Case 3:16-md-02741-VC Document 12784 Filed 03/18/21 Page 1 of 13
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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
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`
`IN RE: ROUNDUP PRODUCTS
`LIABILITY LITIGATION
`
`
`
`
`
`
`
`
`
`Cervantes v. Monsanto Co., 3:19-cv-03015-VC
`Karman v. Monsanto Co., 3:19-cv-01183-VC
`Pecorelli v. Monsanto Co., 3:16-cv-06936-VC
`Peterson v. Monsanto Co., 3:18-cv-07271-VC
`Schafer v. Monsanto Co., 3:19-cv-02169
`
`
`
`MDL No. 2741
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`Case No.: 3:16-md-02741-VC
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`
`DEFENDANT MONSANTO
`COMPANY’S NOTICE OF
`MOTION AND MOTION TO
`EXCLUDE THE SPECIFIC
`CAUSATION TESTIMONY OF
`DR. DENNIS WEISENBURGER
`
`Hearing date: May 28, 2021
`Time:
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`Case 3:16-md-02741-VC Document 12784 Filed 03/18/21 Page 2 of 13
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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 to Exclude the Specific Causation Testimony of Dr. Dennis Weisenburger. Monsanto seeks
`an order excluding opinion of this witness under Federal Rule of Evidence 702 and Daubert v. Merrell
`Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
`
`DATED: March 18, 2021
`
`
`
`Respectfully submitted,
`/s/ Michael X. Imbroscio
`Michael X. Imbroscio (pro hac vice)
`(mimbroscio@cov.com)
`One City Center
`850 10th St. NW
`Washington, DC 20001
`Tel: 202-62-6000
`
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`INTRODUCTION
`As before, Dr. Dennis Weisenburger has presented differential “etiologies”1 to support his
`opinions that Roundup®-branded products (“Roundup”) caused five Plaintiffs’ NHL: Gerard
`Cervantes, Robert Karman, James Peterson, Michael Pecorelli, and John Schafer. All five Plaintiffs
`have disclosed Dr. Weisenburger as both a general and specific causation expert. For all the reasons
`Monsanto previously asserted—including his “ruling in” of Roundup based on flawed studies that do
`not apply to the specific subtypes these Plaintiffs have and his failure to account for the fact that the
`majority of NHL cases have no known cause—Dr. Weisenburger’s specific causation opinions are
`faulty, unreliable, and barred under Rule 702 and Daubert. Dr. Weisenburger’s opinions in Wave 2,
`however, are even more flawed than those this Court previously considered. Because it is inconsistent
`with his desired result in this case, Dr. Weisenburger ignores a known risk factor for NHL, welding,
`that his own research establishes has a far higher risk ratio than glyphosate per the studies on which
`he relies. At the same time, Dr. Weisenburger dismisses or ignores other possible causes with no
`analysis, even though one of the Plaintiffs previously asserted in court that this other exposure caused
`his NHL. And Dr. Weisenburger continues to opine, in violation of Pre-Trial Order 85 (“PTO 85”),
`that an individual’s risk of NHL doubles if they use Roundup for greater than two days per year or 10
`days in their lifetime.
`Accordingly, Monsanto hereby moves to exclude the specific causation opinions of Dr.
`Weisenburger on Rule 702 grounds and for summary judgment on causation grounds in the above-
`captioned cases.
`I.
`Dr. Weisenburger’s Testimony in the Wave 2 Cases Confirms that His Unreliable
`Opinions Should be Excluded.
`A.
`Dr. Weisenburger Ignored His Own Research and Failed to Follow His Own
`Stated Methodology.
`Dr. Weisenburger’s “always Roundup” approach to specific causation is best exemplified by
`
`
`1 As explained in Monsanto’s Motion to Exclude Drs. Boyd, Pinter-Brown, and Schiff, the
`“differential etiology” employed by Plaintiffs’ experts was invented solely for litigation, and is not
`used in medical practice. See Monsanto’s Motion to Exclude Testimony of Plaintiffs’ Experts Barry
`Boyd, Lauren Pinter-Brown, and Ron Schiff at 8-9.
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`his treatment of Plaintiff Gerard Cervantes’ increased risk of developing NHL due to his career as a
`welder.2 At first, Dr. Weisenburger testified that he did not factor Mr. Cervantes’ history of welding
`into his opinion, claiming at his deposition that he did not consider welding to be a risk factor for
`NHL. See Declaration of Michael Imbroscio (March 19, 2021) (“Imbroscio Decl.”), Ex. 1,
`Weisenburger (Cervantes) Dep. at 51:18-19 (“I don’t believe welding is a risk factor for non-Hodgkin
`lymphoma”); see also id. at 51:13-52:18, 83:6-84:1. While he initially denied having done any
`research on an association between welding and NHL,3 when shown a study that he had co-authored,
`Dr. Weisenburger agreed that it found statistically significant increased risks of NHL among
`welders. Id. at 79:19-81:15; Imbroscio Decl., Ex. 2, Zheng et al., Occupation and Risk of Non-
`Hodgkin’s Lymphoma and Chronic Lymphocytic Leukemia, 44 J. Occupational & Environmental
`Med. 469 (2002). In fact, Dr. Weisenburger’s study showed a higher risk of NHL associated with
`welding than the studies he purports to rely on showed for glyphosate. Imbroscio Decl., Ex. 1,
`Weisenburger (Cervantes) Dep. at 81:3-6 (“So you found in your study that welders had a 2.9-fold
`increased risk that was statistically significant for non-Hodgkin lymphomas; right? A. Yes.”)
`(emphasis added); see also id. at 81:10-15 (“And for diffuse large B-cell lymphoma like Mr.
`Cervantes had, you actually found a 3.4-fold increase risk for welders and solderers; right? A. Yes.”).
`And Dr. Weisenburger has previously claimed that he primarily relies on odds ratios from
`epidemiology studies to assess causation. See Imbroscio Decl., Ex. 3, Weisenburger (Evans) Dep. at
`38:2-39:8 (“Q. So other than looking at the epidemiology and the relevant risks or the odds ratios, is
`there any other test or method or procedure that you can use to identify or assess the degree to which
`any given risk factor contributed to a patient’s non-Hodgkin lymphoma? A. Well, not -- not that I
`could think of at the moment, no.”).
` The most profound signal of unreliability under a Rule 702 analysis is an expert’s failure to
`
`
`2 The Wave 2 Plaintiffs’ risk factors and exposure allegations are discussed in greater detail in
`Monsanto’s Motion to Exclude Testimony of Plaintiffs’ Experts Barry Boyd, Lauren Pinter-Brown,
`and Ron Schiff.
`3 In particular, he did not review the IARC analysis suggesting that welders face an increased risk of
`cancer or the underlying studies IARC reviewed. See Imbroscio Decl., Ex. 1, Weisenburger
`(Cervantes) Dep. at 82:23-83:5.
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`follow his own stated methodology, as Dr. Weisenburger failed to do here. In re Mirena Ius
`Levonorgestrel-Related Products Liability Litigation (No. II), 341 F.Supp.3d 213, 242 (S.D.N.Y.,
`2018) (“Where an expert ignores evidence that is highly relevant to his conclusion, contrary to his
`own stated methodology, exclusion of the expert's testimony is warranted.”). Dr. Weisenburger
`belatedly claimed at his deposition that he “obviously” ruled out welding as a contributing factor to
`Mr. Cervantes’ NHL, Imbroscio Decl., Ex. 1, Weisenburger (Cervantes) Dep. at 83:10-84:1, but this
`last-minute attempt to salvage his opinion cannot be reconciled with a reliable method in light of (1)
`his original (but incorrect) statement that he had “not done any research on that topic,” id. at 79:22,
`and (2) his own published article that contradicts such statement as well as his litigation-driven
`conclusions. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999) (an expert’s methodology
`must reflect “the same level of intellectual rigor that characterizes the practice of an expert in the
`relevant field.”). Dr. Weisenburger’s testimony confirms that, contrary to his own research, he had
`not even considered welding as a risk factor prior to his deposition, much less ruled it out as a potential
`cause. His testimony in Cervantes should be excluded on this basis alone, and is indicative of his
`unscientific, litigation-driven approach to specific causation more broadly.
`B.
`Dr. Weisenburger’s Testimony in All of the Wave 2 Cases Confirms that His
`Consideration of Alternative Causes Is Unscientific and Unreliable.
`Dr. Weisenburger has not seriously considered potential alternative causes in any of the Wave
`2 cases. This is not the same methodology the Court concluded “barely inched over the line” in its
`prior ruling regarding Dr. Weisenburger. See PTO 85 at 1. In that circumstance, the Court
`emphasized that Dr. Weisenburger’s “core opinion[]” was that “plaintiffs had no other significant risk
`factors and were exposed to enough glyphosate to conclude it was a substantial factor in causing their
`NHL.” Id. at 6. That has not been Dr. Weisenburger’s testimony in the Wave 2 cases. Instead, he
`brushes off any potential alternative causes without meaningful analysis, or in some cases without
`even sufficient information with which to conduct a scientific analysis. Such testimony is not
`consistent with the Court’s prior ruling and cannot survive Rule 702 scrutiny. Specific problems with
`Dr. Weisenburger’s failure to consider alternative causes are noted below.
`Dr. Weisenburger dismissed Gerard Cervantes’ occupational exposure to other chemicals
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`despite admitting that he had no scientific basis to do so. For example, Dr. Weisenburger testified
`that Mr. Cervantes’ exposures to PCB and Benzene were not contributing causes to his NHL despite
`admitting that he did not know, and had no evidence of, the amount of Mr. Cervantes’ exposure to
`these chemicals. See Imbroscio Decl., Ex. 1, Weisenburger (Cervantes) Dep. at 74:8-16 (“Do you
`know how much PCB exposure Mr. Cervantes had at the Nicor facility? A. No; but it’s likely it was
`very small because nothing was detected in these tests done by the company. Q. So in what detail
`did you discuss the tests that the company allegedly did related to PCBs at their facility? A. Well, I
`asked him what the company tested for and he didn’t really know.”) (emphasis added); see also id.
`at 61:18-62:13, 66:22-67:17, 74:17-76:12.4 Dr. Weisenburger further admitted that he did not know
`the degree to which Mr. Cervantes’ PCB and benzene exposure increased his risk of NHL, but
`conceded that, in his opinion, both substances could do so provided Mr. Cervantes had sufficient
`exposure. Id. at 65:17-20 (“So you agree that Mr. Cervantes’s exposures to benzene or PCBs could
`have contributed to his risk of non-Hodgkin lymphoma; is that right? A. Well, yes, if he’d had a
`significant exposure.”).5
`Dr. Weisenburger similarly did not consider whether methylene chloride could have caused
`Mr. Cervantes’ NHL, even though Mr. Cervantes himself alleged that his NHL was caused by a
`methylene chloride leak into his drinking water in a 2004 class action lawsuit. Id. at 71:18-73:3,
`76:13-77:11. Instead, Dr. Weisenburger admitted that while methylene chloride does increase the
`risk of NHL, he was not aware of—and thus did not consider—Mr. Cervantes’ exposure to it or his
`
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`4 While Monsanto’s position is that there is no association between PCBs and NHL, Dr. Schiff—also
`disclosed as an expert by Mr. Cervantes—has testified that PCBs are an “across the board” risk factor
`for NHL. See Imbroscio Decl., Ex. 4, Schiff (Cervantes) Dep. at 19:6-16. Dr. Weisenburger’s failure
`to meaningfully consider or investigate this exposure, particularly in light of Dr. Schiff’s opinions,
`only underscores that his “consideration” of alternative causes is a box-checking exercise to arrive at
`the pre-determined conclusion that Roundup was the cause.
`5 Further, Dr. Weisenburger’s claim that Mr. Cervantes’ exposure to benzene and PCBs was not
`“significant,” Imbroscio Decl., Ex. 1, Weisenburger (Cervantes) Dep. at 65:21, based on Mr.
`Cervantes’ employer’s monitoring of chemicals in accordance with OSHA standards, is belied by his
`admissions that: (1) he was not aware of the specific allowable exposures as defined by OSHA during
`Mr. Cervantes’ employment, id. at 62:14-63:11; (2) he did not know if occupational exposure to these
`chemicals at OSHA’s allowable levels increased Mr. Cervantes’ risk of NHL, id. at 62:19-63:16; and
`(3) he had not reviewed any literature regarding benzene or PCBs in forming his opinions in this case,
`id. at 65:8-13, 70:25-71:17.
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`levels of exposure. Id. at 76:22-77:3 (“Q. Okay. Do you know if methylene chloride increases the
`risk of non-Hodgkin lymphoma? A. I believe it does. Q. And were you aware that Mr. Cervantes
`claimed that he was exposed to methylene chloride in contaminated drinking water at Nicor Gas
`Company? A. I wasn’t aware of that, no.”).
`Dr. Weisenburger further acknowledged that Mr. Cervantes’ family history of cancer,
`including that his mother died of NHL, was a substantial risk factor for developing NHL. Id. at 27:15-
`22, 32:6-13. In fact, Dr. Weisenburger ultimately concluded that both Roundup and Mr. Cervantes’
`family history were substantial contributing factors to Plaintiff’s NHL. Id. at 26:20-27:14. But Dr.
`Weisenburger admitted that he has no data to support that conclusion, instead claiming that his
`opinion that both Roundup and Mr. Cervantes’ family history (as opposed to family history alone)
`were substantial causes was “just common sense.” Id. at 29:8-20 (“. . . They don’t exclude each other;
`they’re additive. Q. Well, how do you know they’re additive? A. Well, it’s just common sense . . .
`Q. Are there any studies showing that? A. Not that I know of. It’s -- you know, I think it -- it’s
`accepted epidemiologic principle. Q. Can you cite anything for that epidemiologic principle? A.
`Not off the top of my head.”) (emphasis added). Dr. Weisenburger likewise admitted that Mr.
`Cervantes’ weight was a potential alternative cause, but brushed this aside as a “minor” risk factor
`despite admitting that he had no specific support for that conclusion either. Id. at 40:7-41:14. Indeed,
`Dr. Weisenburger admitted that Mr. Cervantes could have developed NHL solely due to his family
`history or weight without Roundup playing any role whatsoever. Id. at 43:4-22. His conclusion that
`Roundup was a substantial contributing factor in combination with Mr. Cervantes’ family history is
`simply Dr. Weisenburger’s ipse dixit. Id. (“[I]s there any scientifically validated way that you could
`show that those independent risk factors didn’t act alone, as opposed to in combination with Roundup
`exposure? A. No. It’s my -- it’s opinion, based on my medical and scientific training.”); see also
`Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (“[N]othing in either Daubert or the Federal Rules
`of Evidence requires a district court to admit opinion evidence that is connected to existing data only
`by the ipse dixit of the expert.”).
`With respect to Robert Karman, Dr. Weisenburger testified that he did not consider Mr.
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`Karman’s 30-year smoking history to be a risk factor, Imbroscio Decl., Ex. 5, Weisenburger (Karman)
`Dep. at 83:1-9, even though Dr. Schiff, the other specific causation expert disclosed for Mr. Karman,
`opined that smoking is a risk factor for NHL, see, e.g., Imbroscio Decl., Ex. 6, Schiff (Karman) Dep.
`at 111:23-112:5. Dr. Weisenburger also did not consider Mr. Karman’s exposure to Spectracide6 on
`the grounds that it was too infrequent to warrant analysis, despite admitting that (1) he did not know
`what the chemical composition of Spectracide was, Imbroscio Decl., Ex. 5, Weisenburger (Karman)
`Dep. at 29:12-14, and (2) he just assumed Mr. Karman’s exposure was less than 10 lifetime days, id.
`at 30:3-14. This exchange represents a recurring theme in Dr. Weisenburger’s testimony: for facts
`that help his opinions, he uncritically accepts them regardless of their basis; for facts that undermine
`his opinion, he requires the most rigorous of empirical support or else dismisses them. Dr.
`Weisenburger’s approach makes a mockery of the Rule 702 standards.
`Dr. Weisenburger further conceded that Mr. Karman’s age, gender, and race were all
`recognized as risk factors, yet summarily decided that none of them were causal in this case. Id. at
`84:8-17, 85:11-23. When asked how anyone would know if he was wrong about Roundup being a
`substantial factor in Mr. Karman’s NHL, Dr. Weisenburger replied “I don't know how you would
`know.” Id. at 91:11-12.
`With respect to James Peterson, who had risk factors for NHL including weight and age (73
`at the time of his diagnosis), Dr. Weisenburger similarly failed to explain how he concluded that
`Roundup, and not one of these other risk factors, caused Mr. Peterson’s NHL. Imbroscio Decl., Ex.
`7, Weisenburger (Peterson) Dep. at 69:24-70:2, 74:18-24. And as with Mr. Karman, Dr.
`Weisenburger testified that Mr. Peterson’s 40-year smoking history did not increase his risk for NHL.
`Id. at 46:9-17. He also dismissed without any analysis (1) Mr. Peterson’s exposure to Weed-B-Gon,7
`
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`6 Monsanto does not take the position that Spectracide can cause NHL, but given that Dr.
`Weisenburger purports to investigate Plaintiffs’ exposures to other chemicals as part of his
`methodology, see, e.g., Imbroscio Decl., Ex. 8, Weisenburger (Schafer) Dep. at 53:10-18, Dr.
`Weisenburger’s failure to even consider Mr. Karman’s exposure to Spectracide or investigate its
`chemical composition shows that his opinions are unscientific and unreliable.
`7 Monsanto does not take the position that Weed-B-Gon can cause NHL, but as was the case with
`Spectracide, Dr. Weisenburger’s failure to even consider this exposure without any analysis in light
`of his other opinions demonstrates that his causation analysis is unscientific and litigation-driven.
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`despite conceding that the active ingredient in that product had been linked to NHL by some studies,
`id. at 33:19-34:9, 43:19-24, 44:25-45:7, and (2) Mr. Peterson’s exposure to chemicals used to develop
`his own film, id. at 31:17-22, 32:18-21, 32:22-33:4.
`With respect to Michael Pecorelli, Dr. Weisenburger returned to his approach of inconsistent
`treatment of similarly-situated risk factors: he discounted Mr. Pecorelli’s exposure to other chemicals,
`including Sevin, 2,4-D, Treflan and Surflan, solely on the basis of Mr. Pecorelli’s son’s testimony
`that Mr. Pecorelli’s exposure to these chemicals was “rare.” Imbroscio Decl., Ex. 9, Weisenburger
`(Pecorelli) Dep. at 95:19-97:9. He admitted that he did not have any precise information on the
`quantities of these chemicals to which Mr. Pecorelli was actually exposed. Id. at 99:5-12. But Dr.
`Weisenburger’s treatment of these potential exposures as unimportant contrasts dramatically with his
`uncritical acceptance that exposure to glyphosate of more than only 2 days per year doubles an
`individual’s risk of developing NHL. See infra at 8. And Dr. Pinter-Brown, the other specific
`causation expert in Mr. Pecorelli’s case, testified that she did consider these exposures to be a
`potential risk factor. See Imbroscio Decl., Ex. 10, Pinter-Brown (Pecorelli) Dep. at 87:15-24. As
`with Mr. Peterson and Mr. Karman, Dr. Weisenburger also testified that Mr. Pecorelli’s 70-year
`smoking history was not a risk factor, in contradiction to Plaintiffs’ other experts. Imbroscio Decl.,
`Ex. 9, Weisenburger (Pecorelli) Dep. at 65:18-66:4.
`Finally, with respect to John Schafer, Dr. Weisenburger acknowledged a study reporting a
`threefold increased risk in NHL from Hashimoto’s thyroiditis, which Mr. Schafer has. Imbroscio
`Decl., Ex. 11, Weisenburger (Schafer) Dep. at 97:3-9. Dr. Weisenburger claimed that Hashimoto’s
`only increases risk for thyroid cancers, but admitted that he did not know how many cases of NHL in
`the study were outside the thyroid. Id. at 97:21-98:4. Dr. Weisenburger also acknowledged that Mr.
`Schafer’s weight was a contributing factor to his NHL, finding it increased his risk for NHL by “about
`[. . .] 27 percent,” but characterized this nearly one-third increase in risk as “minor.” Id. at 90:24-
`91:10.
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`II.
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`Dr. Weisenburger’s Testimony Violates the Court’s Prior Ruling, and Monsanto
`Preserves Its Arguments that Dr. Weisenburger’s Specific Causation Opinions are
`Unreliable and Should be Excluded.
`Dr. Weisenburger continues to opine across the Wave 2 cases, in clear violation of PTO 85,
`that an individual’s risk of NHL doubles if they use Roundup for greater than two days per year or 10
`days in their lifetime. See, e.g., Imbroscio Decl., Ex. 12, Weisenburger (Pecorelli) Report at 3 (“This
`would place [Mr. Peterson] in the high-risk category for the development of NHL (> 10 days of use,
`or > 2 days/year) with an approximately two-fold increased risk of NHL (1,2).”) (emphasis added);
`Imbroscio Decl., Ex. 7, Weisenburger (Peterson) Dep. at 60:24-61:6. The Court has already excluded
`such testimony as unsupported and unreliable, and should do so again here. See PTO 85 at 8 (“Nor
`may Dr. Weisenburger testify that [plaintiff’s] risk of developing NHL more than doubled because
`he used Roundup far more than the threshold of ten lifetime days set by the Eriksson and McDuffie
`Studies. Even putting aside the problems with unadjusted data, those studies simply do not support
`Dr. Weisenburger’s assertion.”).
`Monsanto also preserves its prior arguments that Dr. Weisenburger’s testimony is unreliable
`and should be excluded. Consistent with the Court’s instructions not to re-litigate issues previously
`ruled upon by the Court, but in order to fully preserve the appellate record, Monsanto hereby
`incorporates the following pleadings that were filed on the MDL docket related to Dr. Weisenburger:
`• Monsanto Company’s Motion to Exclude Testimony of Chadi Nabhan, Andrei Shustov,
`and Dennis Weisenburger on Daubert Grounds (ECF No. 2420)
`• Monsanto’s Reply in Support of Monsanto’s Motion to Exclude Testimony of Chadi
`Nabhan, Andrei Shustov, and Dennis Weisenburger on Daubert Grounds (ECF No.
`2525)
`• The transcript of the February 13, 2019, hearing (ECF No. 2763);
`• Monsanto Company’s Motion for Directed Verdict (ECF No. 2975);
`• Monsanto Company’s Motion for Judgment as a Matter of Law and for a New Trial (ECF
`No. 3976);
`• Monsanto Company’s Reply in Support of Motion for Judgment as a Matter of Law and
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`for a New Trial (ECF No. 4301).
`Monsanto also incorporates the most recent science on glyphosate, including the scientific
`literature published since the above pleadings were submitted to the Court, attached to Monsanto’s
`Motion to Exclude Plaintiffs’ General Causation Experts (“General Causation Motion”) as Exhibits
`2-4, and the United States Environmental Protection Agency’s Interim Registration Decision on
`glyphosate, attached to Monsanto’s General Causation Motion as Exhibit 5.8
`Finally, as Monsanto has noted in prior motions, see, e.g., ECF. No. 2420, Dr. Weisenburger’s
`testimony in the Wave 2 cases illustrates his continued failure to address idiopathy, even though he
`admits that the cause of most cases of NHL is unknown. In fact, his testimony confirmed that, for
`any Plaintiff that has been exposed to Roundup for more than two days per year or ten days in their
`lifetime, he ignores the possibility of an unknown cause altogether in favor of concluding that
`Roundup is always the cause. See, e.g., Imbroscio Decl., Ex. 9, Weisenburger (Pecorelli) Dep. at
`60:11-61:9 (when asked if he could state to a reasonable degree of medical certainty that Mr. Pecorelli
`would not have developed NHL if he had never used Roundup, Dr. Weisenburger responded that “it’s
`more likely than not that it was glyphosate that was the cause of his non-Hodgkin’s lymphoma, rather
`than attributing it to some unknown -- some unknown exposure -- or some idiopathic - you know,
`giving it -- giving it an idiopathic designation to his cancer. In medicine, we don’t do that.”); see also
`Imbroscio Decl., Ex. 8, Weisenburger (Schafer) Dep. at 27:13-17; Imbroscio Decl., Ex. 1,
`Weisenburger (Cervantes) Dep. at 37:19-23.
`*
`*
`*
`Taken as a whole, Dr. Weisenburger’s testimony in the Wave 2 cases confirms that he will
`always conclude that Roundup was a substantial cause of any plaintiff’s NHL, as long as they used
`Roundup for more than 2 days per year or more than 10 days in their lifetime. He does not seriously
`consider whether any plaintiff’s NHL could be idiopathic or could have been caused by other risk
`factors or other exposures. His treatment of potential alternative causes is thoroughly unscientific,
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`8 By incorporating by reference its prior filings, Monsanto is in no way waiving any of the arguments
`raised therein.
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`unreliable, and conflicts with his own work outside of this litigation. For the reasons stated above,
`the Court should exclude the specific causation opinions of Dr. Weisenburger for all five Plaintiffs
`and grant summary judgment in Monsanto’s favor because Plaintiffs have failed to establish the
`necessary element of specific causation using expert testimony, as required by Illinois and North
`Carolina law.9
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`Dated: March 18, 2021
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`By:
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`/s/ Michael X. Imbroscio
`Michael X. Imbroscio (pro hac vice)
`(mimbroscio@cov.com)
`One City Center
`850 10th St. NW
`Washington, DC 20001
`Tel: 202-662-60000
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`Attorney for Defendant Monsanto Company
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`9 As explained in Monsanto’s Motion to Exclude the Testimony of Drs. Boyd, Pinter-Brown, and
`Schiff, Plaintiffs’ remaining specific causation experts’ opinions similarly do not survive Rule 702
`scrutiny.
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`Case 3:16-md-02741-VC Document 12784 Filed 03/18/21 Page 13 of 13
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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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`/s/ Michael X. Imbroscio
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