Case 3:16-md-02741-VC Document 12897 Filed 04/02/21 Page 1 of 6
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`Rhon E. Jones (JON093)
`rhon.jones@beasleyallen,.com
`William R. Sutton (SUT013)
`william.sutton@beasleyallen.com
`BEASLEY, ALLEN, CROW, METHVIN,
` PORTIS & MILES, P.C.
`Post Office Box 4160
`218 Commerce Street
`Montgomery, Alabama 36103
`Phone: (334) 269-2343
`Fax: (334) 954-7555
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`Attorneys for Plaintiff
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`IN RE: ROUNDUP PRODUCTS LIABILITY
`LITIGATION
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`This document relates to:
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN FRANCISCO DIVISION
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`MDL NO. 2741
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`Case No. MDL No. 3:16-md-02741-VC
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`PLAINTIFF’S RESPONSE IN
`OPPOSITION TO DEFENDANT
`MONSANTO COMPANY’S MOTION
`TO EXCLUDE TESTIMONY OF
`PLAINTIFF’S EXPERT BARRY BOYD
`UNDER RULE 702
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`Randall Dean Seidl v Monsanto Co.,
`Case No. 3:17-cv-00519-vc
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`PRELIMINARY STATEMENT
`I.
`Monsanto groups three of the Wave Two specific causation experts together in its motion,
`however, this response in opposition only addresses the arguments made against Mr. Seidl’s
`specific causation expert, Dr. Barry Boyd, as Mr. Seidl did not disclose Dr. Lauren Pinter-Brown
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`and Dr. Ron Schiff.0F
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`1 This responds to Document 23 and Document 12789.
`PLAINTIFF’S OPPOSITION TO MOTION TO EXCLUDE TESTIMONY OF BARRY BOYD UNDER RULE 702
`3:17-cv-00519-vc and 3:16-md-02741-VC
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`Case 3:16-md-02741-VC Document 12897 Filed 04/02/21 Page 2 of 6
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`Monsanto’s arguments in the instant motion rehash previously failed arguments framed as
`a “new” motion and under a misplaced standard from inapplicable case law. Monsanto does not
`dispute that the Plaintiffs’ experts may use the differential etiology method upheld by the Ninth
`Circuit and this Court as the basis for their opinions (PTO 85 at p. 2), or that the experts misuse
`the studies. Instead, Monsanto continues to argue that Dr. Boyd’s opinions should be excluded
`because: (1) they fail to reliably consider and rule out other potential causes of NHL and (2) they
`fail to address idiopathy. Despite the new packaging, Monsanto’s core arguments remain the same,
`and as before, must still fail.
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`II.
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`DR. BOYD PROPERLY ASSESSED POTENTIAL ALTERNATIVE
`CAUSES FOR PLAINTIFF RANDALL SEIDL
`Monsanto regurgitates the same argument this Court rejected in Docket No. 2799, Pretrial
`Order No. 85, this time pertaining to Dr. Boyd’s evaluation of Mr. Seidl. The result should be no
`different here. In the Court’s prior order, the Court noted “under Ninth Circuit case law, doctors
`2 “It is
`enjoy wide latitude in how they practice their art when offering causation opinions.”1F
`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
`3 Monsanto continues to argue the
`and known risk factor[]’ is the cause of that plaintiff’s disease.”2F
`expert’s “ruling out” is unreliable simply because it does not agree with Dr. Boyd’s findings, not
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`because Dr. Boyd failed to meet the standard for a proper differential diagnosis.3F
`Dr. Boyd did not causally rule out other risk factors as Monsanto claims. Rather, Dr. Boyd
`used his clinical judgment and extensive knowledge about the risk factors and still found Roundup
`to be a substantial contributing risk factor. Specifically, during his process of reviewing Mr. Seidl’s
`records, he considered and evaluated potential risks that he thought were important and relevant
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`2 The Court citing Wendell v. GlaxoSmithKline LLC, 858 F. 3d 1227, 1237 (9th Cir. 2017).
`3 Id. at 1235
`4 Monsanto has mangled Dr. Boyd’s methodology to serve its own purpose to attempt to place it at odds with Dr.
`Schiff. However, Mr. Seidl has not retained Dr. Schiff in his case so any comparison between these two methodologies
`is improper. Dr. Boyd performed a differential diagnosis to reach his conclusions. Sutton Decl., Ex. 1, at 21. Further,
`Dr. Schiff and Dr. Boyd’s methodologies focus on similar, if not the same, factors. Compare Sutton Decl., Ex. 2, at
`79:7-11 with Sutton Decl., Ex. 3, at 90:19-23.
`PLAINTIFF’S OPPOSITION TO MOTION TO EXCLUDE TESTIMONY OF BARRY BOYD UNDER RULE 702
`3:17-cv-00519-vc and 3:16-md-02741-VC
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`Case 3:16-md-02741-VC Document 12897 Filed 04/02/21 Page 3 of 6
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`to his analysis, including: age, gender, race, ethnicity, geography, family history of cancer
`including NHL and other hematological malignancies, tobacco and alcohol consumption, body
`weight and diet, infections, exposure to certain chemicals and drugs, radiation exposure,
`immunocompromised state, autoimmune diseases, Mr. Seidl’s other medical history, and non-
`glyphosate exposure. Sutton Decl., Ex. 3, at 11-14.
`Dr. Boyd provided a thorough explanation of these potential risks in both his expert report
`and his deposition, however, Monsanto only argues that Dr. Boyd did not rule out age as a potential
`risk. This, however, is once again not an accurate summary of either Dr. Boyd’s report or his
`testimony. Dr. Boyd testified that Mr. Seidl’s age reflects the duration of time for his use of
`Roundup. Sutton Decl., Ex. 2, at 98:2–21. Age and time are related when evaluating “levels of
`exposure with potentially known risk factors that may explain in some individuals why they got
`[NHL] with increasing time.” Sutton Decl., Ex. 2, 93:12 – 94:17. While Mr. Seidl’s age provides
`a slight increase in risk of developing NHL, this factor alone, according to Dr. Boyd, provides an
`extremely low risk in developing NHL and cannot fully explain the development of his lymphoma.
`Sutton Decl., Ex. 1, at p. 13.
`Lastly, Monsanto takes the position that Dr. Boyd’s expert opinion reasoning closely tracks
`experts who were excluded in Lipitor, and based on this, his opinion should be excluded. See
`Monsanto Motion at p. 17. However, as this Court has previously stated in Pretrial Order No. 85,
`the Ninth Circuit’s standard for expert opinions compared to the Fourth Circuit’s standard in
`Lipitor is much wider so “district judges . . . must account for the fact that a wider range of expert
`opinions (arguably much wider) will be admissible in this circuit.” Id. Monsanto’s misplaced and
`improper expert standard taken from another circuit is yet another reason why Monsanto’s motion
`should be denied.
`PLAINTIFFS’ EXPERTS NEED NOT EXCLUDE IDIOPATHY
`III.
`Monsanto’s “idiopathy” argument is similarly a rehash of the argument this Court also
`rejected in PTO 85. The Court wrote:
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`PLAINTIFF’S OPPOSITION TO MOTION TO EXCLUDE TESTIMONY OF BARRY BOYD UNDER RULE 702
`3:17-cv-00519-vc and 3:16-md-02741-VC
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`Case 3:16-md-02741-VC Document 12897 Filed 04/02/21 Page 4 of 6
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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 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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`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).
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`Here, Dr. Boyd followed the same methodology as those experts previously addressed by
`the Plaintiffs’ Bellwether experts. Specifically, Dr. Boyd relies heavily on Mr. Seidl’s exposure
`levels in drawing his conclusion that Mr. Seidl had no other significant risk factors and was
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`PLAINTIFF’S OPPOSITION TO MOTION TO EXCLUDE TESTIMONY OF BARRY BOYD UNDER RULE 702
`3:17-cv-00519-vc and 3:16-md-02741-VC
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`Case 3:16-md-02741-VC Document 12897 Filed 04/02/21 Page 5 of 6
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`Respectfully submitted,
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`exposed to enough glyphosate to conclude that it was a substantial factor in causing Mr. Seidl’s
`NHL. Monsanto’s Motion should be denied.
`IV. Conclusion
`For the foregoing reasons, Plaintiff moves the Court to deny Monsanto’s Motion to
`Exclude Dr. Boyd.
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`DATED: April 2, 2021
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`/s/William R. Sutton
`Rhon E. Jones (JON093)
`William R. Sutton (SUT013)
`BEASLEY, ALLEN, CROW,
`METHVIN, PORTIS & MILES, P.C.
`218 Commerce Street
`Montgomery, AL 36104
`Telephone: (334) 269-2343
`Fax: (334) 954-7555
`rhon.jones@beasleyallen.com
`william.sutton@beasleyallen.com
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` Attorneys for Plaintiff
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`PLAINTIFF’S OPPOSITION TO MOTION TO EXCLUDE TESTIMONY OF BARRY BOYD UNDER RULE 702
`3:17-cv-00519-vc and 3:16-md-02741-VC
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`Case 3:16-md-02741-VC Document 12897 Filed 04/02/21 Page 6 of 6
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`CERTIFICATE OF SERVICE
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`I hereby certify that on the 2nd day of April, 2021, I electronically filed the foregoing with
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`the Clerk of the United States District Court for the Northern Division of California via the Court’s
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`CM//ECF Filing System, which shall send electronic notification to counsel of record.
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`/s/ William R. Sutton
`William R. Sutton
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`PLAINTIFF’S OPPOSITION TO MOTION TO EXCLUDE TESTIMONY OF BARRY BOYD UNDER RULE 702
`3:17-cv-00519-vc and 3:16-md-02741-VC
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