Document for Mark Jon Rogers vs Monsanto Company

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                                ELECTRONICALLY FILED
                                                       Superior Court of California
                                                       County of Santa Barbara
                                                       Darrel E. Parker, Executive Officer
1    Jessica L. Grant (SBN: 178138)                    7/1/2024 1:24 PM
     John K. Sherk (SBN 295838)                        By: Narzralli Baksh , Deputy
2    Kara M. Flageollet (SBN 347646)
     SHOOK, HARDY & BACON L.L.P.
3    555 Mission Street, Suite 2300
     San Francisco, California 94105
4    Tel: (415) 544-1900 | Fax: (415) 391-0281
     jgrant@shb.com
5    jsherk@shb.com
     kflageollet@shb.com
6
     Jason Zager (admitted pro hac vice)
7    SHOOK, HARDY & BACON L.L.P.
     2555 Grand Boulevard
8    Kansas City, MO 64108
     Tel: (816) 474-6550 | Fax: (816) 421-5547
9    jzager@shb.com

10   Attorneys for Defendant
     MONSANTO COMPANY
11

12

13
                         SUPERIOR COURT OF THE STATE OF CALIFORNIA
14
                                 FOR THE COUNTY OF SANTA BARBARA
15

16   MARK JON ROGERS,                              Case No. 23CV00945

17                  Plaintiff,                     MONSANTO COMPANY’S OPPOSITION
                                                   TO PLAINTIFF’S MOTION IN LIMINE
18          v.                                     NO. 27 TO EXCLUDE CERTAIN
                                                   REFERENCES TO LUOPING ZHANG,
19   MONSANTO COMPANY,                             PH.D

20                  Defendant.                     Date: July 10, 2024
                                                   Time: 10:00 am
21                                                 Dept.: 3
                                                   Judge: Honorable Thomas Anderle
22
                                                   Filed concurrently herewith: Declaration of
23                                                 Jessica L. Grant; Exhibits

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                 MONSANTO COMPANY’S OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO. 27
1    I.     Introduction
2           Plaintiff seeks to limit Monsanto’s ability to rebut a 2019 study on which one of his experts,
3    Dr. Kristan Aronson, heavily relies. The study in question was published by several scientists
4    including Dr. Luoping Zhang, an adjunct professor-emeritus of toxicology at the University of
5    California, Berkeley’s School of Public Health, who has served as an expert witness for plaintiffs in
6    Roundup lawsuits. Plaintiff’s motion seeks to prevent Monsanto from arguing (i) “that Dr. Zhang
7    had already been retained as an expert witness in Roundup-related litigation when she co-authored
8    and published the 2019 study”; (ii) “that [Dr. Zhang] was somehow influenced by plaintiff’s counsel
9    prior to the publication of her study”; or (iii) “that [Dr. Zhang] has been retained as an expert witness
10   by other counsel in any Roundup litigation at all.” Pl.’s Mot. 5. Contrary to plaintiff’s assertions
11   (Pl.’s Mot. at 5), Monsanto has no intention of misrepresenting the facts. But given the importance
12   of Dr. Zhang’s 2019 meta-analysis to Dr. Aronson’s opinions (and by extension, to plaintiff’s theory
13   of general causation), Monsanto is entitled to probe Dr. Zhang’s credibility and the credibility of the
14   2019 meta-analysis she co-authored.
15          Monsanto must be permitted to provide the jury with the full picture of the 2019 Zhang study
16   on which Dr. Aronson relies given the precariousness of the underlying science. EPA has assessed
17   and rejected the science supporting Dr. Zhang’s 2019 meta-analysis. And more recently, on June
18   20, 2024, Judge Vince Chhabria—who has been overseeing the Roundup MDL for nearly a
19   decade—excluded Dr. Zhang’s opinions, holding that “Zhang’s meta-analysis is junk science.”
20   Declaration of Jessica L. Grant (“Grant Decl.”) Ex. 1 (June 20, 2024 Order Granting Motion to
21   Exclude Dr. Luoping Zhang at 1, In re Roundup Prods. Liab. Litig., No. 16-md-02741 (N.D. Cal.)).
22          Simply put, the jury is entitled to hear (i) that Dr. Zhang co-authored a study used by
23   plaintiff’s lawyers in Roundup cases before becoming a plaintiff’s expert herself, and (ii) that the
24   study she co-authored was rejected by EPA and deemed “junk science” by a federal district court
25   judge. See, e.g. CACI No. 219 (explaining that jury does “not have to accept an expert’s opinion”
26   and, “[i]n deciding whether to believe an expert’s testimony,” the jury “should consider,” among
27   other things “[t]he facts the expert relied on” and “[t]he reasons for the expert’s opinion”); CACI
28   No. 221 (“If the expert witnesses disagreed with one another, you should weigh each opinion against


                MONSANTO COMPANY’S OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO. 27
1    the others. You should examine the reasons given for each opinion and the facts or other matters that

2    each witness relied on. You may also compare the experts’ qualifications.”). Clearly, if plaintiff’s

3    expert witnesses rely on Dr. Zhang’s 2019 study, Monsanto is allowed to fully cross examine those

4    experts as to the numerous flaws in Dr. Zhang’s study that render it unreliable.

5    II.    Background

6           In 2019, Dr. Zhang co-authored a meta-analysis which purported to examine whether

7    Glyphosate-based herbicide (“GBH”) exposure increases the risk of developing NHL. This paper

8    found: “GBH exposure is associated with increased risk of NHL in humans. . . . However, given the

9    heterogeneity between the studies included, the numerical risk estimates should be interpreted with

10   caution.” See Grant Decl., Ex. 2 (Zhang, et. al., Exposure to glyphosate-based herbicides and risk

11   for non-Hodgkin lymphoma: A meta-analysis and supporting evidence (2019)) at 204. The EPA

12   examined Dr. Zhang’s 2019 Paper and found serious methodological flaws therein. Specifically,

13   EPA found that Dr. Zhang and her co-authors did not use “appropriate methods to perform their

14   meta-analyses” because they “did not include an ever/never estimate” and instead only compared

15   patients with higher NHL exposure levels to those with lower NHL exposure levels. See Grant Decl.,

16   Ex. 3 (EPA 1/6/2020 Memo.) at 12-13. The EPA concluded that a properly conducted meta-analysis

17   would have found “lower and non-statistically significant meta-estimates.” Id. at 12. Therefore, EPA

18   concluded that that Dr. Zhang’s 2019 paper did not change its assessment of Glyphosate’s non-

19   carcinogenicity, and EPA maintained its assessment that Glyphosate is “not likely to be carcinogenic
20   to humans.” Id. at 13. In other words, the EPA found that Dr. Zhang’s 2019 meta-analysis did not

21   support general causation. This critique notwithstanding, plaintiffs in Roundup cases around the

22   country continue to rely heavily on Dr. Zhang’s 2019 paper.

23          Recently, Judge Chhabria, who has presided over the Roundup MDL for years, granted

24   Monsanto’s motion to exclude Dr. Zhang’s expert opinions. Grant Decl., Ex. 1 (June 20, 2024 Order

25   Granting Motion to Exclude Dr. Luoping Zhang, In re Roundup Prods. Liab. Litig., No. 16-md-

26   02741 (N.D. Cal.)). Judge Chhabria ruled that “[t]here are several issues with [Dr. Zhang’s] opinion,

27   each of which is an independent ground for exclusion.” Grant Decl., Ex. 1 (June 20, 2024 Order

28   Granting Motion to Exclude Dr. Luoping Zhang, In re Roundup Prods. Liab. Litig., No. 16-md-
                                                       3
                MONSANTO COMPANY’S OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO. 27
1    02741 (N.D. Cal.)) at 1. Judge Chhabria wrote: “The most fundamental problem with Zhang’s

2    testimony is that her meta-analysis was not reliably performed. It has several methodological

3    problems that, when taken together, make its analysis of the epidemiological literature indefensible.”

4    Grant Decl., Ex. 1 (June 20, 2024 Order Granting Motion to Exclude Dr. Luoping Zhang, In re

5    Roundup Prods. Liab. Litig., No. 16-md-02741 (N.D. Cal.)) at 4. Judge Chhabria explained that in

6    determining whether to admit Dr. Zhang’s opinions, “one also has to ask whether the meta-analysis

7    is a reliable approach to answering the question: ‘Does Roundup cause NHL in humans?’” Judge

8    Chhabria concluded that Dr. Zhang’s 2019 meta-analysis is not a reliable approach to answering that

9    question:
                    Zhang concludes that there is a compelling link between exposures to
10                  glyphosate-based herbicides and increased risk for NHL. Similarly, the
11                  study’s key figure, the 1.41 meta-risk ratio, is described as
                    underscoring the fact that exposure to GBHs is associated with an
12                  increased risk of NHL. But saying there is a ‘compelling link’ or an
                    ‘association’ isn’t the same as saying that Roundup is capable of
13                  causing NHL in humans—which is what a plaintiff’s general causation
                    evidence must enable the jury to conclude.
14

15   Grant Decl., Ex. 1 (June 20, 2024 Order Granting Motion to Exclude Dr. Luoping Zhang, In re
16   Roundup Prods. Liab. Litig., No. 16-md-02741 (N.D. Cal.)) at 9 (internal citations and quotations
17   omitted).
18   III.   Argument
19          As an initial matter, Monsanto has no intention of misrepresenting facts about when
20   plaintiff’s lawyers first retained Dr. Zhang or inviting witnesses to speculate about Dr. Zhang’s
21   motivations and biases.
22          Monsanto suspects, however, that “misrepresentations” about when Dr. Zhang was hired by
23   plaintiffs’ counsel as an expert witness are not the thrust of plaintiff’s motion. Instead, plaintiff seeks
24   to prevent Monsanto from eliciting critical evidence about the bases and biases underlying the single
25   most important study plaintiff will present to prove general causation. Even though Dr. Zhang is not
26   a disclosed expert witness in this case, one of the experts who has been disclosed in this case, (Dr.
27   Aronson) relies extensively on Dr. Zhang’s 2019 meta-analysis. See, e.g., Grant Decl., Ex. 4 (Dr.
28   Kristan Aronson’s December 15, 2023 Expert Report entitled General cancer causation for
                                               4
                 MONSANTO COMPANY’S OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO. 27
1    exposure to glyphosate and glyphosate formulations in the case styled Brazell v. Monsanto, No.

2    1922-CC11327 (Mo. Cir. Ct., St. Louis Cnty.)) at 62, 63, 84, 85, 86, 87. Monsanto is entitled to

3    cross-examine Dr. Aronson about the bases of her opinions. People v. Sanchez (2016) 63 Cal.4th

4    665, 675 (“The jury is not required to accept an expert’s opinion. The final resolution of the facts at

5    issue resides with the jury alone.”). A witness’ bias—financial or otherwise—is always relevant.

6    See, e.g., CACI No. 107 (“Did the witness have any reason to say something that was not true? For

7    example, did the witness show any bias or prejudice or have a personal relationship with any of

8    the parties involved in the case or have a personal stake in how this case is decided?”) (emphases

9    added). If Dr. Aronson or any other plaintiff’s expert relies on Dr. Zhang’s 2019 study, Monsanto

10   must be able to fully cross-examine the witness on the unreliability and bias of Dr. Zhang’s 2019

11   study. Otherwise, the jury will be unable to assess the credibility of Dr. Aronson’s opinions. Id.

12   (“The jury may also reject an opinion because it finds the expert lacks credibility as a witness.”).

13          As with the majority of plaintiff’s motions in limine, plaintiff seeks the following relief:

14   permit plaintiff to introduce evidence that support his claims but block Monsanto from rebutting

15   those claims with the exact same type of evidence. Specifically, plaintiff wants his experts to tell the

16   jury that Glyphosate/Roundup cause cancer based in part on Dr. Zhang’s 2019 study, and then

17   preclude Monsanto from challenging that claim by establishing the many flaws that render Dr.

18   Zhang’s 2019 study unreliable. The purpose of a motion in limine is to exclude irrelevant or unduly

19   prejudicial evidence, not to create an uneven playing field.
20   IV.    Conclusion

21          For the foregoing reasons, the Court should deny plaintiff’s Motion in limine No. 27.

22   Dated: July 1, 2024                        Respectfully submitted,

23
                                                SHOOK, HARDY & BACON L.L.P.
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                                                By:______________________ ____
26                                                    Jessica L. Grant

27                                                      Attorneys for Defendant
                                                        MONSANTO COMPANY
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                MONSANTO COMPANY’S OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO. 27