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`Case 3:16-md-02741-VC Document 12890 Filed 04/02/21 Page 1 of 17
`
`Ken Moll
`Rebecca Fredona
`Fatima Abuzerr
`MOLL LAW GROUP
`22 W Washington St
`15th Floor
`Chicago, IL 60602
`T: 312.462.1700
`F: 312.756.0045
`rfredona@molllawgroup.com
`
`Attorneys for Plaintiffs
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`
`
`
`IN RE: ROUNDUP PRODUCTS LIABILITY
`LITIGATION
`
`
`This document relates to:
`
`Cervantes v. Monsanto Co., 3:19-cv-03015-VC
`Karman v. Monsanto Co., 3:19-cv-01183-VC
`Pecorelli v. Monsanto Co., 3:19-cv-06936-VC
`Peterson v. Monsanto Co., 3:19-cv-07271-VC
`Schafer v. Monsanto Co., 3:19-cv-02169-VC
`
`
`
`
`
`
`
`
`MDL No. 2741
`
`Case No. 16-md-02741-VC
`
`PLAINTIFFS’ RESPONSE TO
`MOTION TO EXCLUDE
`TESTIMONY OF DR. DENNIS
`WEISENBURGE DAUBERT
`GROUNDS
`
`
`PLAINTIFFS’ RESPONSE TO MOTION TO EXCLUDE TESTIMONY OF DR. DENNIS
`WEISENBURGER ON DAUBERT GROUNDS
`
`
`
`________________________________________________________________
`PLAINTIFFS’ RESPONSE TO MOTION TO EXCLUDE TESTIMONY OF DR. DENNIS WEISENBURGER ON
`DAUBERT GROUNDS
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`Case 3:16-md-02741-VC Document 12890 Filed 04/02/21 Page 2 of 17
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`TABLE OF CONTENTS
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`I. INTRODUCTION ..............................................................................................1
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`II. LEGAL STANDARD .......................................................................................2
`
`III. ARGUMENT ...................................................................................................4
`
`A. Dr. Weisenburger’s Testimony And Opinions In the Wave 2 Cases Are
`Reliable ........................................................................................................4
`
`
`i. Dr. Weisenburger’s Methodology is Reliable and Proper ............4
`
`ii. Dr. Weisenburger’s Opinions Are Reliable Because He
`Considered Plaintiffs’ Alternative Risk Factors ..............................5
`
`iii. This Court Has Previously Ruled That Plaintiffs’ Experts
`Properly Ruled Roundup as The Cause of Plaintiffs’ Non-
`Hodgkin’s Lymphoma ...................................................................12
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`V. CONCLUSION ..............................................................................................12
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`PLAINTIFFS’ RESPONSE TO MOTION TO EXCLUDE TESTIMONY OF DR. DENNIS WEISENBURGER ON
`DAUBERT GROUNDS
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`Case 3:16-md-02741-VC Document 12890 Filed 04/02/21 Page 3 of 17
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`
`TABLE OF AUTHORITIES
`
`Cases:
`
`Clausen v. M/V NEW CARISSA,
`339 F.3d 1049, 1057 (9th Cir. 2003) .................................................................2, 11
`
`Cooper v. Takeda Pharmaceuticals America, Inc.,
`
`239 Cal. App. 4th 555 (2014) ........................................................................3, 9, 10
`
`In re Roundup Prod. Liab. Litig.,
`390 F. Supp. 3d 1102 (N.D. Cal. July 10, 2018) .................................................1, 4
`
`
`In re Roundup Products Liability Litig.,
`No. 16-CV-0525-VC (N.D. Cal., July 12, 2019) .................................................... 1
`
`Messick v. Novartis Pharmaceuticals Corp.,
`747 F.3d 1193, 1196 (9th Cir. 2014) ............................................................2, 3, 10
`
`Primiano v. Cook,
`598 F.3d 558, 563, as amended (Apr. 27, 2010) (9th Cir. 2010) ...........................3
`
`Wendell v. GlaxoSmithKline, LLC,
`858 F.3d 1227, 1237 (2017) ...................................................................2, 9, 10, 11
`
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`PLAINTIFFS’ RESPONSE TO MOTION TO EXCLUDE TESTIMONY OF DR. DENNIS WEISENBURGER ON
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`Case 3:16-md-02741-VC Document 12890 Filed 04/02/21 Page 4 of 17
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`I. Introduction
`Dr. Dennis Weisenburger has more than 40 years of experience and is a highly qualified
`physician and hematopathologist - currently an Assistant Pathologist at City of Hope National
`Medical Center in Duarte, California. Fredona Decl., Ex. 1, Dr. Sawyer CV. He is Board Certified
`by the National Board of Medical Examiners and the Anatomic and Clinical Pathology, American
`Board of Pathology. Id. To date, Dr. Weisenburger has given many dozens of hours of testimony
`in the Roundup® litigation. He has spent hundreds of hours reviewing published studies, medical
`records and conducted interviews with Plaintiffs.
` Dr. Weisenburger is offering case specific opinions for Gerard Cervantes, John Schafer,
`James Peterson, Mark Pecorelli, individually and as Representative of the Estate of Michael
`Pecorelli, deceased and Christine Karman, Individually and as Representative of the Estate of
`Robert Karman, deceased. Dr. Weisenburger will testify regarding causes of cancer, causes of
`non-Hodgkin’s lymphoma, whether exposure to glyphosate and/or glyphosate-based formulated
`products can cause cancer, and particularly non-Hodgkin’s lymphoma, including testimony in the
`areas of epidemiology, pathology, hematopathology, cellular changes with the development of
`NHL and cancer development. These areas of testimony were the subject of his prior testimony in
`the Roundup litigation.
`Monsanto’s motion should be denied in full, and the jury should be allowed to consider Dr.
`Weisenburger’s testimony before reaching its conclusions. Monsanto has repeatedly tried and
`failed to exclude or strike Dr. Weisenburger’s opinions. See In re Roundup Prods. Liab. Litig., 390
`F. Supp. 3d 1102 (N.D. Cal. July 10, 2018). (Court finding no basis for excluding Dr.
`Weisenburger’s opinion) ; In re Roundup Products Liability Litigation (N.D. Cal., July 12, 2019,
`No. 16-CV-0525-VC) 2019 WL 3219360, at *1 (Dr. Weisenburger’s testimony admissible where
`he testified that Hardeman’s “...exposure levels still far exceeded the threshold used in most of the
`epidemiological literature, and specifically the McDuffie and Eriksson studies.”). Further,
`Monsanto makes the same arguments in its Motion regarding Dr. Weisenburger in Plaintiffs
`Gerard Cervantes, John Schafer, James Peterson, Mark Pecorelli, individually and as
`Representative of the Estate of Michael Pecorelli, deceased and Christine Karman, Individually
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`PLAINTIFFS’ RESPONSE TO MOTION TO EXCLUDE TESTIMONY OF DR. DENNIS WEISENBURGER ON
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`Case 3:16-md-02741-VC Document 12890 Filed 04/02/21 Page 5 of 17
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`and as Representative of the Estate of Robert Karman, deceased, cases as Monsanto made in
`motions regarding Dr. Sawyer in Wave One cases. This Court has already considered and denied
`Monsanto’s previous Motions’ to Exclude Testimony of Plaintiffs Specific Causation Expert Dr.
`Weisenburger in Pre-Trial Order (“PTO”) 203, Dkt. No. 9144, for the reasons set forth in PTO 85,
`Dkt. No. 2799. Because the germane facts, issues and law are essentially the same in all of
`Monsanto’s motions regarding Dr. Weisenburger, Plaintiffs here adopt the Wave One Plaintiffs’
`Response to Monsanto’s Specific Causation Daubert and Summary Judgment Motion to Strike
`Certain Opinions of Monsanto Company’s Expert Witnesses (MDL No. 2741 Document 2478).
`Plaintiffs also incorporate the developing science on glyphosate as set forth in and attached
`as exhibits to their opposition to Monsanto’s Motion for Summary Judgment on Causation
`Grounds (Dkt. No. 8001). By incorporating by reference prior filings to this pleading, Plantiffs are
`in no way waiving any arguments raised therein.
`In addition to the above briefing and this Court’s prior ruling that these experts may testify
`on specific causation issues, Plaintiffs address the issues that Monsanto contends were not
`previously decided by the Court.
`II. Legal Standard
`The Ninth Circuit has mandated that “Rule 702 should be applied with a ‘liberal thrust’
`favoring admission.” Wendell, 858 F.3d at 1232 (quoting Messick v. Novartis Pharm. Corp., 747
`F3d 1193, 1196 (9th Cir. 2014)). Expert testimony is admissible under Rule 702 when based on a
`reliable differential diagnosis. See id. at 1235 (“Nothing in Daubert, or its progeny, properly
`understood, suggests that the most experienced and credentialed doctors [specifically referencing
`Dr. Weisenburger and Dr. Shustov] in a given field should be barred from testifying based on a
`differential diagnosis.”). In conducting a differential diagnosis,1 an expert considers the
`“pertinence of all potential causes, then rules out the ones as to which there is no plausible evidence
`of causation, and then determines the most likely cause among those that cannot be excluded.” Id.
`
`
`1 See Wendell, 858 F.3d at 1234 (“When performing a differential diagnosis, [Dr. Shustov] first assumes the
`pertinence of all potential causes, then rules out the ones as to which there is no plausible evidence of causation, and
`then determines the most likely cause among those that cannot be excluded. We have recognized that this method of
`conducting a differential diagnosis is scientifically sound.” (citing Clausen, 339 F.3d at 1057-58).
`- 2 -
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`Case 3:16-md-02741-VC Document 12890 Filed 04/02/21 Page 6 of 17
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`at 1234 (approving Dr. Shustov’s methodology). The Ninth Circuit also “consistently recognize[s]
`the difficulties in establishing certainty in the medical sciences.” Messick v. Novertis Pharm.
`Corp., 747 F.3d 1193, 1197-98 (9th Cir. 2010) (citing Primiano v. Cook, 598 F.3d 558, 565 (9th
`Cir. 2010)). Therefore, it is not necessary that “an expert be able to identify the sole cause of a
`medical condition in order for his or her testimony to be reliable. It is enough that medical
`condition be a substantial causative factor.” Id. at 1199; see also Schultz v. Akzo Nobel paints,
`LLC, 721 F.3d 426, 434 (7th Cir. 2013) (“[A] reliable expert should consider alternative causes,
`they do not require an expert to rule out every alternative cause.”); Johnson v. Mead Johnson &
`Co., LLC, 754 F.3d 557, 563 (8th Cir. 2014) (“However, we have consistently ruled that experts
`are not required to rule to all possible causes when performing the differential etiology
`analysis.”)(internal citations omitted).
`The relevancy of an expert opinion is governed by California law. Messick 747 F.3d at
`1196-97. Under California law, “[t]he plaintiff must offer an expert opinion that contains a
`reasoned explanation illuminating why the facts have convinced the expert, and therefore convince
`the jury, that is more probable that not the negligent act was a cause-in-fact of the plaintiffs injury.”
`Cooper v. Takeda Pharm. Am., Inc., 239 Cal. App. 4th 555, 578 (2015) (quoting Jennings v.
`Palomar Pomerado Health Sys., Inc., 114 Cal. App. 4th 1108, 1118 (2003)). “Under the applicable
`substantial factor test, it is not necessary for a plaintiff to establish the negligence of the defendant
`as the proximate cause of injury with absolute certainty so as to exclude every other possible cause
`of a plaintff’s illness, even if the expert’s opinion was reached by performance of a differential
`diagnosis.” Id. “A substantial factor in causing harm is a factor that a reasonable person would
`consider to have contributed to the harm. It must be more than a remote or trivial factor. It does
`not have to be the only cause of the harm.” Id. at 595 (quoting CACI 430) (holding that it was
`unnecessary for expert to rule out smoking as contributing cause to Plaintiff’s injury).
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`PLAINTIFFS’ RESPONSE TO MOTION TO EXCLUDE TESTIMONY OF DR. DENNIS WEISENBURGER ON
`DAUBERT GROUNDS
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`Case 3:16-md-02741-VC Document 12890 Filed 04/02/21 Page 7 of 17
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`III. Argument
`
`
`A. Dr. Weisenburger’s Testimony and Opinions In the Wave 2 Cases Are Reliable.
`
`
`i. Dr. Weisenburger’s Methodology is Reliable and Proper.
`
`In its Motion to Exclude, Monsanto, attempts to discredit Dr. Weisenburger because a
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`study he co-authored, “found statistically significant increased risks of NHL among welders,”
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`almost two decades ago (Monsanto’s Motion to Exclude, ECF 12784 at 2). However, Monsanto’s
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`reliance on the study is not reliable. In fact, when questioned about that very study, Dr.
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`Weisenburger thoroughly explains as to why he would not rely upon it. Dr. Weisenburger states:
`
`“I don’t think it’s been a consistent finding in other studies… it’s not
`conclusive…you have to have consistency in findings from epidemiologic studies to
`really have confidence in what you’ve found is true…one would have to do a more
`specific, a more detailed study to really know that, but one never relies on one study,
`even if it’s your own study, because there needs to be consistency of findings among
`multiple studies done by different people in different populations at different
`times…I’m not sure I would conclude the epidemiologic literature really supports
`this.”
`
`Attached to Monsanto’s Motion to Exclude, Ex. 1, Weisenburger Cervantes Dep. 81:16-
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`82:22. The study only focused on 2380 individuals, from several different professions, of which
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`only a small percentage had NHL and an even smaller number of those who were actually welders.
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`See Monsanto’s Ex. 2, Zheng et al., Occupation and Risk of Non-Hodgkin’s Lymphoma and
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`Chronic Lymphocytic Leukemia, 44 J. Occupational & Environmental Med. 469 (2002). Indeed,
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`Dr. Weisenburger mistakenly denied to ever conducting research on NHL and welding, however,
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`to expect an expert to recall every single study or publication they have ever published, over their
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`forty (40) year experience is unreasonable.
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`This Court has held before that Dr. Weisenburger’s “failure to mention data in his expert
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`report, even though he is an author of that study” does not “deem his epidemiology opinion
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`unreliable.” See In re Roundup Prods. Liab. Litig., 390 F. Supp. 3d 1102, at *1142 (N.D. Cal., July
`
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`Case 3:16-md-02741-VC Document 12890 Filed 04/02/21 Page 8 of 17
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`10, 2018). Dr. Weisenburger had stated there that he “elected to include published studies in his
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`expert report a defensible choice” and “was willing and able to discuss the NAPP during Daubert
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`hearings…” Id. Similarly, here, Dr. Weisenburger relied on studies that were more reliable and
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`recent. Dr. Weisenburger has published and peer-reviewed hundreds if not thousands of studies
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`over the course of forty (40) years, therefore, to not have done research, regarding welding, which
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`may not even be available or exist, does not render his opinions unreliable. In fact, Dr.
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`Weisenburger stated he has not done research regarding welding “because I know the literature
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`fairly well and I know that welding is not a known risk factor for non- Hodgkin lymphoma.”
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`Monsanto’s Ex. 1, Weisenburger Cervantes Dep., 52:3-53:1. Monsanto is free to cross-examine
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`Dr. Weisenburger at trial regarding the study and his methodology, however, such disagreements
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`do not render Dr. Weisenburger’s opinion unreliable.
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`ii. Dr. Weisenburger’s Opinions Are Reliable Because He Considered Plaintiffs’
` Alternative Risk Factors.
`
`Despite Dr. Weisenburger’s impressive credentials and substantial review of the actual
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`evidence, such as Plaintiffs’ medical records, scientific and medical literature as well as conducting
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`interviews with Plaintiffs, Monsanto claims that his opinions should be excluded for failure to
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`address other risk factors. However, Monsanto is wrong.
`
`Gerard Cervantes
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`Monsanto erroneously claims that Dr. Weisenburger failed to consider Mr. Cervantes’
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`exposure to PCB and Benzene. However, Dr. Weisenburger did. Dr. Weisenburger considered
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`how long Mr. Cervantes may have been exposed to Benzene and whether Mr. Cervantes was
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`required to wear personal protective equipment (“PPE”) while working for Nicor. Monsanto’s Ex.
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`1, Weisenburger Cervantes Dep. at 60:11-61:13. Additionally, Dr. Weisenburger concluded that
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`Benzene, PCB and other chemicals were not a contributing factor in Mr. Cervantes’ case because
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`of the fact that Nicor was required to follow OSHA standards and had periodically conducted tests
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`to detect chemicals in the workplace and “there was never any significant OHSA standard that was
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`exceeded… the levels of these chemicals were always below the OSHA standards…” Monsanto’s
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`Ex. 1, Id. at 60:25-61:13; Also see, Fredona Decl., Ex. 2, Weisenburger Cervantes Rpt. p. 3. Thus,
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`Dr. Weisenburger’s opinion is reliable because he considered other potential risk factors and ruled
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`them out based off the lack of exposure Mr. Cervantes had with other chemicals.
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`Monsanto moves to have Dr. Weisenburger’s testimony excluded for also admitting there
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`may be more than one contributing factor in Mr. Cervantes’ case such as his family history and
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`weight. Monsanto attempts to discredit Dr. Weisenburger for relying on “epidemiologic principle”
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`which is relied on by many experts and physicians alike. Dr. Weisenburger has over forty (40)
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`years of experience, where he has peer-reviewed articles, published studies, editorials and letters
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`as well as contributed to book chapters. See Fredona Decl., Ex. 1, Weisenburger CV. If an expert
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`such as Dr. Weisenburger cannot rely upon epidemiologic principle than no expert’s testimony
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`will be ever be found admissible in a toxic tort case, which is unreasonable and unrealistic.
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`Additionally, in regard to Mr. Cervantes’ weight, Dr. Weisenburger has stated it is a “minor risk
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`factor because the odds ratio is not very high, whether you take it as 1.27 or 1.4” and thoroughly
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`explains that he uses a guideline to establish a cut off to what is considered a minor contributing
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`factor… which is anything less than twofold.” Monsanto’s Ex. 1, Weisenburger Cervantes Dep.
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`at 40:3-41:14; 43:4-22. Here, Mr. Cervantes’ weight only had an odds ratio of 1.27, which fell
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`under the twofold cut off Dr. Weisenburger follows, which is also why Dr. Weisenburger
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`considered Mr. Cervantes’ weight a “minor risk factor.”
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`Robert Karman
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`Monsanto again attempts to exclude Dr. Weisenburger’s because other than Mr. Karman’s
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`weight, no other risk factor was found. Although, smoking was not a factor, Dr. Weisenburger did
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`conclude that age, race and weight were. Monsanto’s Ex. 5, Weisenburger Karman Dep. at 84:8-
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`22. Dr. Weisenburger further explains why these risk factors are not substantially significant in
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`Mr. Karman’s case:
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`Q: So were there any other known risk factors that you saw for Mr. Karman other
`than his age, race, gender and weight? A: No. But his weight was the only one that
`was modifiable. Obviously his age, his sex, and his race are all things he can’t do
`anything about…Q: and what’s modifiable? A: I considered those risk factors, but
`they’re not really causative risk factors.
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`Monsanto’s Ex. 5, Weisenburger Karman Dep. Id. Dr. Weisenburger also supports his
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`
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`conclusion by explaining why those risk factors are not causative:
`
` Q: But isn’t it true that his risk from being a 77-year-old white male, while not
`modifiable, still is a – a substantial cause of non-Hodgkin’s lymphoma in the
`population at large? A: I wouldn’t consider it a cause. Otherwise, all 77-year-old men
`have an increased risk of non-Hodgkin’s lymphoma, and then what do you compare
`it to, 65-year old men, 55-year old men? Sure, then it is increased, but it isn’t
`increased compared to other 77-year old men without other co-risk factors.
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`Id. at 85:11-23. Additionally, Monsanto attempts to discredit Dr. Weisenburger for not
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`considering Spectracide as a contributing factor. Monsanto’s Motion to Exclude, ECF 12784, at 6.
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`However, Monsanto itself does not even consider Spectracide to be a factor in causing NHL. Id. at
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`6, footnote 7. Thus Dr. Weisenburger’s provided a thorough explanation as to why he came to his
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`opinions and is therefore reliable. Dr. Weisenburger’s testimony should not be rendered unreliable
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`because he considered different risk factors in the development of NHL than Monsanto would agree
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`with, these differences of opinions go to weight and not admissibility, and Monsanto is free to cross-
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`examine Dr. Weisenburger on such opinions.
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`James Peterson
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`Monsanto unsuccessfully attempts to persuade this Court that Dr. Weisenburger has failed
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`to consider smoking as a significant contributing factor to causing NHL. However, Dr.
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`Weisenburger’s conclusion is based off of medical literature and epidemiological studies. “There
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`were studies that I was involved in that were done by the InterLymph Consurtium that looked at
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`smoking over a number of different pages and different subtypes. And smoking just is not
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`considered a risk factor for non-Hodgkin’s lymphoma or for diffuse large B-cell lymphoma”
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`Monsanto’s Ex. 7, Weisenburger Peterson Dep. at 46:9-47:16. Similar to Mr. Cervantes, Mr.
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`Peterson was overweight, therefore, Dr. Weisenburger applied the same methodology to factor
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`whether or not his weight was a significant contributing factor. Dr. Weisenburger states that Mr.
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`Peterson was considered “overweight rather than obese” and that Mr. Peterson’s odds ratio was
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`only 1.27, which is why his weight is only a small risk factor. Id. at 68:11-71:2.
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`Monsanto also attempts to discredit Dr. Weisenburger because he did not consider Mr.
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`Peterson’s exposure to Weed-B-Gon, a chemical that Monsanto itself does not consider a cause of
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`NHL. Monsanto’s Motion to Exclude, ECF 12784, at 6, footnote 7. Dr. Weisenburger relied on
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`the interview he conducted with Mr. Peterson in regard to how much exposure he had with Weed-
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`Be-Gon or 2,4-D. Id. at 33:19-34:15; 43:19-25. Dr. Weisenburger concluded Weed-Be-Gon was
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`not a significant contributing factor in Mr. Peterson’s case because “he only used it a few times.”
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`Id. Dr. Weisenburger also stated that 2,4-D increases the risk of NHL in cases where there has
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`been “extensive heavy use,” which is not the case here. Id. at 45:8-24.
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`Michael Pecorelli
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`Monsanto attempts to claim that Dr. Weisenburger’s testimony on Mr. Pecorelli’s exposure
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`to other chemicals is unreliable. However, Dr. Weisenburger specifically stated that studies have
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`shown inconsistent data regarding 2,4-D and its increased risk. Monsanto’s Ex. 9, Weisenburger
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`Pecorelli Dep. at 99:5-100:4. In fact, Dr. Weisenburger stated that IARC concluded that 2, 4-D
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`was not a definite cause but a possible cause. Id. at 99:13-25. Additionally, Dr. Weisenburger was
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`PLAINTIFFS’ RESPONSE TO MOTION TO EXCLUDE TESTIMONY OF DR. DENNIS WEISENBURGER ON
`DAUBERT GROUNDS
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`Case 3:16-md-02741-VC Document 12890 Filed 04/02/21 Page 12 of 17
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`informed by Mr. Pecorelli’s son, during an interview, that Mr. Pecorelli didn’t use other chemicals
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`and pesticides that often. Id. at 96:19-97:9;100:5-101:3. Monsanto attempts to persuade this Court
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`to believe that Mr. Pecorelli’s exposure to other chemicals were significant, however, Dr.
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`Weisenburger states that the other pesticides used were granular. Id. at 95:19-96:18. Dr.
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`Weisenburger explains that “you don’t get much exposure” to granular pesticides, such as
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`Diazinon, Treflan—Surflan, Treflan granules, diazinon granules are pesticides. Id. Therefore, Dr.
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`Weisenburger’s opinions are reliable because he assessed Mr. Pecorelli’s exposure to other
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`chemicals and also relied on epidemiological studies to support his opinions.
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`John Schafer
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`Indeed, Dr. Weisenburger did not know the exact number of NHL cases represented in a
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`study reporting threefold increased risk in NHL from Hashimoto’s thyroiditis. Monsanto’s Ex. 11,
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`Weisenburger Schafer Dep. at 97:3-9. However, that information is of no significance and Dr.
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`Weisenburger stated he “thoroughly investigated” what was conducted in the study. Id. at 98:5-
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`99:5. In fact, Dr. Weisenburger states: “I’ve had this same situation in some past cases, so I
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`thoroughly investigated that, because it’s a question I wanted to know. It’s well known that
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`Hasimoto’s thyroiditis increases the risk of thyroid lymphoma…studies show the risk in the
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`thyroid is very high; 60 to 80 times. Whereas the risk outside the thyroid is not increased at all.”
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`Id. Therefore, Dr. Weisenburger has proven that his opinions are reliable.
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`***
`Controlling law in the 9th Circuit and the Cooper case both make clear that Monsanto’s
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`request for an exhaustive quest into speculative factors is not needed and does not disqualify an
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`expert from testifying. Furthermore, Monsanto does not proffer an expert to testify that any of the
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`above speculative exposures were a substantial factor in causing either Plaintiffs’ non-Hodgkin’s
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`lymphoma.
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`PLAINTIFFS’ RESPONSE TO MOTION TO EXCLUDE TESTIMONY OF DR. DENNIS WEISENBURGER ON
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`Case 3:16-md-02741-VC Document 12890 Filed 04/02/21 Page 13 of 17
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`In Wendell v. GlaxoSmithKline, LLC, 858 F.3d 1227, 1237 (2017), the 9th Circuit made
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`clear that:
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`“We do not require experts to eliminate all other possible causes of a
`condition for the expert’s testimony to be reliable. It is enough that the
`proposed cause “be a substantial causative factor.” This is true in patients
`with multiple risk factors, and analogously, in cases where there is a high
`rate of idiopathy.”
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`Noting that Dr. Shustov employed sound methodologies and based his opinions on medical
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`records as well as his education training and experience, knowledge of the pertinent medical
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`literature and his knowledge of the epidemiology, diagnosis and natural history of the disease,
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`(hepatosplenic T-cell lymphoma) the 9th Circuit reversed the trial court’s grant of summary
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`judgment on the basis that Plaintiff did not present admissible expert testimony of causation. Id.
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`at 1234.
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`Likewise, in Cooper v. Takeda Pharmaceuticals America, Inc., 239 Cal. App. 4th 555
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`(2014), the California Court of Appeals reversed the trial court’s determination that the expert, Dr.
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`Smith, was required to rule out all other possible causes for plaintiff’s bladder cancer, even where
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`there was no substantial evidence that other such causes might be relevant.
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`In Cooper the defendant argued that the plaintiff was subject to environmental and
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`occupational exposures, including exposure to second hand smoke at work and potential exposure
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`to “anything” during his army service and therefore the expert’s opinion should be excluded for
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`failure to track down and investigate these multiple potential causative factors of Plaintiff’s bladder
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`cancer.
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`Additionally, Monsanto’s argument is similarly a rehash of the argument this Court also
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`rejected in PTO 85. The Court wrote:
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`Recognizing that “[m]edicine partakes of art as well as science,” the Ninth
`Circuit’s recent decisions reflect a view that district courts should typically
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`PLAINTIFFS’ RESPONSE TO MOTION TO EXCLUDE TESTIMONY OF DR. DENNIS WEISENBURGER ON
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`Case 3:16-md-02741-VC Document 12890 Filed 04/02/21 Page 14 of 17
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`admit specific causation opinions that lean strongly toward the “art” side of
`the spectrum. Messick, 747 F.3d at 1198; see also Wendell, 858 F.3d at 1237
`(“The first several victims of a new toxic tort should not be barred from
`having their day in court simply because the medical literature, which will
`eventually show the connection between the victims’ condition and the
`toxic substance, has not yet been completed.” (quoting Clausen, 339 F.3d
`at 1060)).
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`* * *
`Under Ninth Circuit caselaw, doctors enjoy wide latitude in how they
`practice their art when offering causation opinions. See Wendell, 858 F.3d
`at 1237 (“Where, as here, two doctors who stand at or near the top of their
`field and have extensive clinical experience with the rare disease or class of
`disease at issue, are prepared to give expert opinions supporting causation,
`we conclude that Daubert poses no bar based on their principles and
`methodology.”). It is sufficient for a qualified expert, in reliance on his
`clinical experience, review of a plaintiffs’ medical records, and evaluation
`of the general causation evidence, to conclude that an “obvious and known
`risk factor[]” is the cause of that plaintiff’s disease. See Wendell, 858 F.3d
`at 1235. Here, the specific causation experts did that. Relying on the
`plaintiffs’ admissible general causation opinions – which assert a robust
`connection between glyphosate and NHL – the experts concluded that
`glyphosate was a substantial factor in causing the plaintiffs’ NHL.
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`* * *
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`Moreover, the experts relied heavily on the plaintiffs’ exposure levels in
`drawing their conclusions. All three experts noted the plaintiffs’ extensive
`Roundup usage, and further explained – as did the plaintiffs’ general
`causation opinions – that both the McDuffie (2001) and Eriksson (2008)
`studies showed a dose-response relationship between glyphosate and NHL.
`See generally In re Roundup Products Liability Litigation, 2018 WL
`3368534, at *9-10. Thus, consistent with Ninth Circuit caselaw, the experts
`provided a basis for their conclusion that these plaintiffs fall into the
`category of Roundup users who developed NHL. The Court may be
`skeptical of their conclusions, and in particular of the assumption built into
`their opinions from the general causation phase about the strength of the
`epidemiological evidence. But their core opinions – that the plaintiffs had
`no other significant risk factors and were exposed to enough glyphosate to
`conclude that it was a substantial factor in causing their NHL – are
`admissible.
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`PTO 85 at pp. 5-6 (footnotes omitted). Thus, because the Dr. Weisenburger here followed
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`the same methodology as those previously addressed by the Plaintiffs’ Bellwether experts,
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`Monsanto’s Motion should be denied.
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`PLAINTIFFS’ RESPONSE TO MOTION TO EXCLUDE TESTIMONY OF DR. DENNIS WEISENBURGER ON
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`Case 3:16-md-02741-VC Document 12890 Filed 04/02/21 Page 15 of 17
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`iii. This Court Has Previously Ruled That Plaintiffs’ Experts Properly Ruled
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`Roundup as The Cause of Plaintiffs’ Non-Hodgkin’s Lymphoma.
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`In response to this argument, Plaintiffs’ state that this Court has already considered and
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`rejected this argument in PTO 85, calling it “off point”. PTO 85 at 2, see also PTO 45. This Court
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`has also considered and denied Monsanto’s Motion for Directed Verdict in PTO 113. Additional