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`Case 3:16-md-02741-VC Document 12789 Filed 03/19/21 Page 1 of 26
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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
`Rehak v. Monsanto Co., 3:19-cv-01719-VC
`Schafer v. Monsanto Co., 3:19-cv-02169
`Seidl v. Monsanto Co., 3:17-cv-00519-VC
`
`
`MDL No. 2741
`
`Case No.: 3:16-md-02741-VC
`
`
`DEFENDANT MONSANTO
`COMPANY’S NOTICE OF
`MOTION AND MOTION TO
`EXCLUDE TESTIMONY OF
`PLAINTIFFS’ EXPERTS BARRY
`BOYD, LAUREN PINTER-
`BROWN, AND RON SCHIFF ON
`RULE 702 GROUNDS
`
`Hearing date: May 28, 2021
`Time:
`
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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 Testimony of Barry Boyd, Lauren Pinter-Brown, and Ron Schiff. 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 19, 2021
`
`
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`Respectfully submitted,
`/s/ Michael X. Imbroscio
`Michael X. Imbroscio (pro hac vice)
`(mimbroscio@cov.com)
`Covington & Burling LLP
`One City Center
`850 10th St. NW
`Washington, DC 20001
`Tel: 202-62-6000
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`II.
`III.
`
`II.
`
`B.
`
`C.
`
`III.
`
`TABLE OF CONTENTS
`
`INTRODUCTION ............................................................................................................................... 1
`BACKGROUND ................................................................................................................................. 2
`Wave Two Plaintiffs Have Disclosed a Handful of Specific Causation Experts for
`I.
`Whom the Court Has Not Previously Ruled. ........................................................................... 2
`The Wave Two Plaintiffs All Had Risk Factors Associated with NHL. ................................. 3
`Plaintiffs’ Experts All Purport to Use a Differential “Etiology” in Forming Their
`Specific Causation Opinions. ................................................................................................... 6
`LEGAL STANDARD .......................................................................................................................... 7
`ARGUMENT ....................................................................................................................................... 8
`Dr. Schiff’s Testimony Reveals That the Experts’ “Differential Etiology”
`I.
`Methodology Is Results Driven and Made for Litigation. ....................................................... 8
`Plaintiffs’ Experts Failed to Properly Assess Potential Alternative Causes of
`Plaintiffs’ NHL. ....................................................................................................................... 9
`Dr. Schiff Admits He Cannot Rule Out or Weigh Risk Factors, and
`A.
`Always Concludes Roundup was a Substantial Cause. ............................................. 10
`Dr. Pinter-Brown Likewise Automatically Includes Roundup as a
`Substantial Cause and Does Not Weigh or Eliminate Other Risk Factors. ............... 15
`Dr. Boyd Also Does Not Meaningfully Consider Alternative Causes, and
`His Testimony Regarding His Methodology Conflicts with Dr. Schiff’s. ................. 17
`Plaintiffs’ Experts Have Not Reliably Ruled Out Unknown Causes of Plaintiffs
`NHL and Instead Always Point to Roundup. ......................................................................... 18
`IV. Monsanto Preserves Its Arguments That Plaintiffs’ Experts Ruled in Roundup as
`a Cause of Each Plaintiff’s NHL Based on Inadequate and Flawed Studies. ........................ 19
`CONCLUSION .................................................................................................................................. 20
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`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases
`
`In re Aredia & Zometa Prod. Liab. Litig.,
`483 F. App’x 182 (6th Cir. 2012) .................................................................................................. 7
`
`Claar v. Burlington N. R.R. Co.,
`29 F.3d 499 (9th Cir. 1994) .......................................................................................................... 10
`
`Clausen v. M/V New Carissa,
`339 F.3d 1049 (9th Cir. 2003) .............................................................................................. 6, 9, 10
`
`Daubert v. Merrell Dow Pharm., Inc.,
`509 U.S. 579, 589 (1993) ................................................................................................... 7, 12, 20
`
`Hayes v. Tractor Supply Co.,
`170 N.C. App. 405, 612 S.E.2d 399 (2005) ................................................................................... 8
`
`In re Lipitor (Atorvastatin Calcium) Mktg., Sales Practices & Prod. Liab. Litig.,
`892 F.3d 624 (4th Cir. 2018) .................................................................................................... 8, 17
`
`In re Mirena Ius Levonorgestrel-Related Products Liability Litigation (No. II),
`341 F.Supp.3d 213, 241 (S.D.N.Y., 2018) ................................................................................... 13
`
`Poust v. Huntleigh Healthcare,
`998 F. Supp. 478 (D.N.J. 1998) ..................................................................................................... 8
`
`In re Roundup Prods. Liab. Litig.,
`358 F. Supp. 3d 956, 957 (N.D. Cal. 2019) ............................................................................. 8, 18
`
`Solis v. BASF Corp.,
`979 N.E.2d 419, 365 Ill.Dec. 815 (Ill. App. 1 Dist., 2012) ............................................................ 8
`
`Wehmeier v. UNR Indus., Inc.,
`213 Ill. App. 3d 6, 572 N.E.2d 320 (1991) .................................................................................... 8
`
`Westberry v. Gislaved Gummi AB,
`178 F.3d 257 (4th Cir. 1999) .................................................................................................... 6, 10
`
`Yates v. Ford Motor Co.,
`No. 5:12-CV-752-FL, 2015 WL 3463559 (E.D.N.C. May 30, 2015) ........................................... 8
`
`Other Authorities
`
`Federal Rule of Evidence 702 ..................................................................................................... passim
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`INTRODUCTION
`The Wave 2 Plaintiffs have designated an array of new specific causation experts that do not
`meet the standards of Rule 702 this Court imposed in Pre-Trial Order 85 (“PTO 85”). While
`purporting to rely on the same differential etiology/diagnosis methodology the Court previously
`permitted, these experts in fact fall woefully short of the first round of experts, which this Court
`bluntly described to have “barely inched over the line” in opining that Roundup®-branded products
`(“Roundup”) specifically caused the plaintiffs’ non-Hodgkin’s lymphoma (NHL). In striking
`manner, each of these new experts is nakedly outcome-driven. To be sure, they continue to “rule in”
`Roundup based on the same flawed studies the general causation experts rely on without accounting
`for the Plaintiffs’ specific NHL sub-types. But even setting that deficiency aside, they do their real
`methodological violence in their consideration of other potential risk factors. In their unwavering
`adherence to their conclusion that Roundup is always to blame, they offer no coherent, defensible
`principle undergirding their specific causation opinions, ultimately acknowledging that they cannot
`rule out many significant risk factors and instead simply professing no obligation to do so.
`The mere invocation of the phrase “differential etiology” or “differential diagnosis” cannot
`sanitize what is otherwise an outcome-driven conclusion devoid of any reliable scientific basis. These
`experts repeatedly failed to reliably account for known risk factors for NHL that other plaintiffs’
`experts admit are well-accepted risk factors, and they at the same time casually ignore the potential
`that unknown factors, which account for most NHL cases, might explain the plaintiff’s NHL.
`And unlike the experts the Court previously addressed, these experts fully admit they have no
`reliable scientific method to weigh causes against one another—the very subject on which their
`testimony will purportedly assist a jury under Rule 702. The bottom line for these witnesses is that
`Roundup will always be the cause of every plaintiff’s NHL as long as the plaintiff was exposed to
`some amount of Roundup at some point in their life—regardless of the plaintiff’s individual medical
`history and risk factors, regardless of the fact that the cause of NHL cannot be determined in the vast
`majority of cases, and regardless of when or how much a plaintiff allegedly used Roundup. That is
`not science—that is courtroom advocacy in a lab coat. This Court has previously described the
`“daunting challenge” of establishing specific causation in these cases. These new experts do not meet
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`I.
`
`that challenge, and the Court should exclude them.
`BACKGROUND
`Wave Two Plaintiffs Have Disclosed a Handful of Specific Causation Experts for
`Whom the Court Has Not Previously Ruled.
`On June 14, 2019, this Court scheduled two waves of cases, grouped by governing state law,
`to be prepared for transfer back to their home districts. The second wave consists of cases filed in
`Illinois and North Carolina. The Wave Two Plaintiffs have disclosed the following new specific
`causation experts, all of whom, like the specific causation experts disclosed in the bellwether trials,
`purport to use a differential diagnosis (or differential “etiology”) in reaching their conclusion that
`Roundup caused each individual Plaintiff’s specific subtype of NHL.1
`• Dr. Barry Boyd is an oncologist, see Declaration of Michael Imbroscio (March 19, 2021)
`(“Imbroscio Decl.”), Ex. 1, Boyd (Seidl) Dep. at 10:19-20, who has been disclosed in multiple
`Roundup cases across the country. In clinical practice, Dr. Boyd has never told any patient that
`Roundup caused his or her cancer. Id. at 37:13-20. For Wave Two of the MDL, Dr. Boyd has
`been disclosed by Randall Seidl.
`• Dr. Lauren Pinter-Brown is an oncologist and internist. Imbroscio Decl., Ex. 2, Pinter-Brown
`Peterson Report at 1. She has never conducted any scientific research regarding pesticides of any
`kind, including glyphosate. See Imbroscio Decl., Ex. 3, Pinter-Brown (Peterson) Dep. at 81:7-
`23. Prior to being retained by Plaintiffs’ counsel, Dr. Pinter-Brown had not reviewed any of the
`literature on which she now relies, and she has found Roundup to be a substantial contributing
`factor to the plaintiff’s NHL in every case in which she has been retained as a paid expert. Id. at
`28:23-29:2. Dr. Pinter-Brown has been disclosed by numerous Plaintiffs in this litigation,
`including, in Wave Two, James Peterson and Michael Pecorelli.
`• Dr. Ron Schiff is an oncologist who left clinical practice in 2015 and has not published anything
`in the peer-reviewed literature since 1990. Imbroscio Decl., Ex. 4, Schiff (Schafer) Dep. at 11:14-
`
`
`1 As in Wave 1, consistent with the Court’s prior guidance, see Imbroscio Decl., Ex. 24, Transcript
`of January 4, 2019 Case Management Conference at 9-10, for ease of review and efficiency Monsanto
`is filing a single brief to address these multiple Plaintiffs and the three new specific causation experts
`Plaintiffs have named in Wave 2.
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`21. In his clinical practice, Dr. Schiff never told any patient that his or her lymphoma was caused
`by Roundup. Imbroscio Decl., Ex. 5, Schiff (Harris) Dep. at 92:8-93:4. Since leaving the practice
`of medicine, his sole source of earned income has been working as an expert witness. Imbroscio
`Decl., Ex. 6, Schiff Rehak Dep. at 109:18-22. Dr. Schiff has never ruled out Roundup as the cause
`of a plaintiff’s disease in any case that Plaintiffs’ lawyers have asked him to review. Imbroscio
`Decl., Ex. 4, Schiff (Schafer) Dep. at 29:12-17. And he has never seen a plaintiff that he did not
`characterize as having “extensive” exposure to Roundup. Imbroscio Decl., Ex. 7. Schiff
`(Cervantes) Dep. at 126:7-16. Dr. Schiff has been disclosed by Gerard Cervantes, Robert
`Karman, Lorraine Rehak, and John Schafer.
`II.
`The Wave Two Plaintiffs All Had Risk Factors Associated with NHL.
`As set forth at length in Monsanto’s prior motion to exclude specific causation experts, (MDL
`
`ECF No. 2420), “non-Hodgkin’s lymphoma” is an umbrella term used to describe more than sixty
`different sub-types of cancer involving the lymphocytes, a type of white blood cell. The various sub-
`types have different clinical and prognostic characteristics and may also have different risk factors
`and causes. However, in the vast majority of all NHL cases, the cause is unknown. The relevant
`medical history, NHL diagnosis, and alleged Roundup exposure for each of the seven Wave 2
`Plaintiffs is summarized below.
`• Gerard Cervantes, a resident of Sugar Grove, Illinois, was diagnosed with diffuse large B-cell
`non-Hodgkin’s lymphoma (“DLBCL”) in October 2004. See Imbroscio Decl., Ex. 8, Cervantes
`Plaintiff Fact Sheet at 4; Imbroscio Decl., Ex. 9, Cervantes Dep. at 59:2-6, 165:18-20. Mr.
`Cervantes occasionally used Roundup residentially, but alleges his primary exposure occurred in
`the course of operating his lawn care business, which he started in 1998. Imbroscio Decl., Ex. 9,
`Cervantes Dep. at 61:13-16, 71:14-17, 103:1-13. Mr. Cervantes has a family history of cancer,
`and his mother developed and died from NHL. Id. at 165:1-6. He also has a history of obesity,
`and was exposed to asbestos, polychlorobiphenyl (“PCB”), and benzene over the course of
`approximately 30 years while working as a welder and in other related roles for Nicor Gas
`Company. Id. at 40:4-44:14. Mr. Cervantes did not wear any personal protective equipment
`during his exposures to these substances. Id. at 47:1-7, 48:3-13, 49:13-19. He also has a history
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`of occupational exposure to gasoline, diesel, and welding rod fumes. Id. at 51:5-16, 73:13-17,
`170:15-171:12. In 2004, Mr. Cervantes claimed that his NHL was caused by exposure to
`methylene chloride in his drinking water as part of a class action lawsuit. Id. at 12:20-14:2. In
`this lawsuit, he now claims his NHL was caused by exposure to Roundup.
`• Robert Karman, a former resident of Elgin, Illinois, was diagnosed with DLBCL in July 2015,
`and passed away in December 2015. Imbroscio Decl., Ex. 10, Karman Dep. at 112:5-16, 233:5-
`19, 254:9-24. He was 77 at the time of his diagnosis and death. Imbroscio Decl., Ex. 11, Schiff
`(Karman) Dep. at 102:22-103:2. Mr. Karman’s Roundup use was exclusively residential.
`Imbroscio Decl., Ex. 10, Karman Dep. at 264:14-265:14. Mr. Karman’s wife never saw him get
`Roundup on his hands or body while using it, and testified that Mr. Karman never mentioned
`getting Roundup on his body while using it. Id. at 144:5-13, 192:20-193:1, 200:24-201:10. Mr.
`Karman had several risk factors for NHL, including advanced age and an approximately 50-year
`smoking history. Id. at 223:6-15.2
`• Michael Pecorelli, a former resident of Elk Grove, Illinois, was diagnosed with splenic marginal
`zone lymphoma in July 2004, at the age of 75. Imbroscio Decl., Ex. 12, Pecorelli Dep. at 280:21-
`288:3. In 2011, Mr. Pecorelli also developed an unrelated cancer in his lung called a sarcoma or
`malignant fibrous histiocytoma (MFH). Imbroscio Decl., Ex. 13, Pinter-Brown (Pecorelli) Report
`at 4-5; Imbroscio Decl., Ex. 14, Pinter-Brown (Pecorelli) Dep. at 22:21-23:5. Mr. Pecorelli
`passed away in January 2021, at the age of 82. Imbroscio Decl., Ex. 12, Pecorelli Dep. at 98:17-
`99:7. Mr. Pecorelli’s sole cause of death was listed as MFH.3 Mr. Pecorelli was an almost 70
`year-long, 1 pack-per-day smoker, starting at the age of 12. Id. at 301:6-19. In addition to Mr.
`
`
`2 There are several inaccuracies on Mr. Karman’s Plaintiff Fact Sheet in this case, including stating
`that: (1) Mr. Karman did not smoke; (2) Mr. Karman had Lupus and other diseases that he did not
`have; (3) he was exposed to Roundup starting in “1980” in Elgin, Illinois, but Mr. Karman’s wife
`testified that they did not live in Elgin until 1991/1992; and (4) Mr. Karman used “Roundup powder,”
`but Mr. Karman’s wife testified he only used the ready-mix liquid in the same one gallon container.
`At her deposition, Mr. Karman’s wife confirmed that her testimony was accurate and the PFS was
`not. Imbroscio Decl., Ex. 10, Karman Dep. at 289:1-297:2.
`3 As explained in Monsanto’s Motion for Summary Judgment on Statute of Limitations and Proximate
`Causation Grounds, Monsanto is entitled to summary judgment on Plaintiff’s wrongful death claim
`in the Pecorelli case because the undisputed facts establish that Mr. Pecorelli died as a result of his
`MFH, and Plaintiff has introduced no admissible evidence to the contrary.
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`Pecorelli’s age and extensive smoking history, Mr. Pecorelli’s son testified that Mr. Pecorelli was
`exposed to other pesticides in the course of operating his landscaping business. Id. at 89:2-90:15,
`101:20-103:4, 259:11-261:16.
`• James Peterson, a resident of Hoffman Estates, Illinois, was diagnosed with DLBCL in
`February 2017 at age 73. Imbroscio Decl., Ex. 15, Second Amended Peterson Fact Sheet at 16.
`In addition to his age and weight, Mr. Peterson was potentially exposed to a number of different
`carcinogens throughout his life, including photographic development chemicals in the 1970’s
`and 80’s, and occupational exposure to gasoline and diesel. Imbroscio Decl., Ex. 16, Peterson
`Dep. at 25:8-29:12, 52:13-18, 54:4-11. Mr. Peterson did not always wear personal protective
`equipment during his exposure to these carcinogens. Id. at 26:3-5, 54:12-19.
`• Lorraine Rehak, a resident of Palos Hills, Illinois, was diagnosed in June 2014 with low grade,
`Stage II follicular NHL. Imbroscio Decl., Ex. 17, First Amended Rehak Fact Sheet at 5. Ms.
`Rehak has been a steady smoker for 42 years—smoking a full pack every day according to her
`medical records—despite doctor warnings advising her to quit. Imbroscio Decl., Ex. 18, Rehak
`Dep. at 199:21-200:14. She also has an extensive family history of cancer, including her
`grandmother, who died of stomach cancer, her father, who died of liver and pancreatic cancer,
`and her sister, who currently has thyroid cancer. Imbroscio Decl., Ex. 17, First Amended Rehak
`Fact Sheet at 3-4. Ms. Rehak alleges primarily passive occupational exposure to Roundup while
`working in customer service and sales at a lawn care company, and residential exposure. Id. at 8-
`9.
`• John Schafer, a resident of Roseville, Illinois, was diagnosed with follicular lymphoma in
`January 2018, and with DLBCL in February 2018. Imbroscio Decl., Ex. 19, Third Amended
`Schafer Fact Sheet at 5; Imbroscio Decl., Ex. 20, Schiff (Schafer) Expert Report at 7-8. In
`addition to age and weight, Mr. Schafer’s risk factors include Hashimoto’s Thyroiditis, an
`autoimmune disease. Imbroscio Decl., Ex. 21, Schafer Dep. at 224:24-225:13, 227:08-21. Mr.
`Schafer claims occasional residential exposure to Roundup from 1985-2006 and from 2012-2018.
`Imbroscio Decl., Ex. 19, Third Amended Schafer Fact Sheet at 9-10.
`• Randall Seidl, a resident of Charlotte, North Carolina, was diagnosed with grade 3 follicular
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`lymphoma in November 2014. Imbroscio Decl., Ex. 22, Seidl Dep. at 192:12-14, 233:13-18. Mr.
`Seidl’s Roundup use was exclusively residential. Id. at 156:20-22. He claims to have used it at
`3 or 4 different residences beginning in 1990, but that his most extensive Roundup usage occurred
`from 2005-2010 in San Antonio, Texas. Mr. Seidl had an increased risk of developing NHL based
`on his age (57) at the time of his diagnosis. Imbroscio Decl., Ex. 1, Boyd (Seidl) Dep. at 92:11-
`14.
`III.
`
`Plaintiffs’ Experts All Purport to Use a Differential “Etiology” in Forming Their
`Specific Causation Opinions.
`Like other specific causation experts previously assessed in this MDL, these experts purport
`
`to reach their specific causation opinions through what they claim is a differential etiology. As this
`Court has acknowledged, “differential diagnosis” is a term courts use to describe the “scientific
`technique of identifying the cause of a medical problem by eliminating the likely causes until the
`most probable one is isolated.” Clausen v. M/V New Carissa, 339 F.3d 1049, 1057 (9th Cir. 2003)
`(quoting Westberry v. Gislaved Gummi AB, 178 F.3d 257, 262 (4th Cir. 1999)). This process requires
`an expert to first “rule in” all potential causes—i.e., “to compile a comprehensive list of hypotheses
`that might explain the set of salient clinical findings under consideration.” Id. The expert must then
`“rule out” the possible causes using a scientific method until only the most likely cause remains. Id.
`
`The “differential etiology” performed by Plaintiffs’ experts, while it has a similar name, is
`fundamentally different from the accepted medical practice of differential diagnosis. It purports to
`use a comparable methodology, but to discern the fundamental cause of a disease rather than to
`diagnose the disease itself. See, e.g., Imbroscio Decl., Ex. 11, Schiff (Karman) Dep. at 121:10-15.
`As discussed below, unlike a differential diagnosis the differential “etiology” is a “legal construct”
`that is not used in actual medical practice and has no support in published scientific literature.
`
`Each of Plaintiffs’ experts here utilizes a legal perversion of the “differential diagnosis”
`process that strays far from any reliable methodology because their process is designed to lead to their
`pre-ordained conclusion. First, they rule in Roundup by uncritically relying on the same flawed
`studies the general causation experts rely on and without taking account of the Plaintiffs’ specific
`subtype of NHL. See, e.g., Imbroscio Decl., Ex. 4, Schiff (Schafer) Dep. at 42:8-20. While quick to
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`rule in Roundup in every case, these experts refuse to also rule in known NHL risk factors, even when
`other experts (assessing different Plaintiffs) readily agree that such risk factors should be ruled in for
`any reliable differential diagnosis. Second, the experts purport to rule out every other relevant NHL
`risk factor except Roundup, again without considering the specific sub-type at issue, and without
`applying the same reasoning and methodological rigor to the potential alternative causes that they
`apply to Roundup. And throughout their analyses, these experts ignore altogether the possibility that
`Plaintiffs’ NHL may have no known cause, as would be the case where NHL is caused by a yet to be
`discovered factor or from the random mutation that inevitably occurs through normal cell division.
`According to each of these experts, if the Plaintiff came into contact with Roundup, that fact alone
`automatically excludes the possibility of an idiopathic or unknown cause.
`LEGAL STANDARD
`Under Federal Rule of Evidence 702, an expert may give opinion testimony only if (a) the
`expert’s “scientific, technical, or other specialized knowledge will help the trier of fact to understand
`the evidence or to determine a fact in issue”; (b) “the testimony is based on sufficient facts or data”;
`(c) “the testimony is the product of reliable principles and methods”; and (d) the expert “has reliably
`applied the principles and methods to the facts of the case.” Fed. R. Evid. 702. In other words, an
`expert must be qualified and must offer testimony that is both relevant and reliable. Id.; see also
`Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993). Here, the experts’ opinions should
`be excluded on the grounds that (1) they are not reliable, and (2) they are not helpful to the jury
`because the experts automatically conclude Roundup was the cause without weighing or eliminating
`other risk factors in any reliable manner.
`In the specific causation context, Rule 702 requires experts purporting to use a differential
`diagnosis to carry out both aspects of that methodology—“ruling in” all possible causes and “ruling
`out” all but the subject cause—in a reliable fashion. To reach an admissible causation opinion through
`a reliable differential diagnosis, an expert must “accurately diagnose the nature of the disease, reliably
`rule in the possible causes of it, and reliably rule out the rejected causes.” In re Aredia & Zometa
`Prod. Liab. Litig., 483 F. App’x 182, 188 (6th Cir. 2012). Because the inherent malleability of this
`methodology can shroud what may be little more than subjective guesswork, the district court must
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`“delve into the particular witness’s method of performing a differential diagnosis to determine if his
`or her ultimate conclusions are reliable.” Poust v. Huntleigh Healthcare, 998 F. Supp. 478, 496
`(D.N.J. 1998). Courts have consistently held that expert opinions that pay lip service to this
`methodology but do not reliably apply it should be excluded. See, e.g., In re Lipitor (Atorvastatin
`Calcium) Mktg., Sales Practices & Prod. Liab. Litig., 892 F.3d 624, 642–45 (4th Cir. 2018).
`In these personal injury cases, specific causation—here, whether Roundup caused each
`Plaintiff’s NHL—is an essential element of Plaintiffs’ claims. See, e.g., Wehmeier v. UNR Indus.,
`Inc., 213 Ill. App. 3d 6, 28, 572 N.E.2d 320, 335 (1991); Yates v. Ford Motor Co., No. 5:12-CV-752-
`FL, 2015 WL 3463559, at *2 (E.D.N.C. May 30, 2015). Under both North Carolina and Illinois law,
`whether a chemical caused an individual’s injury is beyond the experience and common knowledge
`of lay jurors, so each Plaintiff must prove it through expert testimony. See, e.g., Solis v. BASF Corp.,
`979 N.E.2d 419, 437, 365 Ill.Dec. 815, 833 (Ill. App. 1 Dist., 2012); Hayes v. Tractor Supply Co.,
`170 N.C. App. 405, 409, 612 S.E.2d 399, 402 (2005). If Plaintiffs fail to present an admissible expert
`opinion to establish specific causation, summary judgment is appropriate. In re Roundup Prods. Liab.
`Litig., 358 F. Supp. 3d 956, 957 (N.D. Cal. 2019). (“To defeat Monsanto’s motion for summary
`judgment on this issue, the plaintiffs must present at least one admissible expert opinion to support
`[his] specific causation argument.”).
`
`I.
`
`ARGUMENT
`Dr. Schiff’s Testimony Reveals That the Experts’ “Differential Etiology” Methodology
`Is Results Driven and Made for Litigation.
`The differential etiology Plaintiffs’ experts invoke does little more than dress up in the
`trappings of scientific method a pre-determined conclusion that Roundup caused Plaintiffs’ NHL.
`Perhaps the best illustration of the unscientific nature of their testimony is Dr. Schiff’s admission that
`the “methodology” he employs, which he calls a “differential etiology,” was invented purely for
`litigation, Imbroscio Decl., Ex. 11, Schiff (Karman) Dep. at 120:14-20 (“Q. And is [differential
`etiology] a twist of phrase from the medical community based on differential diagnosis? A.
`Absolutely. I only use that phrase because of you guys.”), and is “completely different” from the type
`of differential diagnosis he would conduct in medical practice, id. at 121:10-13. In fact, Dr. Schiff
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`has never used his “differential etiology” in medical practice, and admitted that there are no
`publications regarding his differential etiology method or how it should be used to assess the cause
`of a person’s cancer. Imbroscio Decl., Ex. 7, Schiff (Cervantes) Dep. at 80:22-81:20 (“Q. It’s not
`something that you ever used in your medical practice; right? A. Also correct. Q. And because it’s
`a legal construct, you’re not aware of any medical or scientific publications that reference this
`differential etiology methodology or how to apply it to cases? A. That’s correct.”). Dr. Schiff further
`admitted that in cases where a plaintiff has more than one risk factor, and despite labeling his
`methodology a “differen