David Jacobs Plaintiff vs. Monsanto Company, et al Defendant, CACE19013224, 06-30-2023_Motion in Limine-1 (Fla. 17th Cir. Ct. Jun. 30, 2023) (2024)

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`connotation with jurors,would also be prejudicial,confuse the issues at trial,and constitute
`
`CASE NO- CACE 19-013224
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`improper character evidence.
`
`II.
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`BARKGROIJNI)
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`Roundup productsare available for purchase in both pre-mixed,diluted formulations that
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`are "ready-to-use"off the shelf,and in concentrated formulations that requirethe user to mix the
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`Roundup concentrate with water and sometimes other ingredientsprior to use. During his
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`deposition,Plaintiff admitted that he did not use Roundup in its concentrated form. Ex. A,
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`Deposition ofDavid Jacobs at 73:18-22,93:6-15. The Roundup that Plaintiffused at his home was
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`always the ready-made version and did not requireany mixing. Plaintiff's only contact with
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`Roundup was what he sprayed.
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`III.
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`ARGUMENT
`
`A.
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`Products Other Than Roundup Are Not Relevant.
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`Monsanto anticipatesthat Plaintiff may attempt to introduce evidence showing that
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`Monsanto's predecessor,"old Monsanto," manufactured controversial products unrelated to the
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`Roundup productsat issue in this case. Such productscould include PCBs, which were used in
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`industrial and commercial applications,and Agent Orange, an herbicide Monsanto produced at the
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`direction of the U.S. Government for use duringthe Vietnam War. Such evidence has nothing to
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`do with the claims at issue. Plaintiff does not allegehe was injuredfrom exposure to PCBs or
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`Agent Orange; he allegeshe was injuredfrom exposure to Roundup. In product liabilitycases,
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`evidence must "pertainto the use of the same type" of product "under substantiallysimilar
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`conditions" to be relevant and admissible. Godfrey v. Precision Airmotive Corp.,46 So. 3d 1020,
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`1022 (Fla.5th DCA 2010) (holdingthat the trial court should have grantedthe defendant's pre-
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`trial motion and prohibitedplaintiffsfrom introducingevidence regardingother aircraft engines
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`CASE NO- CACE 19-013224
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`not at issue);see also Ariz. Chem. Co., LLC v. Mohawk Indus., Inc., 193 So.3d 95, 101-03 (Fla.
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`1st DCA 2016) (affirmingtrial court's exclusion of evidence of other productsmanufactured by
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`the defendant where the plaintifffailed to show any"directconnection between the other products'
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`failures" and the allegedfailures of the product at issue). Given the lack of any relevance to
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`Plaintiff's use of Roundup, reference to other products like PCBs or Agent Orange/dioxin should
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`be excluded.
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`As the Court presiding over the first Roundup trial observed, Agent Orange was
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`manufactured in the 1960s, which is "too remote in time to be relevant" today. See Ex. B, D.
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`Johnson v. Monsanto Co., CGC-16-550128, June 20, 2018 Tr. at 156:12-14 (Cal.Super.Ct. June
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`20,2018). Agent Orange also was manufactured by old Monsanto, a company that no longerexists
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`after a series of spin-offsand acquisitions.Id at 156:15-17. Like in Johnson, Courts presiding
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`over numerous other Roundup trials have granted similar motions in limine, excluding the
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`introduction of evidence about other Monsanto products at trial. See Ex. C, 3/19/19 Pilliod Order
`
`on Motions in Limine at 7 721 ("Evidencethat Monsanto manufactured Agent Orange duringthe
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`Vietnam War is not relevant and would be prejudicial.");Ex. D, Pretrial Order No. 81, In re
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`Roundup Prods. Liab. Litig.,No. 16-md-02741-VC (N.D. Cal. Feb. 18, 2019), at f 5.2; Ex. E,
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`1/24/20 Caballero Order on Motions in Limine at 59 ("Any evidence about PCBs or Agent Orange
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`would introduce productsthat are remote in time, likelyto stir animosity,and that have no bearing
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`on this case. Neither plaintiffnordefendants shall refer to products other than Roundup."); Ex. F,
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`7/28/22 AMi Order on Motions in Limine at 9 f 16; Ex. G, 12/28/22 Constantine Order on Motions
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`in Limine at 2. Plaintiffs in other Roundup trials have simply agreed discussingproductsother
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`CASE NO- CACE 19-013224
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`than Roundup is irrelevant and inadmissible. Ex. H, Stephens,CIVSB2104801, July22, 2021 Tr.
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`at 25:14-19 (Cal.Super. Ct. July22,2021).1
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`B.
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`References To Other Products Would Be Unfairlv Preiudicial And Confusing.
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`Furthermore, the above evidence also should be excluded because the costs-including
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`undue prejudice and jury confusion-outweigh any benefit of admitting the evidence. See §
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`90.403, Fla Stat, Ariz. Oem. Co., LLC 193 So. 3d at 101 (affirmingthe trial court's decision to
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`exclude evidence of other productsmanufactured by the defendant because the "probativevalue
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`would have been substantiallyoutweighed by the danger of unfair prejudiceor misleading the
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`jury");PhilipMorris USA, Inc. v. Gloger,273 So. 3d 1046, 1052 (Fla.3d DCA 2019) (holdingthe
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`trial court abused its discretion by failingto exclude evidence that would be unfairlyprejudicial);
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`Jacobs v. Atl. Coast Ref..Inc., 165 So. 3d 714,717 (Fla.4th DCA 2015) (quoting § 90.403)
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`(findingthat "[w]hatever probativevalue the [evidence] may have had was substantially
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`outweighed by the danger of unfair prejudice").
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`Any attempt to reference other Monsanto productssuch as PCBs or Agent Orange/dioxin
`
`at trial will constitute an attack on Monsanto, unfairlyportrayingit as a serial purveyor of unsafe,
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`controversial products. The only purpose of such reference would be to inflame jurors'emotions
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`and invite them to judge Monsanto based on productsnot at issue in this action. In short,counsel
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`would simply be "invitingthe jury to infer guiltbased on no more than [allegedlpriorbad acts."
`
`See In re DePuy Orthopaedics,Inc.,Pinnacle Hip Implant Prod. Liab. Litig.,%%% F.36753,7%5
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`(5thCir. 2018). This "bad character" evidence is inadmissible. See § 90.404, Fla. Stat;Thigpen
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`v. United Parcel Servs., Inc., 990 So. 2d. 693,647 (Fla.4th DCA 2008) (affirmingexclusion of
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`1 In Wyzik v. Monsanto Co., No. 21-002871 (CircuitCourt Broward Cnty.,Florida),Plaintiffs'
`counsel agreed not to introduce evidence, argument, or testimony regardingproducts other than
`Roundup.
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`CASE NO- CACE 19-013224
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`inadmissible and improper "bad character" evidence).Indeed, courts regularlydisapproveof such
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`tactics,intended to inflame jurors'emotions ofprejudiceand hostility.See Mount v. Camelot Care
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`Ctr. ofDade, Inc., 816 So. 2d 669, 670 (Fla.3d DCA 2002);Robinson v. State,520 So. 2d 1, 6
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`(Fla.1988) (holdingcounsel must not injectinsinuations into case for purpose of appealingto
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`prejudices).
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`Reference to stigmatizedchemicals such as PCBs and Agent Orange, which may trigger
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`negativememories of the Vietnam War or other events not pertinentto the litigation,may elicit
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`jurorsto decide this case based on an improper,emotional basis. To avoid such prejudice,the judge
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`in Johnson excluded references to Agent Orange, explaining"all of the subsequentlitigationand
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`findingsregarding that product, [A]gent [0]range, were so controversial that the prejudice
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`stemming from admittingany evidence regarding [A]gent [0]range far outweighs any probative
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`value with regardto anythingthat the current Monsanto is doing in this litigation."Ex. B, D.
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`Johnson Tr. at 156: 18-25; see also In re Bendectin Litig.,857 F.ld 190,311 (6th Cir. 1988)
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`(upholding"determination that references to Thalidomide would be extremelyprejudicial");Am.
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`Home Assurance Co. v. Merck & Co., Inc.,462 F. Supp. 2d 435,446 (S.D.N.Y. 2006) (excluding
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`references to the Vioxx litigationbecause "the only possiblepurpose for offeringsuch evidence
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`would be to generallyprejudicethe fact finder againstMerck through insinuations that it is a
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`careless corporate citizen").
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`References to other products also should be excluded because they would result in undue
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`consumption of time and confusion of the issues. Woodson v. Go, 166 So. 3d 231, 233 (Fla.5th
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`DCA 2015) (a trial judge is requiredto exercise reasonable control over the presentationof the
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`evidence so as to avoid the needless consumption of time). If Plaintiff is permittedto introduce
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`evidence of PCBs, Agent Orange, or other productsnot at issue in this lawsuit,Monsanto would
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`CASE NO- CACE 19-013224
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`need to counter such evidence. The result would be mini-trials about productsto which Plaintiff
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`was not exposed. This would result not only in undue consumption oftime, but also would mislead
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`thejuryor confuse the issues. The onlyproductsand warnings that the jurywill be asked to evaluate
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`are those concerningRoundup, and that is the product on which the trial should focus.
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`C.
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`References to Roundup Products Not Personallv Used bv Plaintiff are Also
`Irrelevant and Would Result in Undue Preiudice and Confusion of the Issues.
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`Because Plaintiff did not mix or otherwise handle Roundup in its concentrated form, any
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`evidence or argument associated with concentrated Roundup is irrelevant and should be excluded.
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`Godfrey,46 So. 3d at 1022. (Evidencemust"pertainto the use ofthe same type" ofproduct "under
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`substantiallysimilar conditions" to be relevant and admissible).In past Roundup cases, plaintiffs
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`have highlightedspecificallegedrisks associated with the mixing and handling of concentrated
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`Roundup. However, because Plaintiff admits he never mixed or handled Roundup concentrate and
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`only sprayed Ready-to-Use Roundup, none of these supposed specificrisks are relevant in this
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`case.
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`Further, even if some minimal probativevalue could be imagined with respect to other
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`Roundup productsthat Plaintiff did not handle, that probativevalue is substantiallyoutweighed by
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`the undue consumption oftime, confusion ofthe issues,and unfair prejudiceto Monsanto that this
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`evidence would create. See § 90.403, Fla. Stat. If specificdetails about or allegedrisks associated
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`with concentrated Roundup are admitted, Monsanto will need to introduce evidence regardingthe
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`difference between those productsand the productsthat Plaintiff actuallyhandled - includingthe
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`distinct ingredientsand chemical makeup of concentrated and diluted Roundup and the difference
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`in the proper handling of those two distinct types of products.Again, unnecessary and time-
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`consuming mini-trials would have to ensue. Introduction of such evidence also will result in juror
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`confusion about which productsare actuallyat issue in this case, resultingin the very real risk that
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`CASE NO- CACE 19-013224
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`the jury will improperly evaluate allegedrisks associated with productsthat Plaintiff did not even
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`handle.
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`Plaintiff should therefore be precluded from introducingany evidence, argument, or
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`testimony about any allegedissues or risks associated with mixing and handling concentrated
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`Roundup.
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`IV.
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`CONCLUSION
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`The Court should limit the evidence in this case to the specificRoundup product at issue
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`and precludePlaintiff from introducingany evidence, argument, or testimony about other products
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`to which Plaintiff either did not personallyhandle or was not exposed and which do not form the
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`basis for Plaintiff' s claims in this action.
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`Respectfullysubmitted,
`
`/s/ Laura K. Whitmore
`WILLIAM P. GERAGHTY
`Florida Bar No.. 0089508
`
`wgeraghty@shb.com
`SHOOK, HARDY & BACON L.L.P.
`CitigroupCenter, Suite 3200
`201 South Biscayne Boulevard
`Miami, Florida 33131
`Telephone: (305)358-5171
`(305)358-7470
`Facsimile:
`
`LAURA K. WHITMORE
`Florida Bar No.. 818011
`
`lwhitmore@shb.com
`SHOOK, HARDY & BACON L.L.P.
`100 N. Tampa Street,Suite 2900
`Tampa, FL 33602
`Telephone: (813)202-7100
`Facsimile: (813) 221-8837
`
`MATHEW L. LARSEN
`Admitted Pro Hac Vice
`mlarsen@shb.com
`
`-7-
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`CASE NO- CACE 19-013224
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`DALTON R. MOTT
`Admitted Pro Hac Vice
`dmott@shb.com
`SHOOK, HARDY & BACON L.L.P.
`2555 Grand Boulevard
`Kansas City,MO 64108
`Telephone: (816)474-6550
`Facsimile: (816)441-5547
`
`KERI L. ARNOLD
`Florida Bar No.. 0088936
`karnold@wilkinsonstekloff.com
`WILKINSON STEKLOFF LLP
`130 West 42nd Street,24th Floor
`New York, NY 10036
`Telephone: (202) 847-4040
`Facsimile: (202)847-3008
`
`Counselfor Monsanto Company
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`CASE NO- CACE 19-013224
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`CERTIFICATE OF SERVICE
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`I HEREBY CERTIFY that a true and correct copy of the foregoingwas served on all
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`counsel of record through Florida's E-FilingPortal this 30th day of June, 2023.
`
`/s/ Laura K. Whitmore
`Counselfor Monsanto Company
`
`4877-8774-3085
`
`-9-
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`: JILIA
`EXHIBIT A
`RXI-
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`

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`IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT
`IN AND FOR BROWARD COUNTY, FLORIDA
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`Page 1
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`CASE NO. CACE 19-013224
`
`DAVID G. JACOBS, a Florida Resident,
`Plaintiff,
`
`VS.
`MONSANTO COMPANY, a foreign corporation;
`ANDREW JACK CONROY, a Florida resident;
`HARDWARE CITY, INC., a Florida corporation;
`HOME DEPOT U.S.A., INC., a foreign corporation;
`LOWE'S HOME CENTERS, LLC, as
`successor-in-interest to LOWE'S HOME CENTERS,
`INC., a foreign corporation,
`Defendants.
`
`VIDEOTAPED
`VIDEOCONFERENCE DEPOSITION OF
`DAVID G. JACOBS
`
`DATE TAKEN:
`TIME:
`LOCATION:
`
`Tuesday, September 6, 2022
`9:34 a.m. - 2:59 p.m.
`All participants attending
`remotely
`
`Taken on behalf of the Defendants before
`Fanny R. Kerbel, Shorthand Reporter and Notary Public in
`and for the State of Florida at Large, appearing
`remotely, pursuant to Notice of Taking Deposition in the
`above cause.
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`Page 2
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`REMOTE APPEARANCES
`
`On behalf of the Plaintiff:
`
`PODHURST ORSECK, P.A.
`One Southeast 3rd Avenue
`Suite 2700
`33131-1716
`Miami, Florida
`PABLO ROJAS, ESQUIRE
`BY:
`E-mail:
`projas@podhurst.com
`
`On behalf of the Defendants
`Monsanto Company, Andrew Jack Conroy,
`Hardware City, and Lowe's Home Centers:
`
`MCDERMOTT WILL & EMERY, LLP
`333 Southeast 2nd Avenue
`Suite 4500
`33131-2184
`Miami, Florida
`MELISSA R. ALVAREZ, ESQUIRE
`BY:
`malvarez@mwe.com
`E-mail:
`WHITLEY G. MANN, ESQUIRE
`wmann@mwe.com
`E-mail:
`
`MCDERMOTT WILL & EMERY
`One Vanderbilt Avenue
`New York, New York
`10017
`JENNIFER L. FILIPPAZZO, ESQUIRE
`BY:
`E-mail:
`jfilippazzo@mwe.com
`
`and
`
`On behalf of the Defendant Home Depot:
`
`MORRIS MANNING & MARTIN, LLP
`1600 Atlanta Financial Center
`3343 Peachtree Road, N.E.
`30326
`Atlanta, Georgia
`PATRICK L. LOWTHER, ESQUIRE
`BY:
`E-mail:
`plowther@mmmlaw.com
`KRISTEN M. VIGILANT, ESQUIRE
`E-mail:
`
`Also Present:
`
`Russ White, Videographer
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`INDEX
`
`VIDEOCONFERENCE DEPOSITION
`OF DAVID G. JACOBS
`Exhibit Index
`Direct Examination by Ms. Alvarez
`Cross-Examination by Mr. Lowther
`Certificate of Oath of Witness
`Certificate of Reporter
`Letter to Witness Re: Reading
`Errata Sheet
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`Page 3
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`PAGE NO.
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`3
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`6
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`189
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`201
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`202
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`203
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`204
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`PLAINTIFF'S EXHIBIT INDEX
`**** NONE ****
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`DEFENDANTS' EXHIBIT INDEX
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`Number
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`Description
`
`Page No.
`
`Exhibit 1
`
`Exhibit 2
`Exhibit 3
`Exhibit 4
`Exhibit 5
`Exhibit 6
`
`Notice of Taking Virtual
`Video Deposition of Plaintiff
`Photograph
`Photograph
`Photograph
`Photograph
`Second Amended Complaint
`for Personal Injuries
`
`24
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`109
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`112
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`113
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`114
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`168
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`All exhibits were provided
`Reporter's Note:
`electronically to the reporter.
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`Page 73
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`A.
`
`Q.
`
`That, I couldn't tell you exactly.
`
`Sir, in your lawsuit you've alleged that you
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`have used a Roundup product.
`
`Do you know the name of
`
`the product you used?
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`container?
`
`A.
`
`Q.
`
`A.
`
`Roundup.
`
`Just Roundup?
`
`Yeah.
`
`Can you recall any other writing on the
`
`No.
`
`Can you describe the product that you bought?
`A white container with black lettering, maybe,
`
`with a pump.
`
`I'm really not 100 percent sure.
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`Do you recall the size of that container?
`
`Maybe a gallon, but not 100 percent sure.
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`Was this a liquid product or a dry product?
`
`Liquid.
`
`Was this a premixed or a concentrated product
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`that had to be diluted?
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`It was premixed.
`
`Right out of the container.
`
`So it was a ready-to-use?
`
`Correct.
`
`You said it had a pump.
`
`Where was the pump?
`
`It was coming out of the top of it that you
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`pump, and then you use it like a sprayer.
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`Page 93
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`A.
`
`Q.
`
`No.
`
`Other than telling me that it was a white
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`gallon-sized container with a pump and a wand, is there
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`anything else about the container that you recall?
`
`A.
`
`Q.
`
`product?
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`No.
`
`And I'm correct you never used a concentrated
`
`The spray was all that we would use.
`
`I'm sorry.
`
`Could you repeat that?
`
`The spray.
`
`Was the only thing you used?
`
`Yes.
`
`Before using that product, did you have to do
`
`anything to its contents?
`
`A.
`
`Q.
`
`A.
`
`No.
`
`Not that I recall.
`
`And you always kept it stored in your garage?
`
`I believe so.
`
`But we also had a shed.
`
`So it
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`is possible a few times it was in the shed, but I don't
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`know the exact amount.
`
`Q.
`
`Okay.
`
`When you would use the Roundup, do you
`
`recall what you would wear?
`
`A.
`
`If I was mowing the lawn, usually shorts, a
`
`shirt, any sneakers.
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`If I wasn't mowing the lawn,
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`possibly sandals.
`
`Q.
`
`Do you know if this was a short-sleeved shirt
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`CERTIFICATE OF OATH OF WITNESS
`
`Page 201
`
`STATE
`
`OF
`
`FLORIDA
`
`COUNTY OF BROWARD
`
`I, Fanny R. Kerbel, Shorthand Reporter and
`
`Notary Public in and for the State of Florida at Large,
`certify that the witness, David G. Jacobs, appeared
`before me via videoconference on September 6, 2022 and
`
`was duly sworn by me after producing government-issued
`identification.
`
`Signed this 15th day of September, 2022.
`
`SARMHR
`
`FANNY R. KERBEL, Court Reporter
`Notary Public - State of Florida
`Commission No. GG 951739
`
`Expires May 16, 2024.
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`CERTIFICATE OF REPORTER
`
`Page 202
`
`STATE
`
`OF
`
`FLORIDA
`
`)
`
`COUNTY OF BROWARD
`
`I, FANNY R. KERBEL, Shorthand Reporter, do
`hereby certify that I was authorized to and did
`stenographically report the videoconference deposition
`of David G. Jacobs, the witness herein on September 6,
`2022, that a review of the transcript was not waived;
`and that the foregoing transcript, pages 1 through 200,
`is a true and complete record of my stenographic notes.
`I FURTHER CERTIFY that I am not a relative,
`employee, attorney or counsel of any of the parties, nor
`am I a relative or employee of any of the parties
`attorney or counsel connected with the action, nor am I
`financially interested in the action.
`Dated this 15th day of September, 2022.
`
`SM Rgbsg?bd
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`FANNY R. KERBEL, Court Reporter
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`Page 203
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`September 15, 2022
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`Pablo Rojas, Esquire
`E-mail:
`projas@podhurst.com
`Re: David G. Jacobs vs. Monsanto
`David G. Jacobs
`Depo of:
`Taken:
`September 6, 2022
`5369795
`Assignment Number:
`
`The above-referenced transcript is available for
`review.
`Mr. Jacobs should read the testimony to verify its
`If there are any changes, Mr. Jacobs should
`accuracy.
`note those with the reason on the attached Errata Sheet.
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`returned 30 days from receipt of testimony, as
`considered reasonable under Federal rules*; however,
`there is no Florida statute to this regard.
`If the witness fails to do so, the transcript may be
`used as if signed.
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`Yours,
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`Veritext Legal Solutions
`
`*Federal Civil Procedure Rule 30(e)/Florida Civil
`Procedure Rule 1.310(e).
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`Page 204
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`ERRATA SHEET
`DAVID G. JACOBS vs. MONSANTO COMPANY
`IN RE:
`DEPOSITION OF: DAVID G. JACOBS
`SEPTEMBER 6, 2022
`TAKEN:
`ENTER ANY CHANGES HERE
`DO NOT WRITE ON TRANSCRIPT
`Reason
`Line #
`
`Page #
`
`Change
`
`State of Florida:
`
`County of
`
`Under penalties of perjury, I declare that I have read
`my deposition transcript, and it is true and correct
`subject to any changes in form or substance entered
`here.
`
`DATE
`
`DAVID G. JACOBS
`
`800-726-7007
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`305-376-8800
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`FLORIDA RULES OF CIVIL PROCEDURE
`
`Rule 1.310
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`(e) Witness Review. If the testimony is
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`transcribed, the transcript shall be furnished to
`
`the witness for examination and shall be read to or
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`by the witness unless the examination and reading
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`are waived by the witness and by the parties. Any
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`changes in form or substance that the witness wants
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`to make shall be listed in writing by the officer
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`witness for making the changes. The changes shall
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`be attached to the transcript. It shall then be
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`signed by the witness unless the parties waived the
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`signing or the witness is ill, cannot be found, or
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`refuses to sign. If the transcript is not signed by
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`the witness within a reasonable time after it is
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`furnished to the witness, the officer shall sign
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`the transcript and state on the transcript the
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`waiver, illness, absence of the witness, or refusal
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`to sign with any reasons given therefor. The
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`deposition may then be used as fully as though
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`signed unless the court holds that the reasons
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`given for the refusal to sign require rejection of
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`

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`the deposition wholly or partly, on motion under
`
`rule 1.330(d) (4).
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`DISCLAIMER:
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`THE FOREGOING CIVIL PROCEDURE RULES
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`THE ABOVE RULES ARE CURRENT AS OF APRIL 1,
`
`2019.
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`PLEASE REFER TO THE APPLICABLE STATE RULES
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`

`: JILIB
`EXHIBIT B
`RXI-
`
`

`

`SUPERIOR COURT OF THE STATE OF CALIFORNIA
`
`COUNTY OF SAN FRANCISCO
`
`DEWAYNE JOHNSON,
`
`Plaintiff,
`
`VS.
`
`Case No. CGC-16-550128
`
`MONSANTO COMPANY, et al.,
`Defendants.
`
`VOLUME II
`
`Proceedings June 20, 2018, at 10:22 a.m.
`before the Honorable Suzanne R. Bolanos.
`
`REPORTED BY:
`
`Mary Hogan, CSR No. 05386
`
`Page 86
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`APPEARANCES:
`
`For the Plaintiff:
`MICHAEL L. BAUM, ESQ.
`R. BRENT WISNER, ESQ.
`PEDRAM ESFANDIARY, ESQ.
`BAUM, HEDLUND, ARISTEI, GOLDMAN PC
`12100 Wilshire Boulevard, Suite 950
`90025
`Los Angeles, CA
`310-207-3233
`
`DAVID DICKENS, ESQ.
`TIMOTHY LITZENBURG, ESQ.
`THE MILLER FIRM, LLC
`108 Railroad Avenue
`22960
`Orange, VA
`540-672-4224
`
`MARK BURTON, ESQ.
`AUDET & PARTNERS
`711 Van Ness Avenue, Suite 500
`94102
`San Francisco, CA
`415-568-2555
`
`Page 87
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`For the Defendant:
`SANDRA A. EDWARDS, ESQ.
`FARELLA BRAUN + MARTEL LLP
`235 Montgomery Street
`94104
`San Francisco, CA
`415-954-4400
`
`GEORGE C. LOMBARDI, ESQ.
`JAMES M. HILMERT, ESQ.
`WINSTON & STRAWN LLP
`35 West Wacker Drive
`
`Chicago, IL
`312-558-5969
`
`60601
`
`KIRBY T. GRIFFIS, ESQ.
`GRANT HOLLINGSWORTH, ESQ.
`HOLLINGSWORTH LLP
`
`1350 I Street, N.W.
`20005
`Washington, DC
`202-898-5800
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`So it's a pattern or conduct that has
`occurred all the way back since the initial
`approval of glyphosate and it stretches to old
`Monsanto, despite the fact that it was back in
`It was still the same pattern and conduct
`that they were doing to get glyphosate on the
`market.
`
`1969.
`
`THE COURT:
`
`So I'm going
`All right.
`to grant Defendant Monsanto's motion Number 18
`modified to exclude evidence of agent orange or
`
`PCP.
`
`One, the product was manufactured from
`1965 to 1969, so I find it to be too remote in
`time to be relevant to this litigation.
`Two, it was manufactured by a
`different company, old Monsanto, which is not the
`company that's being sued in this litigation.
`And three, in any event, I find that
`
`all of the subsequent litigation and findings
`regarding that product, agent orange, were so
`controversial that the prejudice stemming from
`admitting any evidence regarding agent Monsanto
`far outweighs any probative value with regard to
`anything that the current Monsanto is doing in
`this litigation.
`
`Page 156
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`I, the undersigned, a Certified
`Shorthand Reporter of the State of California, do
`
`hereby certify:
`That the foregoing proceedings were
`taken before me at the time and place herein set
`forth; that any witnesses in the foregoing
`proceedings, prior to testifying, were duly sworn;
`that a record of the proceedings was made by me
`using machine shorthand which was thereafter
`transcribed under my direction; that the foregoing
`transcript is a true record of the proceedings.
`I further certify that I am neither
`financially interested in the action nor a
`relative or employee of any attorney or party to
`this action.
`
`IN WITNESS WHEREOF, I have this date
`subscribed my name.
`
`Dated: June 20, 2018
`
`<%signature%>
`
`Mary Hogan
`
`CSR No. 05386
`
`Page 239
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`866 299-5127
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`

`

`EXHIBIT C
`JLU'C
`RXI-
`
`

`

`1111111111111111111111
`lilli1111111111'Illl
`1111111
`20908374
`
`SUPERIOR COURT OF THE STATE OF CALIFORNIA FILED
`ALAMEDA COUNTY
`IN AND FOR THE COUNTY OF ALAMEDA
`
`ALVA AND ALBERTA PILLIOD,
`
`Plaintiffs,
`
`V.
`
`MAR 1 9 2019
`
`COURT
`CLEFIK?efiH?j#fEOIOR
`NUXI, Deputy
`Case No. RG17-862702 -'--V
`Ij
`
`ORDER ON MOTIONS IN
`
`MONSANTO COMPANY; WILBUR-ELLIS
`COMPANY, LLC; and WILBUR-ELLIS
`FEED, LLC,
`
`LIMINE
`
`Defendants.
`
`DATE 3/18/19
`TIME 9:00 AM
`
`DEPT 21
`
`PLAINTIFFS' MOTIONS
`
`1. PLAINTIFFS' MOTION IN LIMINE NO. 1 TO EXLCUDE ANY TESTIMONY AND
`EVIDENCE ON THE BENEFITS AND EFFICACY OF GLYPHOSATE
`Denied without prejudice.The motion does not address specificevidence. The
`court will rule on the relevance and admissibilityof evidence relatingto the
`propertiesof glyphosateat the time of trial. The court suggests that relevant
`evidence about glyphosate(positiveor negative)would relate directlyto
`causation.
`
`2. PLAINTIFFS' MOTION IN LIMINE NO. 2 TO EXCLUDE EVIDENCE, TESTIMONY
`AND ARGUMENT REGARDING FOREIGN REGULATORY ACTIONS AND
`DECISIONS BY GOVERNMENTAL AGENCIES IN FOREIGN COUNTRIES
`Denied without prejudice.The motion does not address specificevidence. At trial,
`evidence of or references to foreignregulatoryactions and decisions will be
`limited to those regulatoryactions taken duringthe plaintiffs'exposure periodas
`they relate to the expert opinionpresentedand to the questionof punitive
`
`1
`
`

`

`damages. The Court will ask the partiesto discuss the evidence the parties
`anticipateofferingon this topic.
`
`3. PLAINTIFFS' MOTION IN LIMINE NO. 3 TO EXCLUDE EVIDENCE OF HEALTH
`INSURANCE POLICIES
`Granted. This is evidence of a collateral source.
`
`4. PLAINTIFFS' MOTION IN LIMINE NO. 4 TO EXCLUDE EVIDENCE, TESTIMONY
`AND ARGUMENT REGARDING ATTORNEY RETENTION AND ADVERTISING
`Granted as to information protectedby the attorney-clientprivilege.Denied as to
`publicadvertisem*nts. Counsel may want to ask jurorsin voir dire whether they
`have seen advertisem*nts about litigationinvolvingRoundup. At this time, the
`court does not see the relevance of attorney advertisem*nt to the merits of the
`litigation.
`
`5. PLAINTIFFS' MOTION IN LIMINE NO. 5 TO EXCLUDE EVIDENCE OF
`SMOKING, AND DRUG USAGE
`The motion to exclude evidence of"drug usage" (presumably Mr. Pilliod's use of
`marijuana)is granted.There is no reference in any expert opinionthat incidental
`use of marijuana is a risk factor for NHL. To the extent that cigarettesmoking is
`reference is the literature or in the opinionsof experts as a possiblerisk factor or
`confounder for NHL, it may be discussed.
`
`6. PLAINTIFFS' MOTION IN LIMINE NO. 6 TO EXCLUDE EVIDENCE OF EXPERT'S
`FINANCES AND PERSONAL ASSETS UNRELATED TO CURRENT LITIGATION
`Granted,in part. Denied, in part. Dr. Sawyer may be questionedabout his fees for
`this and any other litigationhe is involved in related to Roundup. He may not be
`questionedabout specificassets, i. e. his boat.
`
`7. PLAINTIFFS' MOTION IN LIMINE NO. 7 TO EXCLUDE EVIDENCE AND
`ARGUMENT REGARDING UNRELATED MEDICAL HISTORY
`Denied without prejudice.This motion does not address specificevidence. The
`plaintiff'smedical histories are at issue and it is not possibleto determine which
`specificfacts will be relevant until evidence is presented.
`
`8. PLAINTIFF'S MOTION IN LIMINE NO. 8 TO EXCLUDE ANY ARGUMENT AND
`TESTIMONY THAT EPA REGISTRATION PRECLUDED MONSANTO FROM
`WARNING OF THE RISK OF NONHODGKIN'S LYMPHOMA
`Granted.
`
`2
`
`

`

`9. PLAINTIFFS' MOTION IN LIMINE NO. 9 TO EXCLUDE CERTAIN U.S. EPA
`DOCUMENTS RELATING TO GLYPHOSATE'S CARCINOGENICITY
`
`The Court will issue a separate order on this motion.
`
`10. PLAINTIFFS' MOTION IN LIMINE NO. 10 TO EXCLUDE SPECULATIVE
`TESTIMONY AND OPINIONS REGARDING POSSIBLE ALTERNATIVE CAUSES
`OF PLAINTIFFS' CANCER
`Denied. The experts will be allowed to discuss the risk factors and basis for
`causation they considered in arrivingat their opinions.
`
`11. PLAINTIFFS' MOTION IN LIMINE NO. 11 TO BAR ANY REFERENCE OR
`TESTIMONY REGARDING PAST SEXUAL CONDUCT
`Denied. Mr. Pilliod's extra-marital affair