[00:00:00] Speaker 02:
Thank you, Madam Clerk.

[00:00:02] Speaker 02:
Please be seated.

[00:00:05] Speaker 02:
Good morning.

[00:00:06] Speaker 02:
My name is Morgan Christen.

[00:00:08] Speaker 02:
Welcome to the Ninth Circuit Court of Appeals.

[00:00:09] Speaker 02:
I'm one of the circuit court judges.

[00:00:11] Speaker 02:
My chambers are in Anchorage, Alaska.

[00:00:14] Speaker 02:
So this time of year, I'm particularly happy to be here in Pasadena today.

[00:00:18] Speaker 02:
I'm sitting with my colleague from Honolulu, Judge Clifton, and my colleague from Coeur d'Alene, Idaho, Judge Tallman.

[00:00:25] Speaker 02:
We're going to hear four cases on the calendar today, and we have not submitted any of them.

[00:00:30] Speaker 02:
The first is case number 23-4201, Peter Ingellis and Kathy Ingellis versus Monsanto.

[00:00:38] Speaker 02:
And Council, if you could come right on up.

[00:00:40] Speaker 02:
It'll just take me a minute to rustle these papers and get situated, if you can give me that time, if you'd appreciate it.

[00:01:05] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:01:07] Speaker 00:
I'm Thomas Burns, and I represent Mr. and Mrs. Anguillas.

[00:01:10] Speaker 00:
I'd like to reserve three minutes for rebuttal, please.

[00:01:12] Speaker 00:
Sure.

[00:01:13] Speaker 00:
The district court concluded Dr. Schneider's differential ideology as unreliable on two grounds.

[00:01:18] Speaker 00:
First, it resolved genuine dispute of predicate fact against the opinion when it held Mr. Anguillas was obese at all relevant times.

[00:01:25] Speaker 00:
And second, it rejected as unscientific Dr. Schneider's interpretation of medical literature on obesity and his reliance on his own clinical experience

[00:01:34] Speaker 00:
extensive clinical experience to rule it out.

[00:01:36] Speaker 00:
Both rulings were either legal errors to which no deference is owed, serious abuses of discretion, or misdescriptions of the record.

[00:01:52] Speaker 04:
There was a question as to whether or not your expert had actually reviewed any medical records that referenced a high BMI, had never met the, your plaintiff didn't even know what he looked like.

[00:02:10] Speaker 04:
And so he was essentially confronted at the hearing with the reliability of his opinion.

[00:02:17] Speaker 04:
But then he changed his position during his testimony at the hearing saying well obesity doesn't matter.

[00:02:23] Speaker 04:
And the district court on that basis determined his opinion was unreliable.

[00:02:29] Speaker 04:
So is that clear error is that.

[00:02:31] Speaker 04:
Is that the position that you're taking?

[00:02:33] Speaker 04:
Do we have to overturn that?

[00:02:36] Speaker 00:
You do.

[00:02:37] Speaker 00:
And I think the reason is the district didn't understand properly the two stages of the differential etiology.

[00:02:43] Speaker 00:
So the ruling in stage, you cast a very wide net, and you rule in various things.

[00:02:48] Speaker 00:
I think that's what his expert report did, because it says- Where does his expert report rule in obesity as a potential positive factor?

[00:02:55] Speaker 00:
per the plaintiff's fact sheet, he's negative for these conditions.

[00:03:00] Speaker 00:
Therefore, I rule them out.

[00:03:02] Speaker 00:
But he's, I think- What is the plaintiff's fact sheet?

[00:03:06] Speaker 00:
Great question.

[00:03:07] Speaker 00:
I was confused as well.

[00:03:08] Speaker 01:
Well, I mean, there's an argument over perhaps the trend in his way, though I've got some real concerns about that.

[00:03:16] Speaker 01:
But at the time, he winds up appearing at, I assume his lawyer saw him at some point, even if Dr. Schneider didn't.

[00:03:23] Speaker 01:
He's 5'6 and over 200 pounds, so he is wide in some fashion.

[00:03:28] Speaker 01:
So how is it that the fact that he might be a little heavy doesn't get communicated to the expert who lists obesity explicitly in his report as a negative condition?

[00:03:40] Speaker 00:
So the fact sheet, to answer the first part of the question, if you look at MDL doc 1883.1, that's the template for the fact sheet.

[00:03:49] Speaker 00:
And that's something in MDLs that's often worked out between the plaintiff's and defendant's counsel, and it lists a number of conditions.

[00:03:55] Speaker 00:
Who fills that out?

[00:03:56] Speaker 00:
Obesity.

[00:03:57] Speaker 00:
That's filled out.

[00:03:59] Speaker 00:
The record doesn't say in this case, but what I understand to be the truth is that it was filled out with the plaintiff's attorney's office.

[00:04:07] Speaker 01:
That's what I inferred.

[00:04:09] Speaker 01:
So somebody had dealings with him and knew that he was at least wide.

[00:04:16] Speaker 01:
How is that that's not communicated to Dr. Schneider?

[00:04:19] Speaker 00:
So the fact sheet says it's not obese.

[00:04:24] Speaker 00:
Again, this is sort of not in the record.

[00:04:25] Speaker 02:
It's negative for obesity.

[00:04:27] Speaker 00:
Negative for obesity.

[00:04:28] Speaker 00:
And number one, the plaintiff says, I've never been diagnosed as obese, which I think the medical records bear out that he's never actually been diagnosed as obese.

[00:04:37] Speaker 01:
That doesn't change whether or not he was obese.

[00:04:40] Speaker 00:
That's another fact issue we can talk about.

[00:04:45] Speaker 01:
Either he's big or he's not.

[00:04:47] Speaker 01:
And the fact that nobody had put in the record the word obese doesn't tell me he wasn't.

[00:04:51] Speaker 00:
The reason that it doesn't say positive for obese is he doesn't actually look obese.

[00:04:57] Speaker 00:
Like, you know, the expert's not seen a picture of him.

[00:04:59] Speaker 00:
I have.

[00:05:00] Speaker 04:
Isn't medical obesity anything over a BMI of 25?

[00:05:04] Speaker 00:
There's controversy about that.

[00:05:07] Speaker 04:
Well, there's controversy about whether the BMI is an accurate rendition of obesity.

[00:05:13] Speaker 04:
But isn't it true in the medical literature

[00:05:16] Speaker 04:
that if a patient has a BMI of 25 or more, he is medically obese.

[00:05:23] Speaker 04:
Whether or not it's a reliable indicator or not, isn't that true?

[00:05:28] Speaker 00:
It's that's how the a lot of papers approach it.

[00:05:32] Speaker 00:
There's controversy about whether that is Accurate like you said because really it's supposed to be measuring or estimating adiposity At two points and so wasn't that information provided to the doctor to the expert?

[00:05:51] Speaker 00:
He had medical records in front of him.

[00:05:54] Speaker 00:
It's not clear to me And I've not I just haven't been able to figure out a clear answer whether he had those specific medical records in front of him I just don't know He did but the reliance list There are two things that possibly could show that he had those medical records one is he says medical records of f Marie doctor f Marie and That might be a typo because the doctor's name is sorry

[00:06:18] Speaker 00:
M Frank the doctor's name is is Frank Marie He might have that's possible that that's a typo and then it says something about Advent health That's apparently where this primary care physicians work, so I don't know if he's seen these specific records As the basis for the factual determination that he had ruled out obesity without even

[00:06:44] Speaker 04:
having any basis to do so, and I'm trying to figure out how that's a clear error on the part of the district court who listened to the testimony and the cross-examination of the expert at the hearing.

[00:07:02] Speaker 00:
at the Daubert stage, the judge is not supposed to resolve disputes of predicate fact.

[00:07:08] Speaker 02:
But he has to make the determination that the expert has a reliable basis on which... That was the finding, that it wasn't reliable, and he wasn't adhering to the particular methodology that he purported to be using, right?

[00:07:23] Speaker 00:
Right.

[00:07:23] Speaker 02:
So why is that wrong?

[00:07:25] Speaker 02:
Why was the district court wrong?

[00:07:26] Speaker 00:
On that point, which is just one of the two arguments, obviously.

[00:07:29] Speaker 02:
I understand, but we're giving you a lot of questions.

[00:07:31] Speaker 02:
So I just want, what's your best shot at this?

[00:07:33] Speaker 00:
My best shot is that there is an evidentiary basis for his conclusion based on the fact sheet and based on the deposition.

[00:07:40] Speaker 01:
If the fact sheet isn't right, how is that an evidentiary basis?

[00:07:43] Speaker 01:
Because it's sworn.

[00:07:45] Speaker 00:
It's a sworn document.

[00:07:47] Speaker 02:
The conclusion that Mr. Angelis was not obese.

[00:07:51] Speaker 02:
Is that the conclusion you mean?

[00:07:54] Speaker 00:
Yes, the fact sheet says I'm not obese.

[00:07:57] Speaker 00:
And the deposition he's asked, you know, have you ever been diagnosed as obese?

[00:08:01] Speaker 00:
No.

[00:08:02] Speaker 00:
And then he gives like what his current weight is under oath and he says what my weight used to be in 1990.

[00:08:08] Speaker 02:
Okay, so back up and you were trying to answer the question.

[00:08:12] Speaker 02:
What's your best shot?

[00:08:13] Speaker 00:
My best shot is the arithmetic that I tried to explain in the

[00:08:17] Speaker 00:
a brief saying it's going up slowly, gradually.

[00:08:22] Speaker 00:
If he did become, if his BMI reached 30, it wouldn't have happened until just a couple of years before the diagnosis.

[00:08:30] Speaker 00:
And because these are slow moving indolent diseases, that's not long enough for the obesity to have made a difference.

[00:08:37] Speaker 01:
But you have the earlier measurement of BMI that was high.

[00:08:41] Speaker 01:
And so how is it, is it is a scientific or reliable approach for the doctor

[00:08:48] Speaker 01:
disregard that and you're trying to say it's throw it to the jury but we can't do that because we have to determine if the approach taken by the proposed expert is reliable and so far we haven't heard anything other than reliance upon the fact sheet that he was given for which he's not responsible it's not his fault but if he's told information that turns out not to be correct and proceeds based on that how can we conclude the report in the end is reliable

[00:09:18] Speaker 01:
My argument is that that is a dispute of predicate fact that's not supposed to be resolved by the stop stop stop stop Because we have to decide if the report is reliable so the fact that the doctor may not have been well informed But the jury finally decides well He maybe wasn't obese after all doesn't change the fact that he had reports or should have had reports that at the earlier measurement He had a BMI over 30

[00:09:43] Speaker 01:
He simply treated that as negative based on the fact sheet and the fact sheet doesn't necessarily reflect actual conditions or what was recorded in the medical record.

[00:09:53] Speaker 01:
That's a problem.

[00:09:55] Speaker 00:
I understand your concern.

[00:09:57] Speaker 00:
Why don't I move on to the second issue about if it was a

[00:10:03] Speaker 00:
something that he had, and you resolve that predicate fact in his favor, it is his opinion that BMI doesn't matter reliable.

[00:10:12] Speaker 00:
And so this is where Judge Holme, you were talking about the pivot.

[00:10:16] Speaker 02:
You used two pronouns.

[00:10:17] Speaker 02:
Do you mean if Mr. Engels was obese, Dr. Schneider's opinion wouldn't be, it wouldn't matter to Dr. Schneider's opinion?

[00:10:26] Speaker 02:
Because that's the other part of the problem, right?

[00:10:28] Speaker 00:
Yes.

[00:10:29] Speaker 00:
And I only need to win, I'm sorry,

[00:10:31] Speaker 00:
I only need to win one of these two arguments to get a reversal here.

[00:10:35] Speaker 00:
So my best shot on the second one is he initially ruled it in because the fact she says this is something you're supposed to consider and he addresses it by saying oh he's not obese you know that's separate and then he's presented at the Daubert hearing for the first time with this article about obesity and because he's not asked about that at deposition that's not part of the initial Daubert motion and that night before he

[00:11:00] Speaker 00:
He looks into it.

[00:11:01] Speaker 00:
Now, he's not doing what Monsanto says, which is just like digging into his opinion.

[00:11:06] Speaker 00:
He's like, well, I've never thought that obesity really matters, but now I'm presenting with an article.

[00:11:12] Speaker 00:
Let me look at this article and see if I got it wrong.

[00:11:14] Speaker 00:
Because he has a vested interest in his own reputation.

[00:11:18] Speaker 00:
So he looks at the article, and he says, number one, I think the article is flawed because it's conflating the difference between chronic lymphocytic leukemia and small

[00:11:30] Speaker 00:
lymphoma, CLL, and SLL.

[00:11:36] Speaker 00:
And it turns out that those are the same two diseases.

[00:11:38] Speaker 00:
The only difference is CLL's in the blood and SLL is in the lymph node.

[00:11:44] Speaker 02:
So this is the night before article that's described in the briefing in the Google search and your client, I mean, sorry, your expert has reason to take issue with it.

[00:11:54] Speaker 00:
Yes.

[00:11:54] Speaker 00:
So number one, he disputes the article.

[00:11:56] Speaker 00:
He's like, I'm not persuaded by your article.

[00:12:00] Speaker 00:
And then he does additional research, and he finds this other study in oncology that has a table.

[00:12:10] Speaker 00:
And his understanding as a 35-year board-certified oncologist is like, there's no accepted connection between obesity and CLL.

[00:12:23] Speaker 00:
And even Monsanto's article says that.

[00:12:27] Speaker 00:
It says that the studies are inconsistent.

[00:12:30] Speaker 00:
The effects of it are modest.

[00:12:31] Speaker 00:
And the study that Monsanto has, the data size is fleetingly small.

[00:12:38] Speaker 00:
They're talking about 25 patients that have a period that they're looking at with CLL.

[00:12:47] Speaker 00:
And Dr. Schneider has seen 1,000 patients.

[00:12:51] Speaker 00:
His data set is 40 times bigger

[00:12:54] Speaker 00:
than the Monsanto study is.

[00:12:55] Speaker 01:
Not only what he says, I've seen fat people and I've seen skinny people without any numbers, without any context that lets us know that that was a scientific approach.

[00:13:07] Speaker 01:
He's seen lots of people over the years.

[00:13:10] Speaker 01:
How is that necessarily reliable?

[00:13:14] Speaker 01:
Given that his report listed obesity, it's not like it's out of the blue, completely unrelated, and I'll obey him because it was on the standard fact sheet, but his report identified obesity.

[00:13:23] Speaker 01:
as a factor to be considered.

[00:13:24] Speaker 01:
He simply said, this client is not obese.

[00:13:29] Speaker 01:
If that turns out to be wrong, we're now to part two.

[00:13:31] Speaker 01:
But his consideration appeared to be limited to the Google search the night before and this long clinical experience with no detail.

[00:13:41] Speaker 01:
How is that scientific?

[00:13:42] Speaker 00:
It is scientific because it's based on his clinical experience.

[00:13:45] Speaker 00:
And that's a very important consideration that this course has said in Messick, Wendell, and Hardiman.

[00:13:50] Speaker 01:
But saying, I've been a longtime physician is not

[00:13:53] Speaker 01:
Get out of jail free card.

[00:13:55] Speaker 00:
He doesn't tell us anything about except I've seen fat people I've seen skinny people and he's not really given an opportunity to tell everybody about it because you know he's like I want to talk about the study can I talk about this can I talk about how BMI works and each time the the questions pivot away from that or the judge pivots away from that and But his counsels or the council that retained him as an opportunity to ask questions, too the opportunities there to detail

[00:14:24] Speaker 01:
But in his report, he didn't talk about this because he said he wasn't obese.

[00:14:29] Speaker 01:
And at testimony, it wasn't surprising that opposing counsel didn't make it easy.

[00:14:33] Speaker 01:
But plaintiff's counsel had a chance to ask questions.

[00:14:36] Speaker 01:
And we still didn't find out what it was other than this year's clinical experience.

[00:14:41] Speaker 00:
And the 1,000 patients with CLL that he saw.

[00:14:44] Speaker 00:
Judge Christen, I don't know how your clock works.

[00:14:47] Speaker 02:
It's working fine.

[00:14:48] Speaker 02:
And you're over.

[00:14:49] Speaker 02:
You wanted to reserve two minutes, and you don't have two minutes left.

[00:14:51] Speaker 02:
If you want to stop there when you come back.

[00:14:53] Speaker 02:
So sir, what I tried to tell you is that if you want to stop there, we'll put two minutes on the clock when you come back because we took up an awful lot of your time with our questions.

[00:15:02] Speaker 00:
I mean, I'm delighted to answer all the questions, but like, yeah.

[00:15:04] Speaker 02:
You want to save two minutes.

[00:15:05] Speaker 02:
Thank you.

[00:15:12] Speaker 03:
Thank you.

[00:15:12] Speaker 03:
Good morning, Your Honors.

[00:15:13] Speaker 03:
Nicole Antoine on behalf of Monsanto.

[00:15:15] Speaker 03:
I heard two points from my opposing counsel, and first was that this is a genuine dispute of relevant fact, and that's why you should reverse Judge Chabria's opinion.

[00:15:24] Speaker 03:
That is not the case.

[00:15:25] Speaker 03:
This isn't about what the facts actually show.

[00:15:28] Speaker 03:
This is about how Dr. Schneider handled those facts.

[00:15:32] Speaker 02:
Whether he adhered to the methodology that he chose to use, and that seems to be the problem.

[00:15:38] Speaker 02:
That's, I think, why Judge Chabria thought that the opinion was not reliable.

[00:15:43] Speaker 03:
And so that is an entirely reasonable basis, and it's certainly not a manifest discretion of error.

[00:15:48] Speaker 03:
Second, when he then realized, when Dr. Schneider realized that there was a problem with the factual basis and that he hadn't canvassed the actual record or spoken to the patient or seen a picture of the patient.

[00:15:59] Speaker 03:
He then changed his rationale for why he said obesity wasn't pertinent here.

[00:16:04] Speaker 03:
He switched to saying, actually, even though I previously ruled out obesity, what I actually think is that it's not a risk factor at all.

[00:16:11] Speaker 03:
But he wasn't qualified.

[00:16:12] Speaker 02:
But the risk, if it was a risk factor, right, he should have ruled it in and then ruled it out.

[00:16:18] Speaker 02:
And so there's a question about whether he recognized it as a risk factor in this case.

[00:16:23] Speaker 02:
The record is, and the transcript's a little difficult.

[00:16:26] Speaker 02:
I think opposing counsel has a valid point.

[00:16:29] Speaker 02:
about that, but I do think there was a shift between the experts first saying, this person isn't obese, so I don't need to worry about this, and then saying, oh, obesity doesn't matter anyway.

[00:16:40] Speaker 03:
Is that a fair summary in your view?

[00:16:42] Speaker 03:
We certainly agree with that, Your Honor.

[00:16:44] Speaker 03:
One of the primary issues with Dr. Schneider's analysis was that switch.

[00:16:48] Speaker 03:
An expert is supposed to review the literature, use their clinical experience, look at the medical records, and then reach a conclusion.

[00:16:54] Speaker 03:
What Dr. Schneider did here was he reached a conclusion, and then when there was questions about that conclusion, he completely changed his basis for saying that conclusion is correct.

[00:17:03] Speaker 03:
So that's not permissible under Daubert.

[00:17:05] Speaker 04:
Is your position then that had Dr. Schneider

[00:17:10] Speaker 04:
discussed obesity in his report and stated his belief that obesity doesn't really matter because BMI is not an accurate factor in causation of this particular form of cancer that would have cured the problem that brings us here today.

[00:17:31] Speaker 03:
Without seeing the actual analysis, I can't say for sure, but I can certainly say that that would get much closer and while we might have questions about how that ruling out process was done in that report, that at least would show evidence that he had considered it in an analytically rigorous method.

[00:17:47] Speaker 03:
We don't have anything close to that here.

[00:17:49] Speaker 04:
Let me come at the question in a slightly different way.

[00:17:51] Speaker 03:
Yes, Your Honor.

[00:17:52] Speaker 04:
You don't have any disagreement over the fact that he applied a differential diagnosis.

[00:17:57] Speaker 04:
which basically requires the doctor to rule in all of the different factors that might cause the cancer and then to rule out in some reasoned way all of the factors that he or she can leaving us with whatever is left in the bucket which then has to be discussed as a causation factor of the cancer.

[00:18:21] Speaker 04:
Is that a correct assessment of how the methodology is supposed to work?

[00:18:26] Speaker 03:
Yes, Your Honor.

[00:18:26] Speaker 03:
In order to do a differential etiology, so to determine the causation, the expert is first supposed to look at potential causes, rule them in just as you said, and then look at those and rule them out either on a basis that they don't exist here.

[00:18:39] Speaker 03:
For example, there's an identified risk factor, but that person doesn't have it, or that they're not capable of doing so.

[00:18:44] Speaker 03:
Although that second part can also be considered part of the ruling in analysis as well.

[00:18:50] Speaker 04:
Right.

[00:18:50] Speaker 04:
So to get back to the question I originally asked you,

[00:18:53] Speaker 04:
Had the doctor identified the high BMIs in the medical records and made a determination that for purposes of his analysis, the patient would be considered obese and then gone on to explain why he didn't think obesity was a contributing factor here, his opinion would be admissible.

[00:19:16] Speaker 04:
Is that right?

[00:19:17] Speaker 03:
So I would certainly think that had the doctor actually considered it and identified the correct Medical facts with respect to mr. Anguillas that would come a much longer way towards having an admissible opinion and into the abstract You're not gonna quite give me a yes, but that's The question the issue here is the second part his ruling out of obesity as a potential cause at all and wouldn't he be permitted to do that had he properly identified it as a factor of

[00:19:43] Speaker 04:
by relying in part on his training and experience in 35 years of oncology and internal medicine, and in rendering an opinion that he didn't think obesity was a contributing factor.

[00:19:58] Speaker 03:
We believe that no, he couldn't do that here.

[00:20:00] Speaker 03:
And the reason is, I agree he certainly has 35 years of experience as a treating oncologist.

[00:20:05] Speaker 03:
But he was asked, in your clinical practice, you do not typically evaluate the cause of an individual person's lymphoma.

[00:20:11] Speaker 03:
Right?

[00:20:12] Speaker 03:
He said typically no.

[00:20:13] Speaker 03:
He also said that that's because as a treating oncologist, if you have cancer, it doesn't really matter how you got it.

[00:20:21] Speaker 03:
I've got to get you better.

[00:20:22] Speaker 03:
And so he certainly has a lot of clinical experience, but it's not the relevant clinical experience for this question, which is the causation of non-Hodgkin's lymphoma, not whether a person has it.

[00:20:33] Speaker 04:
Did the district court restrict his testimony so that he could not testify as to specific causation?

[00:20:39] Speaker 03:
Do you mean the district court excluded his general causation analysis as well and excluded his specific causation?

[00:20:46] Speaker 04:
But even before the hearing though he would I thought he was being offered

[00:20:50] Speaker 04:
I guess he is the only expert that the plaintiff had on specific causation.

[00:20:54] Speaker 03:
That's correct, Your Honor.

[00:20:56] Speaker 03:
But we would say that his analysis for specific causation here required him to do a general consideration of whether obesity is capable of causing it and that he doesn't have the clinical experience to do that here.

[00:21:07] Speaker 02:
Opposing counsel's contention, I think, is that he wasn't allowed to back up and say that this really shouldn't have been ruled in to begin with because a fair review of the literature wouldn't

[00:21:20] Speaker 02:
show that obesity is correlated.

[00:21:24] Speaker 03:
We would say that's not sufficient for two reasons.

[00:21:26] Speaker 03:
One, that's not what Dr. Schneider originally did.

[00:21:30] Speaker 03:
And so the fact that it's a post-hoc justification alone renders it unreliable.

[00:21:34] Speaker 03:
But two, we think there is good reason.

[00:21:36] Speaker 03:
for ruling in obesity here.

[00:21:38] Speaker 03:
First, his report acknowledged it as a potential causal factor.

[00:21:42] Speaker 03:
He used the language causal factor.

[00:21:45] Speaker 03:
Second, he was presented with literature from defense counsel at the evidentiary hearing, which he conceded reported a statistically significant odds ratio for the development of CLL, another word for non-Hodgkin's.

[00:21:56] Speaker 02:
That's the literature that was presented to him the night before.

[00:21:58] Speaker 03:
Yes.

[00:21:59] Speaker 03:
May I make a note about that, Your Honor?

[00:22:02] Speaker 03:
I think that in the briefs, it's sort of unclear.

[00:22:04] Speaker 03:
The reason he received that literature the night before was because it was provided as part of advanced cross-examination materials.

[00:22:10] Speaker 03:
I understood that.

[00:22:10] Speaker 03:
And so the purpose.

[00:22:11] Speaker 03:
Yes.

[00:22:11] Speaker 03:
I understood that.

[00:22:13] Speaker 02:
But I think Judge Clifton was trying to ask a question, and we started at the same time.

[00:22:18] Speaker 01:
If it is true he's acknowledged that he, in his practice, clinical practice, wasn't focused on the cause,

[00:22:28] Speaker 01:
the fact that he had examined so many people and if he had gone back and said, but based on my observations, I can make these, I can draw these conclusions, which didn't come out in detail.

[00:22:41] Speaker 01:
So I'm really focused on what you said a moment ago about the fact that his focus was on treatment, not on determining the cause.

[00:22:48] Speaker 01:
I'm not sure that necessarily precludes him from being able to comment upon cause based on what he'd observed.

[00:22:55] Speaker 01:
This is sort of theoretical because we don't have

[00:22:57] Speaker 01:
But that's the qualification I was seeking to ask you to comment upon.

[00:23:02] Speaker 03:
Yes, Your Honor.

[00:23:03] Speaker 03:
We would say that in a question about causation, he does need more than just having observed patients, because observing is quintessential anecdotal evidence.

[00:23:11] Speaker 03:
And that's why oftentimes courts, and including Judge Chauvery, require epidemiological evidence that looks at whether what's observed is actually tied to a phenomenon and whether it can actually be considered to be causal.

[00:23:23] Speaker 03:
And so we would say that observations, and particularly the way they were justified here, which as you

[00:23:27] Speaker 03:
Your honor noted was his explanation that he sees skinny people, and I quote, and fat people, and I quote, doesn't rise to the level that can provide a reliable analysis of causation.

[00:23:39] Speaker 02:
Are there any other questions?

[00:23:40] Speaker 01:
I do have one other question.

[00:23:41] Speaker 01:
It changes topics a little bit, but it's puzzled me.

[00:23:44] Speaker 01:
And it's partly perhaps the differential diagnosis.

[00:23:49] Speaker 01:
But most things have, or a lot of things, have multiple causes.

[00:23:53] Speaker 01:
And the law doesn't require that.

[00:23:56] Speaker 01:
causation be limited to one and only one factor?

[00:24:01] Speaker 01:
And so I'm sitting here wondering, well, obesity has been identified as a factor to consider, but does it mean it's only obesity or obesity combined with other things?

[00:24:17] Speaker 01:
And in this case, could the plaintiffs make an argument under, I guess it's Florida law, but I think it's pretty common, that there are

[00:24:26] Speaker 01:
multiple causations or conditions that in combination lead to this.

[00:24:33] Speaker 01:
And so continue to make an argument that says, but for the exposure to your client's product, he wouldn't have encountered the condition that he encountered.

[00:24:43] Speaker 03:
Yes, your honor.

[00:24:43] Speaker 03:
So the legal standard does allow for multiple contributing causes.

[00:24:47] Speaker 03:
However, the issue here isn't that legal standard.

[00:24:50] Speaker 03:
The issue is how Dr. Schneider did his analysis.

[00:24:53] Speaker 03:
And so he didn't do his analysis and say, I've looked at obesity.

[00:24:57] Speaker 03:
I've looked at the literature on obesity.

[00:24:59] Speaker 03:
And I've looked at the literature on glyphosate and NHL.

[00:25:02] Speaker 03:
And I found that I can't rule out glyphosate.

[00:25:05] Speaker 03:
And I also can't rule out obesity.

[00:25:07] Speaker 03:
So maybe they both contributed.

[00:25:08] Speaker 03:
What Dr. Schneider did do

[00:25:10] Speaker 03:
is say, I've ruled out obesity based on a self-reported plaintiff fact sheet that's contradicted, it turns out, by the medical records.

[00:25:17] Speaker 03:
And now, actually, what I think is that it's not a risk factor at all.

[00:25:20] Speaker 03:
So the question of getting to, I can't rule it out, but there's combining causes, isn't one that ever is reached here, because we're just looking at how he handled his opinion and the justification he gave for that opinion.

[00:25:32] Speaker 03:
And that's not the opinion he gave.

[00:25:35] Speaker 03:
Thank you, counsel.

[00:25:37] Speaker 03:
Thank you.

[00:25:39] Speaker 01:
I guess since we have a couple of minutes, I will pose one additional question, which is I didn't go pawing through the medical records.

[00:25:46] Speaker 01:
I don't think I have all of them.

[00:25:47] Speaker 01:
But I found it unusual that over many years, there are apparently only the two references to BMI.

[00:25:56] Speaker 01:
And height doesn't change all that much.

[00:25:59] Speaker 01:
I've gotten a little shorter as I've aged.

[00:26:02] Speaker 01:
But weight can change a lot.

[00:26:04] Speaker 01:
And his testimony is that it did change a lot.

[00:26:08] Speaker 01:
Is there really nothing in the records that would permit a determination of what his weight was over like a couple of decades?

[00:26:15] Speaker 03:
Yes, your honor.

[00:26:16] Speaker 03:
So there's nothing in the record before this court to be clear beyond those two weights.

[00:26:20] Speaker 03:
There was there were additional weights in his medical records.

[00:26:23] Speaker 03:
And they were consistent with the other weights that were put before the district court.

[00:26:27] Speaker 03:
So around 200 pounds, including over a period of 15 years.

[00:26:31] Speaker 03:
And the other thing that I will note is that the deposition testimony that you heard about is an explanation for Dr. Schneider's opinion that's been given by counsel.

[00:26:39] Speaker 03:
Dr. Schneider didn't offer that explanation.

[00:26:41] Speaker 03:
In fact, same with the arithmetic that counsel mentioned earlier.

[00:26:44] Speaker 03:
These are all lawyer justifications.

[00:26:46] Speaker 03:
And what we have to look at is what Dr. Schneider said.

[00:26:48] Speaker 03:
And he didn't offer any of those.

[00:26:50] Speaker 03:
But to your original question, the medical records do have

[00:26:53] Speaker 03:
significant number of additional weights and they're consistent with a weight between 195 and 204 pounds Okay, now I'll let you go.

[00:27:02] Speaker 03:
Thank you your honors Council you have two minutes

[00:27:12] Speaker 00:
I'd like to first address the pivot again or the supposed pivot and the ruling in ruling out stage both of which you judge Tom and Judge Kristen asked about so his view on the ruling in ruling out is like I think he did rule it in in the report but at the Daubert hearing he says I didn't have to rule it in because I wasn't required to rule it in because I don't think it's a risk factor and so but even though I didn't have to I did I

[00:27:37] Speaker 00:
Now I have a good basis to rule it out because this is my understanding of the medical literature I disagree with Monsanto study and in my clinical experience and my reading of the literature This is not an established.

[00:27:51] Speaker 04:
It's not it's a very weak Association if any and so he has a basis to rule it out, but the district court was concerned by the fact that Because of the fact that he didn't think he was obese that was the basis on which he ruled it out and when he was confronted

[00:28:07] Speaker 04:
with what the record showed during his testimony, that's when he, quote unquote, pivoted and said, well, even if he was obese, it doesn't matter.

[00:28:16] Speaker 00:
Right.

[00:28:17] Speaker 00:
But in the district court's mind, he thought you're changing your opinion.

[00:28:20] Speaker 00:
You ruled it in, and why are you ruling it out?

[00:28:22] Speaker 02:
I think not.

[00:28:23] Speaker 02:
I think the district court was worried about the methodology.

[00:28:26] Speaker 02:
He was worried about that.

[00:28:27] Speaker 02:
That's what he has to be worried about to make this determination.

[00:28:29] Speaker 02:
It's not, right?

[00:28:30] Speaker 02:
It's not the conclusion.

[00:28:32] Speaker 02:
I know you know that, but you do seem to be slipping over into challenging the conclusion and treating this as a finding of fact.

[00:28:40] Speaker 00:
This is why I think the district court was wrong on that.

[00:28:42] Speaker 00:
The ruling in has cast the wide net, and he did that.

[00:28:45] Speaker 00:
And then the ruling out is look at it very closely.

[00:28:48] Speaker 00:
And here, he initially ruled it out because of his understanding of the weight and the obesity.

[00:28:54] Speaker 00:
And then when he's presented with this article the night before, he decides it doesn't matter anyway.

[00:28:59] Speaker 00:
No, he always knew it didn't matter.

[00:29:02] Speaker 00:
It's just that he's like, oh, well, now I'm going to be asked about this more closely.

[00:29:07] Speaker 00:
Let me confirm that my understanding of the literature remains correct.

[00:29:11] Speaker 00:
And that's when he does his additional research.

[00:29:13] Speaker 02:
Do you think the court was wrong to perceive a pivot?

[00:29:17] Speaker 00:
Yes.

[00:29:18] Speaker 00:
Because his opinion.

[00:29:19] Speaker 02:
You're out of time, so just quickly.

[00:29:22] Speaker 02:
Why do you think that this court was wrong to perceive that your expert pivoted?

[00:29:26] Speaker 00:
Because he always had the opinion, as he explained, I've always had this opinion.

[00:29:30] Speaker 02:
It's just that his- Finish the sentence please.

[00:29:33] Speaker 02:
I've always had this opinion.

[00:29:34] Speaker 02:
What?

[00:29:34] Speaker 02:
That this person wasn't obese or that obesity doesn't matter?

[00:29:36] Speaker 00:
That obesity doesn't matter.

[00:29:38] Speaker 00:
Okay.

[00:29:38] Speaker 00:
It's that he doesn't state that in the report.

[00:29:41] Speaker 00:
That's a problem.

[00:29:41] Speaker 00:
Because his understanding of the plaintiff's weight was that he was not obese.

[00:29:47] Speaker 00:
And then when he's pressed on it, he answers the question.

[00:29:51] Speaker 00:
He's like, well, now you're pushing me on this.

[00:29:54] Speaker 00:
Even if he is obese, it doesn't matter to me because this is my understanding.

[00:29:59] Speaker 00:
the literature this is my understanding from my clinical experience and that should be enough and then remember you know he's considered 20 risk factors he's he's ruled all of them out really what dobert and rule 702 are getting at is preventing preventing the jury from hearing confusing unreliable testimony and this is the kind of thing that i think a jury would easily be able to understand are you fibbing when you're

[00:30:23] Speaker 00:
pivoting supposedly from an opinion that you ruled it in to rule it out or is this like I'm saying now was this always your opinion and you just misunderstood something about the medical records?

[00:30:34] Speaker 04:
Was it an abuse of discretion based on the record that was before the district court at the hearing to exclude him from offering a specific causation opinion?

[00:30:44] Speaker 00:
Right and and and I think yes because he's not adequately waiting the the

[00:30:51] Speaker 00:
his clinical experience, which he's required to do under Wendell, Messick, and Hardiman.

[00:30:55] Speaker 00:
And he's also disregarding his understanding of the medical literature.

[00:30:59] Speaker 00:
So basically the judge is saying, this is how I understand the medical literature.

[00:31:03] Speaker 00:
It's widely discussed.

[00:31:04] Speaker 00:
It isn't really.

[00:31:06] Speaker 00:
And you just, like, you know, you haven't explained to me a basis for doing it.

[00:31:10] Speaker 00:
But if my reading of the

[00:31:12] Speaker 00:
The transcript, the Daubert hearing transcript, is he did do that analysis.

[00:31:16] Speaker 00:
He did it on the fly the night before.

[00:31:19] Speaker 00:
But he didn't invent this.

[00:31:22] Speaker 00:
This was what he always thought.

[00:31:23] Speaker 00:
And so he's careful.

[00:31:25] Speaker 02:
Go ahead.

[00:31:25] Speaker 02:
Finish your sentence.

[00:31:27] Speaker 02:
Well, you are two minutes over time, so I'm trying to.

[00:31:30] Speaker 02:
But please finish your.

[00:31:31] Speaker 00:
So this is his understanding of the medical literature.

[00:31:35] Speaker 00:
And the judge really doesn't give him

[00:31:37] Speaker 00:
not only doesn't give him the opportunity to really say that at the Daubert hearing, but then gives him a short shrift again.

[00:31:42] Speaker 00:
Because remember, there was a prior Daubert order where he just knocks him out.

[00:31:48] Speaker 00:
But he again gives him short shrift in the order, saying, well, you've not adequately explained your understanding of the literature.

[00:31:56] Speaker 00:
I think he did.

[00:31:58] Speaker 04:
And I think we understand your argument.

[00:32:00] Speaker 04:
You're starting to repeat yourself.

[00:32:01] Speaker 00:
Yes.

[00:32:01] Speaker 02:
So we appreciate your advocacy all right and both of your arguments, and so we'll take this matter under okay Thank you very much.

[00:32:08] Speaker 00:
It's been a pleasure to be here.

[00:32:09] Speaker 02:
Yeah, thank you We'll go on to the next case on the calendar