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`Case 3:16-md-02741-VC Document 12891 Filed 04/02/21 Page 1 of 11
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`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
`
`Attorney for Plaintiffs
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
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`
`
`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
`Rehak v. Monsanto Co., 3:19-cv-01719-VC
`Schafer v. Monsanto Co., 3:19-cv-02169-VC
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`
`
`
`
`
`MDL No. 2741
`
`Case No. 16-md-02741-VC
`
`PLAINTIFFS’ NOTICE OF
`MOTION AND OMNIBUS MOTION
`TO STRIKE AND EXCLUDE THE
`TESTIMONY OF DEFENDANT’S
`CASE SPECIFIC EXPERTS
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`Hearing date: May 28, 2021
`
`
`
`
`PLAINTIFFS’ OMNIBUS MOTION TO STRIKE AND EXCLUDE THE
`TESTIMONY OF DEFENDANT’S CASE SPECIFIC EXPERTS
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`Plaintiffs, Gerard Cervantes, James Peterson, Lorraine Rehak, Mark Pecorelli,
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`Individually and as Representative of the Estate of Michael Pecorelli, Christine Karman,
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`Individually and as Representative of the Robert Karman, and John Schafer (“Plaintiffs”),
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`pursuant to Federal Rule of Civil Procedure 37, Fed. R. Civ. P. 30(d)(2), Federal Rule of
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`Evidence 702, and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), hereby move to
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`strike and exclude the expert testimony proffered by Monsanto’s 17 case-specific experts, and in
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`support therein state as follows:
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`BACKGROUND
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`1
`________________________________________________________________
`PLAINTIFF’S OMNIBUS MOTION TO STRIKE THE TESTIMONY OF DEFENDANT’S CASE SPECIFIC EXPERTS
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`

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`Case 3:16-md-02741-VC Document 12891 Filed 04/02/21 Page 2 of 11
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`On December 9, 2020, this Court entered an Order setting the Wave 2 Schedule for this
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`MDL; all of the Plaintiffs are in Wave 2 of this MDL. The Order set the following expert
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`schedule: Plaintiff’s expert reports due on January 22, 2021; Defendant’s expert reports due
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`February 12, 2021; and close of expert discovery on March 10, 2021. (ECF 12198)
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`On January 22, 2021, all Plaintiffs timely served their Rule 26 Designation and
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`Disclosure on Defendant disclosing oncologists, pathologists, genotoxicologist, and forensic
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`toxicologists as their experts.
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`On February 12, 2021, Defendant served its Rule 26 Designation and Disclosure on
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`Plaintiff Gerard Cervantes naming Earl Creech, Ph.D., Matthey C. Call, MS, CIH, CSP, Jeffrey
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`William Craig, M.D., Ph.D., Ran Reshef, M.D., MSc, D. as case-specific experts. Moll Aff., Ex.
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`1 at p. 2.
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`On February 12, 2021, Defendant served its Rule 26 Designation and Disclosure on
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`Plaintiff James Peterson naming Celeste Bello, M.D., Dr. Bruce A. Woda, Brian Daly, CIH, PE,
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`and Dr. Bradley Hanson, Ph.D as case-specific experts. Moll Aff., Ex. 1 at p. 2.
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`On February 12, 2021, Defendant served its 26 Designation and Disclosure on Plaintiff
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`John Schafer naming Bradley D. Hanson, Ph.D., Mark A. Katchen, CIH, FAIHA, Matthew J.
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`Matasar, MS, MD, Graham W. Slack, M.D. as case specific experts. Moll Aff., Ex. 1 at p. 2.
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`On February 12, 2021, Defendant served its Rule 26 Designation and Disclosure on
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`Plaintiff Lorraine Rehak naming Kassim Al-Khatib, Ph.D, Alex LeBeau, PhD, MPH, CIH, Ran
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`Reshef, MD, MSc, Lawrence Weiss, MD as case-specific experts. Moll Aff., Ex. 1 at p. 2.
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`On February 12, 2021, Defendant served its Rule 26 Designation and Disclosures on
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`Plaintiff Mark Pecorelli, naming Joseph M. DiTomaso, Ph.D., Timothy S. Fenske, M.D., Robert
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`N. Phalen, Ph.D., CIH, Graham W. Slack, M.D. as case specific experts. Moll Aff., Ex. 1 at p. 2.
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`
`2
`________________________________________________________________
`PLAINTIFF’S OMNIBUS MOTION TO STRIKE THE TESTIMONY OF DEFENDANT’S CASE SPECIFIC EXPERTS
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`

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`Case 3:16-md-02741-VC Document 12891 Filed 04/02/21 Page 3 of 11
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`On February 12, 2021, Defendant served its Rule 26 Designation and Disclosures on
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`Robert Karman, naming Celeste Bello, M.D. Bruce A. Woda, M.D., Alex Lance LeBeau, PhD,
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`MPH, CIH, and Joseph M. DiTomaso, Ph.D. as case-specific experts. Moll Aff., Ex. 1 at p. 2.
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`On February 13, 2021 – 25 days prior to the deadline to depose case-specific experts -
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`Plaintiffs’ counsel reached out to Defendant’s counsel via email requesting several alternative
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`dates for the 24 depositions of the 17 case-specific experts that Defendant disclosed to the
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`Plaintiffs. Moll Aff., Ex. 1 at p. 2.
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`On February 16, 2021, Defendant suggested that all 24 depositions (8, seven-hour
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`depositions and 16, three-hour depositions) be taken over the course of seven days (including
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`Sunday) of the final eight days of the deadline:
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`March 3, 2021:
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`Slack for Pecorelli, 7 hours
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`March 4, 2021:
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`Call for Cervates, 7 hours at 11am ET
`Creech for Cervantes, 7 hours (or March 5, 2021)
`Slack for Schafer, 3 hours, 12:30pm PT
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`March 5, 2021:
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`Creech for Cervantes, 7 hours (or March 4, 2021)
`Fenske for Pecorelli, 7* hours
`Hanson for Schafer, 3 hours
`Hanson for Peterson, 3 hours
`Matasar for Schafer, 3 hours, 11:00-3pm ET (or March 8 10am-2pm)
`Phalen for Pecorelli, 3 hours, 10am ET
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`March 7, 2021:
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`Woda for Peterson, 3 hours
`Woda for Karman, 3 hours
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`March 8, 2021:
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`Al-Khatib for Rehak, 3 hours (or March 10, 2021)
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`3
`________________________________________________________________
`PLAINTIFF’S OMNIBUS MOTION TO STRIKE THE TESTIMONY OF DEFENDANT’S CASE SPECIFIC EXPERTS
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`Case 3:16-md-02741-VC Document 12891 Filed 04/02/21 Page 4 of 11
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`Bello for Karman, 3 hours
`Bello for Peterson, 3 hours
`Matasar for Schafer, 3 hours, 11:00-3pm ET (or March 5 11am-3pm)
`Reshef for Cervantes, 3 hours
`Reshef for Rehak, 3 hours
`Weiss for Rehak, 7* hours
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`March 9, 2021:
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`Craig for Cervantes, 7 hours (or March 10, 2021)
`Daly for Peterson, 7 hours, 12:pm ET
`DiTomaso for Pecorelli, 3 hours
`DiTomaso for Karmen, 3 hours
`Katchen for Schafer, 7 hours
`LeBeau for Karman, 3 hours, 9:00 a.m.
`LeBeau for Rehak, 3 hours
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`March 10, 2021:
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`Al-Khatib for Rehak, 3 hours (or March 8, 2021)
`Craig for Cervantes, 7 hours (or March 9, 2021)
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`*initially only offered for 3 hours. Moll Aff., Ex. 1 at p. 3-4.
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`The aforementioned schedule the Defendant proffered to Plaintiffs’ counsel was
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`untenable. The Defendant offered up to seven depositions on March 8, 2021 and March 9, 2021
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`alone; four of those depositions lasting up to seven hours each. The defendant only offered one
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`date and time for 20 depositions and offered only two dates and times for 4 depositions.
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`On February 16, 2021, Plaintiffs’ counsel attempted to confer with Defendant in good
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`faith. Plaintiff’s counsel informed Defendant’s counsel via email that the schedule provided was
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`untenable and pointed out that the schedule provided as many as five or six depositions on the
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`same day. Plaintiffs’ counsel requested several alternative dates and times, and to spread the
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`expert witness depositions out over more than six days. Moll Aff., Ex. 1 at p. 4.
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`On February 16, 2021, Defendant’s counsel responded via email that the proffered
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`schedule was due to the “tight deadline of March 10 for expert depositions” and that “our experts
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`will be responding to your experts and thus have only been given a short window to provide
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`
`4
`________________________________________________________________
`PLAINTIFF’S OMNIBUS MOTION TO STRIKE THE TESTIMONY OF DEFENDANT’S CASE SPECIFIC EXPERTS
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`

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`Case 3:16-md-02741-VC Document 12891 Filed 04/02/21 Page 5 of 11
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`deposition dates in advance of the deadline . . . .” Further, Defendant further asserted that “you
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`have left us with only about one week window or less to provide dates for the 24 depositions you
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`have requested of our experts, many of whom are practicing clinicians with availability that is
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`limited by their responsibilities to their patients.” Finally, defendant asserted that “under the
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`current situation, this is all we can offer.” The Defendant never offered any alternative dates for
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`their case-specific expert depositions. Moll Aff., Ex. 1 at p. 4.
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`On February 16, 2021, Plaintiffs’ counsel suggested that there were “many available
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`dates between tomorrow and March 10 . . .” Moll Aff., Ex. 1 at p. 4. In fact, there were 23 days
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`left before the deadline to take the depositions.
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`On March 2, 2021, Plaintiffs’ counsel again reached out to defense counsel and reiterated
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`that “we still have not been provided with alternative deposition dates that would work for us as
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`we requested. With only eight days left, I highly doubt this can get done.” Moll Aff., Ex. 1 at p.
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`4. Plaintiffs’ counsel never received a response nor were they provided any alternative dates, as
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`requested.
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`The Defendant did not confer with Plaintiffs’ counsel in good faith; the proffered
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`schedule was clearly a strategic move to prevent having to submit Monsanto’s case-specific
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`experts for examination by overburdening Plaintiffs’ counsel.
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`For example, in each of the Defendant’s Rule 26 Designation and Disclosures served on
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`Plaintiffs, Defendant named a “weed scientist” expert. Those experts being: Earl Creech Ph.D,
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`Bradley Hanson, Ph.D, Kassim Al-Khatib, Ph.D, and Joseph M. DiTomaso, Ph.D. Plaintiffs did
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`not disclose a “weed scientist” in any of their reports. Therefore, Defendant’s weed scientists did
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`not need to respond to any of Plaintiffs’ expert reports. Defendant’s counsel could have offered
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`any date after February 13, 2021, the date Plaintiffs’ counsel first requested dates; however, they
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`chose not to.
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`5
`________________________________________________________________
`PLAINTIFF’S OMNIBUS MOTION TO STRIKE THE TESTIMONY OF DEFENDANT’S CASE SPECIFIC EXPERTS
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`
`

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`Case 3:16-md-02741-VC Document 12891 Filed 04/02/21 Page 6 of 11
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`In addition, Defendant completed the depositions of the Plaintiffs’ named forensic
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`toxicologist, Dr. William Sawyer, by February 15-18, 2021. Defendant’s counsel could have
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`provided deposition dates for their forensic toxicologist at any date after February 15, 2021, but
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`chose not to do so.
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`LEGAL STANDARD
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`The proponent of expert testimony must “come forward with evidence from which the
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`court can determine that the proffered testimony is properly admissible.”1 Under Rule 702, the
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`test of a reliable foundation looks to whether the expert’s opinions are “the product of reliable
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`principles and methods.”2 An expert must apply the principles and methods reliably to the facts
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`of the case.3 An expert opinion must be grounded in the “methods and procedures of science,”
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`and must consist of more than “subjective belief or unsupported speculation.”4 The Supreme
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`Court describes several factors for the gatekeeper trial court to use in assessing whether the
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`reasoning or methodology underlying expert testimony is scientifically valid and whether the
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`reasoning or methodology properly can be applied to the facts in issue: (1) whether a theory or
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`technique “can be (and has been) tested:” (2) whether the theory “has been subjected to peer
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`review and publication,” (3) a consideration of the “known or potential known rate of error,” (4)
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`“the existence and maintenance of standards controlling the technique’s operation,” and (5)
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`whether there is ‘general acceptance’ of the theory within the relevant scientific community.”5
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`Even if the expert is qualified and the testimony is reliable, “testimony which does not
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`relate to any issues in the case is not relevant and, ergo, not helpful.”6 That is, the testimony must
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`1 Maryland Cas. Co. v. Therm-O-Disc, Inc., 137 F.3rd. 780. 783 (4th Cir. 1998)
`2 Fed. R. Evid. 702
`3 Id.
`4 Daubert, 509, U.S. at 589.
`5 Id. At 593-94.
`6 In re Ethicon, Inc., Pelvic Repair Sys. Products Liab. Litig., 2:12-MD-02327, 2014, WL 186872 (S.D.W. Va. Jan.
`15, 2014) reconsideration denied, 212-MD-02327, 2014, WL 457544 (S.D.W. Va. Feb. 3, 2014).
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`
`6
`________________________________________________________________
`PLAINTIFF’S OMNIBUS MOTION TO STRIKE THE TESTIMONY OF DEFENDANT’S CASE SPECIFIC EXPERTS
`
`
`

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`Case 3:16-md-02741-VC Document 12891 Filed 04/02/21 Page 7 of 11
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`“fit” both expert’s qualifications and the case and there must be a “valid scientific connection to
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`the pertinent inquiry as a precondition to admissibility.”7
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`Federal Rule of Civil Procedure 26(a)(2) obligates an expert witness to produce a written
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`report disclosing the expert’s complete opinion, the reasons for them, as well as any exhibits that
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`will be used to support them at the time of disclosure, as ordered by the court.8 26(b)(4) states
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`that a party “may depose any person who has been identified as an expert whose opinions may
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`be presented at trial.”9 When a party fails to comply with their discovery obligations, Federal
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`Rule of Civil Procedure 37 permits a court to sanction that party.10 Under the Federal Rules,
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`when a party fails to timely disclose an expert witness or provide information “the party is not
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`allowed to use that information or witness to supply evidence . . . at trial, unless the failure was
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`substantially justified or harmless.”11 The party who fails to disclose the witness has the burden
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`of establishing that the failure was substantially justified or harmless.12 “For the sanction of
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`exclusion to apply, Rule 37(c)(1) does not require a finding of bad faith or callous disregard of
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`the discovery rules.”13 “[T]he Federal rules impose an ‘automatic sanction’ of exclusion of a
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`party’s expert witness for failure to adhere to the expert witness requirements set forth in rule
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`26(a).”14
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`Failure to comply with discovery protocol is also considered a sanctionable offense under
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`the Federal Rules.15 To assess appropriate sanctions under this Rule, a court may consider, inter
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`7 Id.
`8 Fed. R. Civ. P. 26(a)(2).
`9 Fed. R. Civ. P. 26(a)(4).
`10 See Fed. R. Civ. P 37(b)(2).
`11 Fed. R. Civ. P. 37(c) (1).
`12 Hoyle v. Freightliner, LLC, 650 F.3d 321, 329 (4th Cir. 2011).
`13 Id. At 330.
`14 Campbell v. U.S., 470 Fed. Appx. 153, 156 (4th Cir. 2012)(per curiam)(internal quotation omitted).
`15 Fed,. R. Civ. P. 37(b)(2)
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`
`7
`________________________________________________________________
`PLAINTIFF’S OMNIBUS MOTION TO STRIKE THE TESTIMONY OF DEFENDANT’S CASE SPECIFIC EXPERTS
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`
`

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`Case 3:16-md-02741-VC Document 12891 Filed 04/02/21 Page 8 of 11
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`alia: (1) whether the noncomplying party acted in bad faith; (2) the amount of prejudice caused
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`by the noncompliance; (3) and the need for deterrence of this particular sort of noncompliance.16
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`Pursuant to Fed. R. Civ. P. 30(d)(2), “the court may impose an appropriate sanction –
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`including the reasonable expenses and attorney’s fees incurred by any party – on a person who
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`impedes, delays, or frustrates the fair examination of the deponent.”
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`The plain language of Rule 30(d)(2) indicates that the Court's inquiry is twofold. First,
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`the Court must determine whether a person's behavior has impeded, delayed, or frustrated the
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`fair examination of the deponent. Fed. R. Civ. P. 30(d)(2). Second, the Court must determine an
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`appropriate sanction. Id. The Ninth Circuit provides District Courts with wide discretion to
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`fashion appropriate sanctions for discovery violations under the Federal Rules. Yeti by Molly,
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`Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001).
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`ARGUMENT
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`A. Defendant’s Violation of Federal Rules 26(a)(2), 26(b)(4) and 37 Has Significantly
`Prejudiced Plaintiffs’ Prosecution of Their Cases
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`Stripping Plaintiffs of the opportunity to depose, vet, examine, and respond to the full
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`opinions of Defendant’s case-specific experts is extremely prejudicial to the prosecution of their
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`cases. Without this ability, Plaintiffs cannot adequately prepare for trial or respond to the case-
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`specific testimony.
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`Moreover, without the ability to depose Monsanto’s case-specific experts before trial,
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`Plaintiffs have lost their ability to attack, among other things:
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`• Whether Monsanto’s case-specific experts’ theories or techniques have been tested;
`• Whether Monsanto’s case-specific experts’ theories or techniques have been subject
`to peer review or publication;
`• The known or potential rate of error of the methods used and the existence and
`maintenance of standards controlling the operation of the techniques that were used;
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`16 Wilson v. Volkswagon of America, Inc., 561 F.2d 494, 503-506 (4th Cir. 1977).
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`
`8
`________________________________________________________________
`PLAINTIFF’S OMNIBUS MOTION TO STRIKE THE TESTIMONY OF DEFENDANT’S CASE SPECIFIC EXPERTS
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`• Whether their theories or methods have been generally accepted by the scientific
`community;
`• Whether the matters to be presented were developed for litigation or developed from
`the expert’s research; and
`• Whether Monsanto’s case-specific experts considered possible alternative
`explanations, then ruled them out
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`This is not an issue that can be cured by compelling Defendant to now produce
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`Monsanto’s case-specific experts for deposition. Given the Court’s strict April 2, 2021, deadline
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`for the parties to file Daubert/Dispositive Motions, Plaintiffs have been unable to use these
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`deposition in their Daubert/Dispositive Motions.
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`Defendant’s needless delays have allowed Defendant to take unfair advantage of these
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`tight deadlines to hinder Plaintiff’s ability to fully and adequately respond to, or plead against,
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`Monsanto’s case-specific experts’ opinions by the court’s deadlines.
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`This is especially so given that Defendant has been able to depose Plaintiff’s experts,
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`while Plaintiff has not been able to do the same.
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`Plaintiff should not be punished for adhering strictly to this Court’s orders and for
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`expecting opposing counsel to do the same. However, if Defendant is allowed to use Monsanto’s
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`case-specific experts, their opinions, or their testimony as evidence in this case, that is exactly
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`what will happen. Defendant’s conduct should not be encouraged, tolerated, or ignored.
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`For these reasons, Plaintiff respectfully requests that this Court strike and exclude the
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`testimony of Monsanto’s case-specific experts and preclude Defendant from calling Monsanto’s
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`case-specific experts to present evidence at a hearing or trial in this case.
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`The Defendant’s gamesmanship should not be rewarded. Plaintiff was not given the
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`opportunity to depose the Defendant’s experts due to no feasible deposition schedule being
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`provided. Plaintiffs were not given a chance to depose the Defendant’s experts and will now be
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`severely prejudiced if the Defendant’s named experts are allowed to testify.
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`9
`________________________________________________________________
`PLAINTIFF’S OMNIBUS MOTION TO STRIKE THE TESTIMONY OF DEFENDANT’S CASE SPECIFIC EXPERTS
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`Case 3:16-md-02741-VC Document 12891 Filed 04/02/21 Page 10 of 11
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`Plaintiff respectfully requests this Honorable Court exclude the expert testimony of
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`Defendant’s case specific experts as to avoid severe prejudice to Plaintiffs. Plaintiffs’ also
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`request appropriate sanctions on Defendant as Defendant impeded and frustrated the fair
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`examination of the Defendant’s case-specific experts by the Plaintiffs.
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`WHEREFORE, Plaintiff respectfully requests this Honorable Court exclude the expert
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`testimony of Defendants’ case specific experts and such further relief as this Court finds
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`By:
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`Respectfully submitted,
`/s/ Rebecca Fredona
`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
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`equitable and just.
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`DATED: April 2, 2021
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`PLAINTIFF’S OMNIBUS MOTION TO STRIKE THE TESTIMONY OF DEFENDANT’S CASE SPECIFIC EXPERTS
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`Case 3:16-md-02741-VC Document 12891 Filed 04/02/21 Page 11 of 11
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`CERTIFICATE OF SERVICE
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`I HEREBY CERTIFY that on April 2, 2021, a copy of the foregoing was filed with the
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`Clerk of the Court through the CM/ECF system which sent notice of the filing to all appearing
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`parties of record.
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`/s/Rebecca Fredona
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`PLAINTIFF’S OMNIBUS MOTION TO STRIKE THE TESTIMONY OF DEFENDANT’S CASE SPECIFIC EXPERTS
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