. Ledingham, Jr. (State Bar No. 275268) sledingham@proskauer.com PROSKAUER ROSE LLP 2029 Century Park East F I L D Suite 2400 IOR COURT EF CALIFORNIA Los Angeles, CA 90067 SUCFBESNTY0F SAN BERNARDINO SAN BERNARmNo DISTRICT Telephone: (3 10) 557-2900 Fac51mile: (3 1 0) 557—2 1 93 AUG 3 0 2021 Lee M. Popkin (admitted pro hac vice) lpopkin proskauer.com / Q. Jenni er Yang (admitted pro hac vice) Flang@proskauer.com ROSKAUER ROSE LLP BY WfiIER DEPUTY 11 Times Square New York, NY 10036 10 Telephone: (212) 969—3000 FaCSImile: (212) 969-2900 11 Attorneys for Defendant 12 MONSANTO COMPANY 13 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN BERNARDINO 14 DONNETTA STEPHENS, Case N0. CIVSB2104801 15 Plaintiff DEFENDANT’S TRIAL BRIEF REGARDING 16 THE INADMISSIBILITY OF TESTIMONY VS. REGARDING DR. PARRY’S REPORTS 17 MONSANTO COMPANY, WILBUR—ELLIS Judge: Hon. Gilbert G. Ochoa NUTRITION, LLC AND CROWN ACE Dept: S24-SBJC 18 HARDWARE, Complaint Filed: August 4, 2020 Trial Date: July 19, 2021 19 Defendants. 20 21 22 23 24 25 26 27 28 DEFENDANT’S BRIEF REGARDING PARRY REPORTS 1. The Parry Reports Are Not Admissible For A Non-Hearsay Purpose. Plaintiff seeks to admit evidence regarding two reports written by a third—party consultant Dr. James Parry, Martens Depo. Ex. 9-4 & Ex. 9-81 (the “Parry Reports”), supposedly t0 show Monsanto was on notice that glyphosate is genotoxic.2 The Parry Reports, however, did not provide Monsanto with notice 0f anything. The first report is Dr. Parry’s “evaluation ofthe four papers you [i.e., Monsanto] provided [t0 Dr. Parry] concerning the potential genotoxicity 0f glyphosate and Roundup.” Martens Dep. EX. 9-4 at 2.3 Dr. Parry did not conduct any experiment of his own 0n the subject or even adopt the conclusions of those four papers. To the contrary, Dr. Parry’s cover letter t0 the first report states that he purposely omitted from the report any analysis of the “weaknesses” he identified from the 10 papers, choosing instead to simply “‘pull out’ the data from the papers.” Id. It was essentially a 11 “book report” 0f studies Monsanto already had. The report gave no new notice of anything. 12 Dr. Parry then authored a second report after reviewing additional information Monsanto 13 sent him. Again, Dr. Parry did not conduct any 0f his own experiments. His report was a review 14 article, summan'zing existing studies. And like the first report, Monsanto furnished all ofthe studies 15 to Dr. Parry, for his review. Martens Dep. 97: 19-982. The second report did not provide any new 16 data and therefore could not have given any new “notice” to Monsanto. Plaintiff is thus necessarily 17 seeking t0 introduce the Parry Reports for the hearsay purpose 0f establishing the truth of the 18 contents in the Parry Reports. Accordingly, testimony from Mark Martens (or anyone else) about 19 the contents of the Parry Reports is double hearsay—Dr. Parry’s out—of-coult recitation of the 20 contents of other papers—for which Plaintiff has not articulated any applicable exception. 21 2. The Parry Reports Are Case-Specific Hearsay About Which Dr. Benbrook Cannot 22 Testify. Plaintiff cannot avoid the hearsay issues with the Parry Reports by using Dr. Benbrook as 23 a conduit to introduce the documents to the jury. As this Court has repeatedly acknowledged, 24 1 Exhibit 9—8 to the Martens deposition (also marked as Plaintiff’s trialExhibit 4286) is a 5 1—page 25 hodgepodge of multiple documents. The second Parry Report is in the first 31 pages 0f the exhiblt. 2 EPA’s Cancer Assessment Review Committee, “based on a weight-of-evidence 0fthe in vitro and 26 in vivo studies, concluded that there no concern for genotoxicity” of glyphosate. Trial Ex. 753 at is 9. As Dr. Portier testified, regulators around the world have reached the same conclusion. See Aug. 27 10, 2021 Tr. at 69:9-12 (Canada); id. at 8224-8329 (Australia); Aug. 12, 2021 Tr. at 10: 17—16: 13 AM (World Health Organization); id. at 22: 1—17 (European Union); id. at 38:2—11 (New Zealand). 28 3 Monsanto provided Dr. Parry four studies—Rank (1993), Bolognesi (1997), Peluso (1998), and Lioi (1998)—to review. Martens Dep. EX. 9—4 at pp. 5—8. _ 1 _ DEFENDANT’S BRIEF REGARDING PARRY REPORTS