Subject: Herbicides

Fifth Circuit Asks the Right Questions, Affirms Summary Judgment on Plaintiffs’ Herbicide Claims as Untimely and Lacking Admissible Expert Support for Causation

Share

As Nobel laureate Richard Feynman once observed, “[w]isdom is knowing when to ask the right questions.” A related proposition is that wise jurists know how to identify and focus on the right questions. Motion practice can turn not only on the facts and the law, but on how the court frames the question to be answered. It is rarely a good sign for a party when the court articulates the issue differently than the party framed it. A recent decision by the Fifth Circuit provides not one, but two prime examples of how correctly framing the inquiry can dictate the results of a motion.

In Whalen v. Monsanto Company, 2024 WL 4524170 (5th Cir. Oct. 18, 2024), the plaintiffs alleged that the decedent had developed squamous cell carcinoma as a result of exposure to the defendant’s herbicide. The decedent was a doctor who had treated employees at a plant where the herbicide’s active ingredient was manufactured and was also an avid gardener who regularly used the herbicide. Initially, the plaintiffs alleged that the herbicide’s active ingredient was itself carcinogenic. However, they ultimately argued instead that the herbicide contained arsenic, which they claimed had caused the decedent’s cancer. The defendant moved for summary judgment, first as to selected claims on a statute of limitations argument, and later as to the remaining claims on the ground that the plaintiffs’ sole causation expert had not offered an admissible opinion, and the trial court granted both motions.

Continue reading “Fifth Circuit Asks the Right Questions, Affirms Summary Judgment on Plaintiffs’ Herbicide Claims as Untimely and Lacking Admissible Expert Support for Causation”

Peer Review Can’t Save “Junk Science” from FRE 702 Judicial Gatekeeping – In re: Roundup Court Excludes Expert Whose Opinions Had Been Published in Peer-Reviewed Literature

Share

When tasked with assessing the admissibility of expert testimony under Federal Rule of Evidence 702, courts often cite the so-called Daubert factors as criteria that guide the inquiry.  Among those factors is “whether the [expert’s] theory or technique has been subjected to peer review and publication.”  Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).  The Daubert Court observed that, although publication “is not a sine qua non of admissibility,” peer review “increases the likelihood that substantive flaws in methodology will be detected.”  But peer review is not coterminous with the Rule 702 inquiry that federal courts are called upon to make, especially with the rise of so-called predatory publishing and journals with relaxed (or absent) peer review processes.  As one court recently observed, “a court can’t wave junk science through the Daubert gate simply because it survived some prepublication peer-review process.”  In re: Roundup Products Liability Litigation, 2024 WL 3074376 (N.D. Cal. June 20, 2024).

In In re: Roundup, the plaintiff claimed to have developed non-Hodgkin’s lymphoma (NHL) as a result of using the defendant’s herbicide.  In support of that claim, he offered a single expert on the issue of whether glyphosate, the active ingredient in the herbicide, can cause NHL in humans.  The expert’s opinions were all contained in two peer-reviewed and published articles that the expert had co-authored.  But only one of the two—a 2019 meta-analysis of six epidemiological studies addressing the link between glyphosate and NHL, which had been published before the expert became involved in the litigation—grappled with the available epidemiological evidence.  The defendant attacked that paper on multiple grounds, and the court agreed that it constituted “junk science” with several flaws each independently justifying its exclusion.

Continue reading “Peer Review Can’t Save “Junk Science” from FRE 702 Judicial Gatekeeping – In re: Roundup Court Excludes Expert Whose Opinions Had Been Published in Peer-Reviewed Literature”

Expert’s Results-Driven Methodology Leads to Exclusion and Summary Judgment in Paraquat MDL

Share

An expert witness is not supposed to pick a desired result and then reverse engineer inputs and methods that reach that result.  As the Ninth Circuit observed 30 years ago, “[c]oming to a firm conclusion first and then doing research to support it is the antithesis of [the scientific] method.”  Claar v. Burlington Northern R.R. Co., 29 F.3d 499, 502-03 (9th Cir. 1994).  A recent opinion from the Southern District of Illinois offers a fine example of an expert with a results-driven approach and a court that called him out on it.

In re Paraquat Products Liability Litigation, 2024 WL 1659687 (S.D. Ill. Apr. 17, 2024), arises from a multidistrict litigation (“MDL”) in which the plaintiffs claim to have developed Parkinson’s disease as a result of exposure to an herbicide, paraquat.  Four plaintiffs whose cases had been chosen for the MDL’s first trials offered a statistician (the parties disputed whether he also qualified as an epidemiologist) as their sole expert to establish general causation.  He had a difficult task, as no peer-reviewed literature established a link between paraquat exposure and Parkinson’s disease.  Indeed, when the court asked the plaintiffs to identify such literature, the plaintiffs could cite only a single opinion article.  That article had been shared with another of the plaintiffs’ experts before it was published, leading the court to conclude in deciding a prior discovery dispute that there was reason to investigate “whether counsel for the MDL plaintiffs, their experts, or other third parties may have influenced the contents of the article for the benefit of one side in the MDL.”  2023 WL 8372819 (S.D. Ill. Dec. 4, 2023).

Continue reading “Expert’s Results-Driven Methodology Leads to Exclusion and Summary Judgment in Paraquat MDL”

Texas Supreme Court Refocuses on Causation and Affirms Summary Judgment in Herbicide Drift Case

Share

The question of whether a particular application of herbicide on one property caused damage on another’s property requires expert testimony.  When a plaintiff claims that herbicide drift caused reduced crop yields, it is not enough for an expert to opine merely that the drift caused damage to plants – the plaintiff must establish that the defendant’s application of the herbicide caused the reduced crop yield.  The distinction may sound nuanced but can have profound ramifications on litigation.  This is well illustrated in the Texas Supreme Court’s recent decision in Helena Chemical Company v. Cox, — S.W. 3d –, 2023 WL 2335694 (Tex. Mar. 3, 2023), an important and highly followed case focusing on the causation requirement in cases alleging yield loss to a crop from alleged exposure to pesticides.

The plaintiffs in Cox were cotton farmers who alleged that the defendant had supervised an aerial application of herbicide that drifted onto plaintiffs’ properties and damaged their crops, causing reduced yields.  A government inspector conducted a visual inspection of the damaged crops and claimed to find “markers” for the herbicide’s two active ingredients, but no lab testing was performed.  The inspector also identified no “consistent pattern” or “drift pattern” of crop damage over the large area encompassing the various plaintiffs’ noncontiguous properties.  Plaintiffs disclosed a slate of experts to support their allegations, but the trial court excluded the experts and granted summary judgment to the defendant.  The court of appeals reversed, finding the experts admissible despite their inability to trace the alleged drift of the herbicide in question from defendants’ application site to plaintiffs’ properties.

Continue reading “Texas Supreme Court Refocuses on Causation and Affirms Summary Judgment in Herbicide Drift Case”