Case 3:16-md-02741-VC Document 13498 Filed 08/17/21 Page 1 of 7
`
`
`
`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
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`
` 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
`
`BRYAN CAVE LEIGHTON PAISNER LLP
`K. Lee Marshall (CA Bar No. 277092)
`(klmarshall@bclplaw.com)
`Three Embarcadero Center, 7th Floor
`San Francisco, CA 94111
`Tel: 415-675-3400
`Fax: 415-675-3434
`
`Jed P. White (CA Bar No. 2392339)
`(jed.white@bclplaw.com)
`120 Broadway, Suite 300
`Santa Monica, CA 90401
`Tel: 310-576-2100
`Fax: 310 -576-2200
`
`IN RE: ROUNDUP PRODUCTS
`LIABILITY LITIGATION,
`
`La Yuanda Denkins v. Monsanto Co.,
`3:20-cv-03301-VC
`
`
`
` MDL No. 2741
`
`Case No. 3:16-md-02741-VC
`
`MONSANTO COMPANY’S NOTICE OF
`MOTION AND MOTION FOR SUMMARY
`JUDGMENT ON CAUSATION GROUNDS
`
`Hearing:
`Date: September 30, 2021
`Time: 2:00 p.m.
`Place: Courtroom 4
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`MONSANTO’S MOTION FOR SUMMARY JUDGMENT
`
`

`

`Case 3:16-md-02741-VC Document 13498 Filed 08/17/21 Page 2 of 7
`
`
`
`TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD:
`PLEASE TAKE NOTICE THAT on September 30, 2021, at 2:00 pm 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 move this Court for an order, pursuant to Federal Rule of Civil Procedure 56(c), entering
`judgment in its favor and against Wave 3 Plaintiff La Yuanda Denkins (“Plaintiff”), on the grounds
`that there is no genuine issue of material fact as to any claim for relief brought by the Plaintiff, and
`Monsanto is entitled to summary judgment.
`
`Dated: August 17, 2021
`
`Respectfully submitted,
`
`
`
`
`
`
`
`
`
`
`
`
`
`/s/ Jed P. White
`Jed P. White
`Attorneys for Defendant Monsanto Company
`
`1
`MONSANTO’S MOTION FOR SUMMARY JUDGMENT
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`Case 3:16-md-02741-VC Document 13498 Filed 08/17/21 Page 3 of 7
`
`
`
`MEMORANDUM OF POINTS AND AUTHORITIES
`“Products liability cases are quintessentially expert cases, and failure to designate experts
`almost always leads to summary judgment.” Martinez v. Ethicon Inc., No. 7:19-cv-00164, 2020 U.S.
`Dist. LEXIS 77635, *4-5 (S.D. Tex. May 1, 2020).
`To prevail on any of her claims, Plaintiff La Yuanda Denkins (“Plaintiff”) must prove that
`Roundup was the proximate cause of her cancer. Whether Roundup—a chemical compound—is
`defective, can cause cancer generally, and whether it actually did cause Plaintiff’s cancer
`specifically, are specialized issues for which expert testimony is required. Plaintiff failed to disclose
`any expert reports regarding specific causation, which were due June 29, 2021. Without expert
`testimony to prove specific causation, none of Plaintiff’s claims may proceed.
`BACKGROUND
`Plaintiff is a resident of Texas who alleges that exposure to Monsanto’s Roundup®-branded
`herbicides (“Roundup”) caused her to develop cancer. See Complaint (ECF 1-1) ¶ 12. Plaintiff was
`diagnosed with small B-cell Lymphoma in 2019. See id. at ¶ 114. Plaintiff seeks to hold Monsanto
`responsible for her cancer, asserting three claims: (1) negligence; (2) strict liability; and (3) breach
`of implied warranty. The lynchpin of Plaintiff’s claims is that glyphosate—the active-ingredient in
`Roundup—caused her cancer and that Monsanto should have included cancer warnings on those
`products. See id at ¶¶ 9-14, 21.
`On December 9, 2020, this MDL Court required all Wave 3 plaintiffs to submit expert
`reports no later than June 29, 2021. See Order Granting Joint Request for Revised Schedule for
`Wave 3 Cases and Addition of Cases to Wave 3 as Modified (“Wave 3 Scheduling Order”)(MDL
`ECF #12197). The expert discovery required by this Order must be accompanied by written reports
`signed by the experts and must contain “a complete statement of all opinions the witnesses will
`express and the basis and reasons for them,” among other information. Fed. R. Civ. P.
`26(a)(2)(B)(i).
`Plaintiff did not submit an expert report regarding specific causation by the June 29, 2021
`deadline. Specifically, Plaintiff has not served any expert report containing case-specific evidence
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`1
`MONSANTO’S MOTION FOR SUMMARY JUDGMENT
`
`

`

`Case 3:16-md-02741-VC Document 13498 Filed 08/17/21 Page 4 of 7
`
`
`
`of a causal link between Roundup exposure and Plaintiff’s cancer. (Declaration of Jed White
`(“White Decl.”), ¶ 3.)
`
`SUMMARY JUDGMENT STANDARD
`Summary judgment is appropriate when there is “no genuine dispute as to any material fact
`and the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is
`material when it could affect the outcome of the case, and a dispute about a material fact is genuine
`“if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
`Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Once the moving party has met its
`burden, the nonmoving party must come forward with evidence to show there is a genuine issue for
`trial. In re Korean Ramen Antitrust Litig., 281 F. Supp. 3d 892, 899 (N.D. Cal. 2017). A “complete
`failure of proof concerning an essential element of the nonmoving party’s case” warrants summary
`judgment and “necessarily renders all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S.
`317, 323 (1986).
`
`I.
`
`ARGUMENT
`SUMMARY JUDGMENT IS REQUIRED BECAUSE PLAINTIFF LACKS THE
`REQUIRED ADMISSIBLE EXPERT TESTIMONY ON CAUSATION
`“Whether expert testimony is necessary to prove a matter or theory is a question of law.”
`Martinez v. Medical Depot, Inc., 434 F. Supp. 3d 537, 556 (S.D. Tex. 2020).1 “Under Texas law,
`expert testimony is generally encouraged if not required to establish a products liability claim.”
`Martinez v. Ethicon Inc., 2020 U.S. Dist. LEXIS 77635, *5 (S.D. Tex. May 1, 2020). Thus, “failure
`to designate experts almost always leads to summary judgment” in a products liability case. Id.
`(emphasis added). For expert testimony to not be required in a products liability case, the product
`itself “must be relatively uncomplicated, and the implications . . . such that a layman could readily
`
`
`1 Texas substantive law applies because it is the transferor forum. In re Vioxx Prods. Liab. Litig.,
`478 F. Supp. 2d 897, 903 (E.D. La. 2007) (for cases, “filed in, or removed to, federal courts across
`the country and transferred to the MDL court by the Judicial Panel on Multidistrict Litigation,” …
`“the MDL court must apply the law of the transferor forum, that is, the law of the state in which the
`action was filed, including the transferor forum's choice-of-law rules”) citing Ferens v. John Deere
`Co., 494 U.S. 516, 524, 110 S. Ct. 1274, 108 L. Ed. 2d 443 (1990).
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`2
`MONSANTO’S MOTION FOR SUMMARY JUDGMENT
`
`

`

`Case 3:16-md-02741-VC Document 13498 Filed 08/17/21 Page 5 of 7
`
`
`
`grasp them.” Id. (citing Stewart v. Capital Safety USA, 867 F.3d 517, 521 (5th Cir. 2017)). “For
`the most part, the ‘Supreme Court of Texas has consistently required expert testimony and objective
`proof to support a jury finding that a product defect caused the plaintiff’s condition.’” Id. (quoting
`Martinez v. Med. Depot, Inc., 434 F. Supp. 3d at 556); see also Fitzgerald v. Manning, 679 F.2d
`341, 350 (4th Cir. 1982) (“expert testimony is usually necessary to support the conclusion as to
`causation” where the cause of the alleged injury is “‘determinable only in the light of scientific
`knowledge’”).
`Here, Plaintiff alleges that she was diagnosed with small B-Cell Lymphoma (a type of non-
`Hodgkin’s Lymphoma (“NHL”)) in 2019, which she claims was caused by her exposure to
`Roundup. See Complaint (ECF 1-1) ¶¶ 12, 114. NHL is a highly diverse group of blood cancers
`classified into more than 60 distinct subtypes and is the seventh most common cancer. The cause of
`most NHL cases is not known.2 “With cancer the question of causation is especially troublesome .
`. . it is frequently difficult to determine the nature and cause of a particular cancerous growth.” Jones
`v. Ortho Pharm. Corp., 163 Cal. App. 3d 396, 403 (1985). As a result, “the unknown and mysterious
`etiology of cancer is beyond the experience of laymen and can only be explained through expert
`testimony.” Id. Thus, as a matter of Texas law, the “causal link” between Plaintiff’s alleged injury
`and Roundup is “beyond the jury’s common understanding.” Kallassy v. Cirrus Design Corp., No.
`3:04-CV-0727, 2006 U.S. Dist. LEXIS 34347, *17-18 (N.D. Tex. May 30, 2006), aff’d, 265 F.
`App’x 165 (5th Cir. 2008).
`Plaintiff’s deadline to disclose expert reports was June 29, 2021. See Wave 3 Scheduling
`Order (MDL ECF #12197). To date, Plaintiff has not disclosed a single expert witness or report
`regarding specific causation. Plaintiff had ample time and opportunity to satisfy her expert
`disclosure obligations under Rule 26(a)(2) and the Wave 3 Scheduling Order. And honoring strict
`deadlines in an MDL is particularly important.
` See Allen v. Bayer Corp. (In re:
`
`
`2 See generally NIH, Cancer Stat Facts: Non-Hodgkin Lymphoma, https://seer.cancer.gov/
`statfacts/html/nhl.html; NIH, Adult NHL Treatment,
`https://www.cancer.gov/types/
`lymphoma/patient/adult-nhl-treatment-pdq#section/all; Leukemia & Lymphoma Society, NHL,
`https://www.lls.org/lymphoma/non-hodgkinlymphoma?src1=20045&src2=.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`3
`MONSANTO’S MOTION FOR SUMMARY JUDGMENT
`
`

`

`Case 3:16-md-02741-VC Document 13498 Filed 08/17/21 Page 6 of 7
`
`
`
`Phenylpropanolamine (PPA) Prods. Liab. Litig.), 460 F.3d 1217, 1222 (9th Cir. 2006) (affirming
`dismissal of cases in MDL for failure to comply with case management orders because “multidistrict
`litigation is different because of the large number of cases that must be coordinated, its greater
`complexity, and the court’s statutory charge to promote the just and efficient conduct of the
`actions”).
`As a result of her failure to disclose any expert on the issue of specific causation, Plaintiff
`cannot prove causation—an essential element of each of Plaintiff’s claims. Plaintiff’s strict liability
`design defect and failure to warn claims require such expert causation proof. Sims v. Kia Motors,
`Inc., 839 F.3d 393, 409 (5th Cir. 2016) (Texas law) (“expert testimony is crucial in establishing that
`the alleged design defect caused the injury”); Ackermann v. Wyeth Pharm., 526 F.3d 203, 208 (5th
`Cir. 2008) (in Texas, a failure to warn claim requires a showing that “the failure to warn was a
`producing cause of the injury”); Gerber v. Hoffman-La Roche Inc., 392 F. Supp. 2d 907, 922 (S.D.
`Tex. 2005) (manufacturing defect claim requires proof that “the defect was the producing cause of
`the plaintiff’s injuries”).
`Lack of causation proof also defeats Plaintiff’s negligence claim. Gerber, 392 F. Supp. 2d
`at 923 (holding that where judgment was proper as to strict liability claims of failure to warn, design
`defect, and manufacturing defect, judgment was also proper as to negligence claims related to the
`same); see also Horak v. Pullman, Inc., 764 F.2d 1092, 1095 (5th Cir. 1985) (“Whether applying
`the law of strict liability or negligence, Texas law requires that the defect or the negligent actions
`must be a producing cause and proximate cause” of the alleged injury.).
`Plaintiff’s claim for breach of implied warranty also requires proof of case-specific causation
`as it is merely a re-stated failure to warn claim. Emerson v. Johnson & Johnson, 2019 WL 764660,
`*3 (S.D. Tex. Jan. 22, 2019) (“[w]here breach of warranty and fraud claims are functionally identical
`to strict liability and negligence-based product liability claims, the breach of warranty and fraud
`claims are properly disposed of along with the strict liability and negligence-based product liability
`claims when the plaintiff fails to produce expert testimony on causation.”).
`All of Plaintiff’s claims require proof that Monsanto’s product caused her alleged injury.
`Without any evidence of case-specific causation, Monsanto is entitled to summary judgment on all
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`4
`MONSANTO’S MOTION FOR SUMMARY JUDGMENT
`
`

`

`Case 3:16-md-02741-VC Document 13498 Filed 08/17/21 Page 7 of 7
`
`
`
`Plaintiff’s claims. See e.g., Martinez v. Ethicon Inc., 2020 U.S. Dist. LEXIS 77635, *4-5 (S.D.
`Tex. May 1, 2020) (granting MSJ on all of plaintiffs’ claims due to plaintiff’s failure to designate
`experts); Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 196¬197 (4th Cir. 2001) (affirming
`dismissal of product liability claims where appellant “had no admissible medical evidence indicating
`that [defendant’s] device was the proximate cause of his injuries”); Jones v. Danek Med., Inc., No.
`Civ. A. 4:96-3323-12, 1999 WL 1133272, at *5 (D.S.C. Oct. 12, 1999) (“There being no expert
`testimony regarding causation, summary judgment is granted on the products liability allegations.”).
`CONCLUSION
`For the foregoing reasons, Monsanto is entitled to summary judgment on Plaintiff’s claims.
`
`Dated: August 17, 2021
`
`Respectfully submitted,
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`/s/ Jed P. White
`Jed P. White
`Attorneys for Defendant Monsanto Company
`
`5
`MONSANTO’S MOTION FOR SUMMARY JUDGMENT
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`