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`Case 3:16-md-02741-VC Document 12783 Filed 03/18/21 Page 1 of 9
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`WILKINSON STEKLOFF LLP
`Brian L. Stekloff (pro hac vice)
`(bstekloff@wilkinsonstekloff.com)
`Rakesh Kilaru (pro hac vice)
`(rkilaru@wilkinsonstekloff.com)
`2001 M St. NW
`10th Floor
`Washington, DC 20036
`Tel:
`202-847-4030
`Fax: 202-847-4005
`
`HOLLINGSWORTH LLP
`Eric G. Lasker (pro hac vice)
`(elasker@hollingsworthllp.com)
`1350 I St. NW
`Washington, DC 20005
`Tel: 202-898-5843
`Fax: 202-682-1639
`
`Attorneys for Defendant
`MONSANTO COMPANY
`
` COVINGTON & BURLING LLP
`Michael X. Imbroscio (pro hac vice)
`(mimbroscio@cov.com)
`One City Center
`850 10th St. NW
`Washington, DC 20001
`Tel: 202-662-6000
`
`
`
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`BRYAN CAVE LEIGHTON PAISNER LLP
`K. Lee Marshall (CA Bar No. 277092)
`(klmarshall@bclplaw.com)
`Three Embarcadero Center, 7th Floor
`San Francisco, CA 94111
`Tel: 415-675-3400
`Fax: 415-675-3434
`
`
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`
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`
`
`IN RE: ROUNDUP PRODUCTS
`LIABILITY LITIGATION
`
`
`This document relates to:
`
`Karman v. Monsanto Co., 3:19-cv-01183-VC
`
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`MDL No. 2741
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`Case No. 3:16-md-02741-VC
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`MONSANTO COMPANY’S NOTICE OF
`MOTION AND MOTION FOR
`SUMMARY JUDGMENT ON STATUTE
`OF LIMITATIONS AND PROXIMATE
`CAUSATION GROUNDS
`
`Hearing Date: May 28, 2021
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`MOTION FOR SUMMARY JUDGMENT ON STATUTE OF LIMITATIONS AND
`PROXIMATE CAUSATION GROUNDS, 3:19-CV-01183
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`Case 3:16-md-02741-VC Document 12783 Filed 03/18/21 Page 2 of 9
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`TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD:
`PLEASE TAKE NOTICE THAT beginning on May 28, 2021, in Courtroom 4 of the United
`States District Court, Northern District of California, located at 450 Golden Gate Avenue, San
`Francisco, CA 94102, or as ordered by the Court, Defendant Monsanto Company (“Monsanto”) will
`present its Motion for Summary Judgment on Statute of Limitations and Proximate Causation
`Grounds. Monsanto seeks an order entering summary judgment in its favor on all claims brought by
`Christine Karman (“Plaintiff”), individually as the representative of the Estate of her husband Robert
`Karman (“Decedent”) (collectively “Plaintiffs”) as timed barred.
`
`DATED: March 18, 2021
`
`
`
`Respectfully submitted,
`/s/ K. Lee Marshall
`K. Lee Marshall
`BRYAN CAVE LEIGHTON PAISNER LLP
`Three Embarcadero Center, 7th Floor
`San Francisco, California 94111
`Tel:
`415-675-3400
`Fax: 415-675-3434
`klmarshall@bclplaw.com
`
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`- ii -
`MOTION FOR SUMMARY JUDGMENT ON STATUTE OF LIMITATIONS AND
`PROXIMATE CAUSATION GROUNDS, 3:19-CV-01183
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`Case 3:16-md-02741-VC Document 12783 Filed 03/18/21 Page 3 of 9
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`MEMORANDUM OF POINTS AND AUTHORITIES
`Based on Plaintiff’s own words, the limitations period for her personal injury, product
`liability, and wrongful death claims ran nearly two years before she filed suit. Plaintiff Christine
`Karman (“Plaintiff”) testified that she and her husband, Robert Karman (“Decedent”), knew in 2015
`that Decedent had developed Non-Hodgkin’s Lymphoma (“NHL”) and that they both believed at that
`time that Decedent’s NHL was caused by his use of Roundup®-branded products (“Roundup”) based
`on an advertisement they saw. Despite this knowledge, Plaintiff did not bring this action until nearly
`four years later 2019. As a result, all of Plaintiff’s claims are time-barred and Monsanto is entitled to
`summary judgment.
`I.
`BACKGROUND
`Plaintiff filed her Complaint, individually and as the representative of the Estate of Decedent
`against Monsanto Company, on February 12, 2019. She claims that Decedent’s use of Roundup
`caused him to develop NHL and seeks damages for this injury. See Complaint (ECF #1) ¶ 1, 126.
`Decedent was diagnosed with NHL on or around July 31, 2015. Id. at ¶ 125. Decedent died from
`complications of NHL on December 15, 2015. Id. at ¶ 126.
`Plaintiff claims that Decedent used Roundup for thirty years for personal use around their
`home. Compl. ¶ 123. Decedent last used Roundup in approximately 2013. Declaration of K. Lee
`Marshall (“Marshall Decl.”) Exhibit 1, Deposition of Christine Karman at 93:21-94:3 (“Pl.’s. Dep.”).
`Shortly before Decedent’s death in 2015, Plaintiff and Decedent saw an attorney advertisement that
`warned about Roundup and NHL. Id. at 29:9-30:13. Plaintiff testified that the advertisement
`specifically connected NHL and Roundup in both of their minds:
`Q:
`Do you remember anything specific about that advertisement other than it talked about
`lymphoma?
`It talked about lymphoma. It talked about death from lymphoma. Yes, that’s what I
`remember.
`Did it talk about Roundup or any other product?
`It was for Roundup.
`
`Q:
`A:
`
`A:
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`MOTION FOR SUMMARY JUDGMENT ON STATUTE OF LIMITATIONS AND
`PROXIMATE CAUSATION GROUNDS, 3:19-CV-01183
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`Case 3:16-md-02741-VC Document 12783 Filed 03/18/21 Page 4 of 9
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`Id. at 216:10-18. After seeing the advertisement, Plaintiff and Decedent instructed their children to
`not use Roundup. Id. at 29:14-22, 215:23-216:9.
`Further, Plaintiff could not recall Decedent ever reading the label on the Roundup bottle:
`Q:
`Do you recall seeing your husband specifically reading the label that was on
`the Roundup bottle?
`No.
`Did he ever tell you he read the label?
`I don’t remember.
`
`A:
`Q:
`A:
`
`Id. at 209:19-24.
`II.
`LEGAL STANDARD
`Summary judgment is required when “there is no genuine dispute as to any material fact and
`the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). A defendant can show
`its entitlement to summary judgment by particularly citing “materials in the record, including
`depositions,” that “establish the absence” of a genuine, material factual dispute. FED. R. CIV. P.
`56(c)(1). Further, “[s]ummary judgment must be entered ‘against a party who fails to make a showing
`sufficient to establish the existence of an element essential to that party’s case, and on which that
`party will bear the burden of proof at trial.’” Abuan v. Gen. Elec. Co., 3 F.3d 329, 332 (9th Cir. 1993)
`(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
`III. ARGUMENT
`Plaintiff, on behalf of Decedent, asserts four survival causes of action against Monsanto:
`Negligence (Count I), Strict Products Liability – Design Defect (Count II), Strict Products Liability
`– Failure to Warn (Count III), and Breach of Implied Warranties (Count IV). See generally Compl.
`All four of these survival claims fail because the limitations periods have run. Additionally, Plaintiff’s
`wrongful death claim, seeking damages on her personal behalf, fails on similar grounds because the
`two year statute of limitations for that claim has run.1 Finally, Plaintiff’s failure to warn claim
`
`
`1 The four survival claims follow the limitations period on the underlying claim, while the wrongful
`death action claims is subject to a separate two-year limitation period from the date of death. 735
`ILCS 5/13-209(a)(1), 740 ILCS 180/2(d), (e).
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`separately fails because Decedent did not read the label on the product so proximate cause cannot be
`proven.
`A.
`
`The Negligence, Strict Product Liability, and Wrongful Death Claims are Barred
`by the Statute of Limitations.
`Under Illinois law, “the statutes of limitation for personal injury and product liability claims
`require that such lawsuits generally be commenced within two years of the date on which the cause
`of action accrued.” Lowe v. Ford Motor Co., 313 Ill. App. 3d 418, 420, 730 N.E.2d 58, 60 (Ill. 2000)
`(citing 735 ILCS 5/13–202). The limitations period begins to run when “the plaintiff knows or
`reasonably should know that he has been injured and that his injury was wrongfully caused.” Jackson
`Jordan, Inc. v. Leydig, Voit & Mayer, 633 N.E.2d 627, 630–31 (Ill. 1994); see also Steidinger v.
`Stryker Corp., No. 8:11-CV-01842 R(SSX), 2012 WL 13020148, at *4 (C.D. Cal. Apr. 19, 2012)
`(applying Illinois law).
`Both elements are met here, because Plaintiff knew of Decedent’s injury (NHL) in 2015 and
`reasonably should have made the alleged connection between his use of Roundup and his NHL.
`1.
`Plaintiff knew of Decedent’s injury in 2015, when he was diagnosed with NHL.
`A plaintiff is aware of an injury when formally diagnosed with the disease. See Solis v. BASF
`
`
`
`Corp., 979 N.E.2d 419, 431 (Ill. Ct. App. 2012). Here, Decedent’s doctors informed him of his NHL
`
`diagnosis in the summer of 2015. Compl. ¶ 125.
`
`2.
`
`Plaintiff developed a reasonable belief that Decedent’s NHL was wrongfully
`caused by exposure to Roundup in 2015.
`Under the discovery rule, “the limitations period begins to run from the date a person knows
`or reasonably should know of the injury and that it was wrongfully caused.” Edwards v. Regis Corp.,
`No. 10-1011, 2011 WL 777271, at *4 (C.D. Ill. Feb. 25, 2011). “The critical inquiry when applying
`the discovery rule is whether and when the plaintiff develops ‘a reasonable belief that the injury was
`caused by wrongful conduct, thereby creating an obligation to inquire further on that issue.’” Shrock
`v. Ungaretti & Harris Ltd., 143 N.E.3d 904, 911 (Ill. Ct. App. 2019), appeal denied, 140 N.E.3d 242
`(Ill. 2020) (quoting Dancor Intern., Ltd. v. Friedman, Goldberg & Mintz, 681 N.E.2d 617, 622 (Ill.
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`MOTION FOR SUMMARY JUDGMENT ON STATUTE OF LIMITATIONS AND
`PROXIMATE CAUSATION GROUNDS, 3:19-CV-01183
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`1997)). “[S]ignificantly, it does not matter whether the plaintiff knows or suspects who the wrongdoer
`actually is.” Id. “Knowledge that an injury has been wrongfully caused ‘does not mean knowledge
`of a specific defendant’s negligent conduct or knowledge of the existence of a cause of action.’”
`Janousek v. Katten Muchin Rosenman LLP, 44 N.E.3d 501, 505 (Ill. App. 1st Dist. 2015) (quoting
`Castello v. Kalis, 816 N.E.2d 782, 789 (Ill. App. 1st Dist. 2004)).
`Plaintiff had a reasonable belief that Decedent’s NHL was allegedly caused by Roundup in
`2015 when she saw an attorney advertisement, which included a “warning” about Roundup and NHL.
`Marshall Decl. Ex. 1, Pl.’s Dep. at 29:9-30:13, 216:10-18. Plaintiff and Decedent took this “warning”
`so seriously that they advised their children to not use Roundup. Id. at 29:14-22, 215:23-216:9.
`Thus, as of 2015, Plaintiff and Decedent knew of Decedent’s injury and had a reasonable
`belief that it was caused by exposure to Roundup, therefore triggering the two-year limitations period.
`Plaintiff, however, did not file her action until 2019, long after the limitations period for personal
`injury and product liability claims had expired. Therefore, Plaintiff’s negligence and strict product
`liability claims (Counts I-III) should be dismissed as time barred.
`The wrongful death claim is also time-barred. Under Illinois law, wrongful death claims must
`be brought within two years of the decedent’s death. 740 ILCS 180/2. While the discovery rule
`applies to wrongful death claims, such claims must be brought within two years after the
`representative of the estate knows or reasonably should know that an injury has occurred and that it
`was wrongfully caused. Eisenmann v. Cantor Bros., 567 F. Supp. 1347, 1355 (N.D. Ill. 1983).
`Here, Plaintiff’s wrongful death claim is time barred because she testified that she knew of
`the alleged connection between Decedent’s NHL and Roundup in 2015. As discussed above, Plaintiff
`and Decedent saw a television advertisement in 2015 that “warned” about Roundup and NHL.
`Marshall Decl. Ex. 1, Pl.’s Dep. at 29:14-22, 215:23-216:9. Thus, the two-year limitations period
`began to run at the time of Decedent’s death in 2015. However, Plaintiff filed her wrongful death
`claim in 2019. Therefore, the wrongful death claim is time barred.
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`PROXIMATE CAUSATION GROUNDS, 3:19-CV-01183
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`B.
`
`Plaintiff’s Warranty Claim Is Barred by the Applicable Four-Year Statute of
`Limitations.
`Plaintiff’s claim on behalf of Decedent for breach of implied warranty (Count IV) is subject
`to a four-year statute of limitations. See 810 ILCS 5/2–725; Berry v. G. D. Searle & Co., 309 N.E.2d
`550, 554 (Ill. 1974) (implied warranty). “A cause of action accrues when the breach occurs,
`regardless of the aggrieved party’s lack of knowledge of the breach,” and “[a] breach of warranty
`occurs when tender of delivery is made.” 810 ILCS 5/2–725(2). “Illinois courts have strictly
`construed this provision in just this manner.” Hagen v. Richardson-Merrell, Inc., 697 F. Supp. 334,
`341 (N.D. Ill. 1988) (collecting cases). And “[t]he language of the statute, as interpreted by the courts
`of [Illinois], clearly proscribes the application of the discovery rule in breach of warranty cases.”
`Nelligan v. Tom Chaney Motors, Inc., 479 N.E.2d 439, 442 (Ill. App. 2d Dist. 1985).
`Decedent last used Roundup in approximately 2013. Marshall Decl. Ex. 1, Pl.’s Dep. at 93:21-
`94:3. Thus, the warranty claims are barred because more than five years have passed from the date
`of the last purchase (which could have occurred no later than 2013) and the date the complaint was
`filed (2019).
`C. Monsanto Is Entitled to Summary Judgment on Plaintiff’s Failure-to Warn
`Claims Because Decedent Did Not Read the Roundup Warning Label.
`The failure to warn claims also fail because Decedent did not read the warning label. “[A]
`plaintiff who does not read an allegedly inadequate warning cannot maintain a product liability action
`premised on a failure-to-warn theory, unless the nature of the alleged inadequacy is such that it
`prevents him from reading it.” Solis v. BASF Corp., 979 N.E.2d 419, 439 (Ill. App. Ct. 2012) (citing
`Kane v. R.D. Werner Co., 275 Ill.App.3d 1035, 657 N.E.2d 37 (1995)). If a plaintiff does not read
`the label, then that plaintiff cannot show that an inadequate label is the proximate cause of his injuries.
`Id. (citing Kane, 275 Ill.App.3d at 1035) (explaining “that even if the warning were adequate, the
`plaintiff would have been in no better position, and thus the failure to warn did not cause any injury
`to him.”).
`Like the plaintiffs in Solis and Kane, there is no evidence that Decedent ever read the Roundup
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`MOTION FOR SUMMARY JUDGMENT ON STATUTE OF LIMITATIONS AND
`PROXIMATE CAUSATION GROUNDS, 3:19-CV-01183
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`Case 3:16-md-02741-VC Document 12783 Filed 03/18/21 Page 8 of 9
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`label. Plaintiff testified that she never saw Decedent read the Roundup label nor did she recall him
`telling her he read the Roundup label. Marshall Decl. Ex. 1, Pl.’s. Dep. at 209:19-24. Therefore,
`Decedent’s failure to warn claims should be dismissed.
`CONCLUSION
`For the foregoing reasons, Monsanto is entitled to summary judgment on all Plaintiff’s claims.
`
`
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`MOTION FOR SUMMARY JUDGMENT ON STATUTE OF LIMITATIONS AND
`PROXIMATE CAUSATION GROUNDS, 3:19-CV-01183
`
`
`DATED: March 18, 2021
`
`
`
`
`
`Respectfully submitted,
`/s/ K. Lee Marshall
`K. Lee Marshall
`BRYAN CAVE LEIGHTON PAISNER LLP
`Three Embarcadero Center, 7th Floor
`San Francisco, California 94111
`Tel:
`415-675-3400
`Fax: 415-675-3434
`klmarshall@bclplaw.com
`
`Attorneys for Defendant Monsanto Company
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`Case 3:16-md-02741-VC Document 12783 Filed 03/18/21 Page 9 of 9
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`/s/ K. Lee Marshall
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`CERTIFICATE OF SERVICE
`I HEREBY CERTIFY that on this 18th day of March, 2021, a copy of the foregoing was filed
`with the Clerk of the Court through the CM/ECF system which sent notice of the filing to all appearing
`parties of record.
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