Paraquat Legal Developments: Daubert Hearings Are Over

Intense Daubert Hearings in Paraquat MDL Await Judge Rosenstengl’s Crucial Decision

The hearings on the Daubert motions took place from August 21-24 before MDL Judge Nancy Rosenstengl. The oral arguments were, as expected, very contentious and at a very high level. The sole live witness at the hearing, specifically requested by the Judge, was Dr. Michael Wells, plaintiffs’ only general causation expert.  The parties’ arguments on their respective motions to exclude other expert witnesses did not generate anywhere near the same time and heat as the arguments over Dr. Wells — which only makes sense since he is the linchpin of plaintiffs’ case.

Dr. Wells did a meta-analysis of seven (7) prior epidemiological studies of the causal link between exposure to Paraquat and Parkinson’s Disease, and he concluded that the odds ratio was 2.8. Syngenta and Chevron argued that he failed to properly consider let alone give proper weight to three more recent and much larger epidemiological studies, which did not show a causal link between Paraquat and Parkinson’s Disease — and used defendant boilerplate words such as “cherry-picking” to characterize his analysis as unreliable and thus warranting exclusion.  Dr. Wells and plaintiffs’ counsel Eric Kennedy strongly rebutted those attacks, emphasizing Dr. Wells did consider the other studies but gave them no weight in his analysis because they were lower quality and designed differently than the particular studies he relied upon.

Defendants also cited three prior litigations where Dr. Wells’ expert opinions had been allegedly excluded but plaintiffs’ counsel Kennedy seemed to adequately rebut those assertions as gross mischaracterizations.

In her questioning of counsel during the hearings, Judge Rosenstengl brought up the Seventh Circuit’s Manpower ruling (where that Court had reversed a district court judge for improperly excluding an expert on a Daubert motion). The language in that Seventh Circuit opinions warns district court judges not to overstep their limited role as “gatekeeper” on Daubert motions and intrude on the exclusive province of the jury as sole arbiter of the credibility and weight of expert witnesses’ opinions The Judge’s references to Manpower seemed somewhat heartening, signaling that she intends to tread carefully while wrestling with the critical question of allowing or excluding Dr. Wells and the other experts (on both sides).

At her request the parties filed 20-page post-hearing briefs on September 8, 2023.

She warned that she had much additional reading, and rereading, to do and, consequently, booted the upcoming October date for the first bellwether trial to some as-yet-unknown future date – all premised of course on her denying the Daubert motions aimed at excluding Dr. Wells (and excluding plaintiffs’ other expert witnesses) This is the third rescheduling of the trial.

It’s extremely hard to handicap the outcome of the Daubert motion aimed at Dr. Wells. The Judge did not appear to be anywhere close to making up her mind, or even leaning in one direction, by the end of the hearings.

Rulings on all the Daubert motions will hopefully be issued before year end.

Paraquat: Heading to Daubert Hearing and October Trial

The parties have completed their briefing of two important substantive motions including Daubert and partial summary judgment. They are now poised to begin arguments and obtain  testimony at the Daubert hearing which begins on August 21, 2023. These briefs have been filed under seal except for a single “roadmap brief” filed by defendants on June 9th arguing the science does not support the general causation opinions of Plaintiffs’ experts.

Judge Rosenstengl issued an order on July 28th which, among others, requires Plaintiffs’ expert Dr. Martin Wells to appear and be subject to direct and cross-examination by respective counsel. The Order also allows the parties to submit limited post-hearing closing briefs on or before September 8th.

The outcome of these motions will certainly impact the first bellwether trial of the MDL which is scheduled to begin October 16, 2023.

The first California state court trial, in Contra Costa County, had been scheduled to begin on September 6th but was rescheduled to January 8, 2024. The hearing on Sargon motions (California’s version of a Daubert hearing) and motions for summary judgment is set to begin October 10, 2023. According to Syngenta’s most recently filed Annual Report another case is also set for trial on January 8, 2024 in Florida state court.

One key positive fact that has flown under the radar is that sometime in 2021  Syngenta and Chevron appeared to acknowledge the powerful threat of this litigation by settling an unknown number of Illinois state court cases (in St. Clair County and elsewhere) and 16 California cases pre-trial for $187.5 million. The settlement might have primarily been intended to (1) prevent Stephen Tillery from going forward with high-profile jury trials in St. Clair County and elsewhere in Illinois, and (2) keep the litigation out of the headlines. Assuming the number of settling plaintiffs was relatively small, this Syngenta-disclosed settlement number seems to have provided substantial payouts on a per-plaintiff basis.

This prior settlement should be kept in mind as plaintiffs head towards these important October and January trials.

Quote from Syngenta’s 2021 Annual Report:

“Settlement. On June 1, 2021, Syngenta and a third party co-defendant reached a settlement agreement with paraquat claimants represented by the lead counsel in the Hoffmann cases that were set for trial in St. Clair County, Illinois, and in most of the then-pending California state court cases. In exchange for (and contingent upon) dismissal of all pending cases represented by the lead counsel and a broad release from the covered claimants, Syngenta agreed to pay $187.5 million. Syngenta paid its share into the Qualified Settlement Escrow Fund on July 21, 2021 for purposes of third party verification and allocation among the claimants. The settlement expense is reported within Other general and administrative in the income statement.”

As of July 20, 2023 there were 4,384 active cases pending in the MDL, 298 active cases pending in various California state courts (244 of which are consolidated in a JCCP), and additional cases are proceeding in Pennsylvania (Philadelphia’s Court of Common Pleas, Complex Litigation Center, has at least 260 cases), Illinois, Florida, Washington, and Delaware.

Tylenol Litigation: Getting Closer to the Daubert Motions

Judge Cote has largely ruled in plaintiffs’ favor to date on most of the defendants’ initial motions — e.g., denying Walmart’s preemption motion twice and J&J’s preemption motion, and various other motions to dismiss claims on other grounds. Most recently she denied J&J’s motion seeking her permission to file an immediate (interlocutory) appeal from her preemption ruling to the Second Circuit Court of Appeals.   
Plaintiffs’ leadership have filed amended master complaints against J&J and separately, against the various retail chain defendants who had manufactured and sold their own house brands of acetaminophen (i.e., Walmart, and other major retailers). These master complaints reflect the narrowing of plaintiffs’ causes of action in accordance with Judge Cote’s rulings.  

In further efforts to focus the litigation, parties have agreed to dismiss without prejudice complaints where Texas law clearly governs, since Cote previously dismissed certain claims against retailers under a Texas statutory “safe harbor” preemption clause for retailers. The parties asked Judge Cote to resolve the parties’ dispute over whether certain additional plaintiffs’ complaints are governed by Texas choice of law (and thus dismissible) or a different state’s law (and thus remaining viable).  

As previously written, she has also scheduled a “rocket docket” deadline, with special attention for Daubert motions to be filed on September 19th and a Daubert hearing on the motions during the week of December 4th. The parties will continue the process of exchanging initial and rebuttal expert reports in the weeks leading up to September 19, 2023. 

On July 28, 2023, the Department of Justice asked Judge Cote for a time extension until September 15th to respond to Cote’s unusual invitation to the federal government to weigh in on whether the label for acetaminophen should be changed to provide additional warnings of risk to pregnant women taking the drug. She likely granted the DOJ’s request to obtain a glimpse of how relevant regulatory agencies (especially the FDA) view this dispute in the context of their interpretation of public health and safety requirements.

Watch this space for links to the September 15th and 19th filings — to the extent they are public and not sealed.