In the Missouri Court of Appeals Eastern District DIVISION FOUR
STACEY MOORE, ) No. ED112004 ) Appellant, ) Appeal from the Circuit Court ) of St. Louis County v. ) Cause No. 20SL-CC03678 ) MONSANTO COMPANY, ) Honorable Ellen H. Ribaudo ) Respondent. ) Filed: September 3, 2024
Introduction
Stacey Moore 1 filed suit against Monsanto Company after being exposed to Monsanto’s
glyphosate-containing products (“Roundup”) for years. After a jury verdict in Monsanto’s favor,
Moore appealed the circuit court’s judgment. Moore claims the circuit court erred in excluding
one of his witnesses, overruling his motion for a new trial, and failing to discharge a
venireperson for cause. The circuit court’s judgment is affirmed.
Background
In July 2020, Moore filed suit against Monsanto alleging his exposure to Roundup caused
him to contract non-Hodgkin’s Lymphoma (“NHL”). Moore also alleged Monsanto concealed
the risks of Roundup exposure from the public.
1 Moore filed suit with additional co-plaintiffs, but those individuals are not pertinent to this appeal. Prior to trial, Moore disclosed A.S. as an expert witness who would testify regarding
Roundup’s general and specific causation of Moore’s NHL. Monsanto filed a motion in limine to
exclude A.S.’s testimony, asserting A.S. was unqualified to testify regarding causation.
Monsanto claimed that while A.S. is a clinical oncologist, he was unqualified to offer an expert
opinion on causation because it was an area beyond his expertise. The circuit court sustained
Monsanto’s motion and excluded A.S.’s expert testimony on general and specific causation.
During voir dire, the circuit court asked the venire whether anyone or their families
worked for Monsanto. Two venirepersons responded, but when the question was broadened to
include anyone who provided consulting work for Monsanto, seven additional venirepersons
responded affirmatively, including venireperson 26 (“Juror”). The circuit court together with
Moore and Monsanto’s attorneys, inquired with each of these venirepersons individually. Juror
disclosed that more than 30 years ago, Juror’s law firm assisted Monsanto in securing the proper
immigration paperwork for its foreign employees. Juror stated he recalled working with some
Monsanto executives, but he could not remember their names and speculated that none of them
were still alive. The circuit court independently inquired whether Juror would be able to be fair
and impartial. Juror stated he had no knowledge or opinions that would prevent him from being
fair and impartial. Juror also stated he would set aside any information he knew about Monsanto
and would only base his decision on the evidence presented at trial.
Moore sought to strike Juror for cause due to his prior business relationship with
Monsanto. Monsanto noted Juror’s work was decades in the past and Juror affirmed he could be
impartial. The circuit court overruled Moore’s motion to strike Juror for cause because “his
decades ago immigration work for individuals who worked at Monsanto does not mean he
2 worked for Monsanto.” After all of the strikes for cause, Moore only used two of his three
preemptory strikes and did not remove Juror.
The case proceeded to trial. During Monsanto’s opening statement, Monsanto stated
Moore would “not bring a medical doctor, a paid expert, or a treating doctor” to testify that
Roundup caused Moore’s NHL. Moore objected, and the circuit court sustained the objection.
Moore immediately asked the circuit court to strike these comments. The circuit court directed
the jury to disregard Monsanto’s statement that Moore would “not bring a medical doctor.”
Monsanto continued and stated, “But the evidence will not include any testimony from
any medical doctor stating that Mr. Moore’s NHL was caused by Roundup.” Moore objected,
and the circuit court sustained the objection. Moore then requested the circuit court to give the
jury a curative instruction, which it would draft. Monsanto opposed the issuance of a curative
instruction. The circuit court again directed the jury to disregard the most recent portion of
Monsanto’s opening statement. Monsanto finished its opening statement, and Moore called his
first witness. At the end of the day, the circuit court admonished the jury to keep an open mind
about the trial, to not discuss the trial, and to not perform any research or investigation. The jury
was dismissed for the weekend.
Moore then made an additional record regarding Monsanto’s opening statement. Moore
argued that the circuit court should allow A.S. to testify regarding specific causation to cure the
issue. The circuit court stated it believed it utilized the best remedy by instructing the jury to
disregard portions of Monsanto’s opening statement. The circuit court further noted it instructed
the jury that opening statement is not evidence and should not be considered as evidence.
Moore filed a motion for mistrial over the weekend, which the circuit court overruled
before resuming trial on Monday morning. Moore renewed his request to call A.S. as an expert
3 witness, which the circuit court denied. Moore then requested the circuit court issue a limiting
instruction explaining his burden of proof regarding causation. The circuit court denied this
request.
Trial resumed with Moore presenting several expert witnesses who testified regarding
their opinions that glyphosate was associated with causing NHL and Moore’s exposure to
Roundup increased his risk for developing NHL. Moore testified describing his frequent use of
Roundup. Moore filed a written offer of proof, seeking to allow A.S.’s excluded testimony. The
circuit court did not modify its pre-trial ruling, and A.S.’s testimony was excluded.
Monsanto called its own expert witnesses, who testified that NHL commonly resulted
from factors other than glyphosate. These experts opined there was no causal connection
between glyphosate and NHL, and that Moore’s exposure to Roundup did not cause his NHL.
Following trial, the jury returned a verdict in Monsanto’s favor. The circuit court entered
judgment accordingly. Moore filed a motion for new trial, which the court overruled. Moore
appeals the judgment, claiming the circuit court erred in: (1) excluding A.S.’s testimony; (2)
overruling his motion for a new trial based upon Monsanto’s improper opening statement; and
(3) not striking Juror for cause.
Analysis
Expert Testimony
Moore first claims that the circuit court abused its discretion in excluding A.S.’s
testimony because he was qualified to provide an expert opinion on causation of Moore’s NHL.
Moore asserts A.S.’s testimony would have assisted the jury in understanding the evidence and
determining whether Roundup caused or contributed to his NHL.
4 Prior to trial, Moore disclosed A.S. as an expert witness on general and specific
causation. Monsanto opposed A.S.’s testimony as an expert witness, and the circuit court
excluded A.S.’s testimony. The circuit court acknowledged A.S. was qualified to diagnose and
treat cancers, but found he was not qualified as an expert to offer general or specific causation
opinions in this case. Moore then made an offer of proof, during trial and outside the jury’s
presence, asking the circuit court to reconsider its pre-trial ruling and submitting A.S.’s
deposition in support. The circuit court did not explicitly rule on this offer of proof, but A.S. was
excluded from testifying at trial. 2 Moore again raised this issue in his motion for new trial.
“The admission or exclusion of evidence lies within the sound discretion of the [circuit]
court and will not be disturbed absent clear abuse of discretion.” Sherrer v. Bos. Sci. Corp., 609
S.W.3d 697, 705 (Mo. banc 2020) (quoting Cox v. Kan. City Chiefs Football Club, Inc., 473
S.W.3d 107, 114 (Mo. banc 2015)). When a circuit court excludes evidence, appellate review is
focused “not on whether the evidence was admissible but on whether the [circuit] court abused
its discretion in excluding the evidence.” Rhoden v. Mo. Delta Med. Ctr., 621 S.W.3d 469, 484
(Mo. banc 2021) (quoting Coyle v. City of St. Louis, 408 S.W.3d 281, 289 (Mo. App. 2013)). “If
reasonable persons can differ as to the propriety of the [circuit] court’s action, then it cannot be
said that the [circuit] court abused its discretion.” Linton by & through Linton v. Carter, 634
S.W.3d 623, 627 (Mo. banc 2021) (quoting In re Care & Treatment of Donaldson, 214 S.W.3d
2 Monsanto does not argue that Moore’s written offer of proof was insufficient. This Court notes, however, that an “offer of proof must be more than ‘a mere statement of the conclusions of counsel.’” Hurley v. Burton, 626 S.W.3d 810, 822 (Mo. App. 2021) (quoting State v. Sullivan, 553 S.W.2d 510, 513 (Mo. App. 1977)). Moore’s narrative offer failed to draw attention to specific parts of the deposition supporting his belief A.S. should be allowed to testify as an expert. 5 331, 334 (Mo. banc 2007)). An erroneous evidentiary ruling warrants reversal when prejudice is
demonstrated. Mitchell v. Kardesch, 313 S.W.3d 667, 675 (Mo. banc 2010).
“Expert testimony in civil cases is inadmissible unless it satisfies the evidentiary
requirements of section 490.065.” 3 Linton, 634 S.W.3d at 626. Section 490.065.2(1) states:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) The testimony is based on sufficient facts or data;
(c) The testimony is the product of reliable principles and methods; and
(d) The expert has reliably applied the principles and methods to the facts of the case[.]
Although § 490.065.2 permits a witness to testify in the form of an opinion if qualified to
do so, the opinion offered by a witness must necessarily be one within the witness’s area of
expertise. For this reason, this Court has held that medical professionals are not permitted to
opine on all things medical simply because they are medical professionals. Rather, medical
professionals, like all other experts, must be qualified by knowledge, skill, experience, training,
or education to give the opinion offered. Sigrist By & Through Sigrist v. Clarke, 935 S.W.2d
350, 357 (Mo. App. 1996) (emphasis in original) (quoting Cebula v. Benoit, 652 S.W.2d 304,
308 (Mo. App. 1983)).
Moore’s offer of proof, however, demonstrated that A.S. had ventured outside of his area
of expertise. A.S. acknowledged in his deposition testimony that he only began to examine the
causation of NHL when he was asked to do so by Moore’s counsel. He went on to admit that he
3 All statutory references are to RSMo Supp. 2017. 6 is not an expert in epidemiology, biostatistics, genetics, genotoxicity, or animal bioassays. Yet,
to formulate his opinions, A.S. stated he reviewed studies from each of these specialties. Many
of the studies that A.S. reviewed were provided to him by Moore’s counsel, and throughout his
deposition, A.S. was unable to differentiate between studies provided by counsel and studies he
found on his own. The deposition also revealed that A.S. was unable to identify which particular
studies his opinion was based on or to thoroughly discuss his criticisms of any studies he
reviewed. A.S. stated that he did not examine any study to see if there were any other chemicals
known to cause NHL. A.S. explained:
A.S.: So since my only task in this case was to look at glyphosate, I didn't look. I know we talked about the other pesticide that you mentioned starting with a P in the IARC manual. But I didn't go there for this deposition because that wasn't my task.
Monsanto’s Counsel: You -- am I correct that you cannot name a single other chemical that is known to cause lymphoma?
A.S.: I could if you give me time to look.
Monsanto’s Counsel: Okay. And, [A.S.], what are you looking at on your phone, for the record?
A.S.: I was going to go back to those articles that he sent me, and I think it's there.
Monsanto’s Counsel: The articles that counsel sent you?
A.S.: The stuff that's on, I think, either 2 or 3 or both, yes.
Monsanto’s Counsel: Okay. So you are looking for articles that counsel sent you for your reliance list –
A.S.: Yes.
...
Monsanto’s Counsel: As an oncologist, have you encountered other chemical as risk factors for [NHL], or no?
A.S.: I think there are. I just would have to look it up….
7 ...
Monsanto’s Counsel: And, [A.S.], would you conclude from animal studies whether a particular substance can cause cancer in humans?
A.S.: [A.S.], the community clinical oncologist, is not the one you're going to ask to answer those questions.
Although it is true that “[m]edical doctors do not need to be epidemiologists in order to
testify regarding epidemiological studies,” they must still be qualified by training or experience
to do so and their opinion must still be helpful to the jury. In re Roundup Prods. Liab. Litig., 390
F. Supp. 3d 1102, 1148 (N.D. Cal. 2018) (quoting In re Mirena IUD Prods. Liab. Litig., 169 F.
Supp. 3d 396, 426 (S.D.N.Y. 2016)). A.S.’s deposition testimony does not include any indication
that he was qualified to discuss or critically analyze the studies on which he relied. And nothing
in A.S.’s deposition testimony demonstrated that he attempted to critically analyze any of the
studies he read or could meaningfully discuss studies that were contrary to his position. Rather,
A.S. did little more than summarize studies that were helpful to Moore’s position, the vast
majority of which were provided to A.S. by Moore’s counsel.
A.S. did not testify to any background or experience with respect to conducting or
analyzing the types of epidemiological studies on which he intended to rely. Significantly, he
indicated that he was not familiar with certain criteria commonly used in epidemiology to
differentiate correlation and causation. In short, though A.S. may be an expert in the treatment of
NHL, his deposition testimony leaves this Court with significant doubts regarding his status as
an expert in the analysis of the causation of NHL.
A.S. also offered testimony regarding the specific causation of Moore’s NHL.
Specifically, Moore performed a “differential diagnosis” to conclude that glyphosate caused
8 Moore’s NHL. 4 “In performing a differential diagnosis, a[n expert] begins by ‘ruling in’ all
scientifically plausible causes of the plaintiff’s injury. The [expert] then ‘rules out’ the least
plausible causes of injury until the most likely cause remains.” Ingham v. Johnson & Johnson,
608 S.W.3d 663, 709 (Mo. App. 2020) (quoting Glastetter v. Novartis Pharm. Corp., 252 F.3d
986, 989 (8th Cir. 2001)). A.S.’s differential diagnosis is unreliable, however, because he relied
on his own conclusion that glyphosate is a cause of NHL. As discussed, A.S. was not qualified to
give this opinion. A.S. also expressly disclaimed his reliance on any other expert witness for this
proposition. As a result, the circuit court did not err in determining the differential diagnosis
offered by A.S. was unreliable.
A.S.’s admitted lack of expertise in identifying causes of NHL, his unfamiliarity with the
studies he would rely upon, and his admitted deference to other experts’ conclusions
demonstrates he cannot be qualified as an expert pursuant to § 490.065.2(1). The circuit court did
not abuse its discretion in excluding A.S. as an expert witness.
Opening Statement
Next, Moore claims that the circuit court erred in overruling his motion for new trial
because Monsanto’s comment during opening statement that Moore would not present a medical
doctor to testify about causation warranted a mistrial. Specifically, Moore argues that because
Monsanto successfully sought to exclude A.S., Monsanto was prohibited from commenting on
his absence during trial. According to Moore, the circuit court’s failure to grant a mistrial on this
basis constitutes an abuse of discretion and a manifest injustice.
4 The analysis A.S. offered really was not a “differential diagnosis”—identification of Moore’s disease, but rather a “differential etiology”—identification of the cause of Moore’s disease. See In re Roundup Prod. Liab. Litig., No. 16-MD-02741-VC, 2023 WL 7928751, at *6 n.6 (N.D. Cal. Nov. 15, 2023).
9 “A mistrial is a drastic remedy that should be granted only in exceptional circumstances.”
Payne v. Fiesta Corp., 543 S.W.3d 109, 123 (Mo. App. 2018) (quoiting Delacroix v. Doncasters,
Inc., 407 S.W.3d 13, 24 (Mo. App. 2013)). The circuit court has discretion to determine whether
to grant or deny a mistrial. Spence v. BNSF Ry. Co., 547 S.W.3d 769, 780 (Mo. banc 2018). This
Court reviews the circuit court’s denial of a motion for new trial for an abuse of discretion. Bair
v. Faust, 408 S.W.3d 98, 102 (Mo. banc 2013). “An abuse of discretion occurs when a ruling is
clearly against the logic of the circumstances before the court and is so arbitrary and
unreasonable that the ruling indicates a lack of careful deliberate consideration and shocks the
sense of justice.” Id. This Court will reverse the circuit “court’s denial of a motion for new trial
only if we find a ‘substantial or glaring injustice.’” Beverly v. Hudak, 545 S.W.3d 864, 869 (Mo.
App. 2018) (quoting Sterbenz v. Kan. City Power & Light Co., 333 S.W.3d 1, 7 (Mo. App.
2010)).
In support of his argument, Moore relies on Calvin v. Jewish Hospital of St. Louis, Inc.,
746 S.W.2d 602 (Mo. App. 1988). In Calvin, the circuit court allowed the plaintiff and another
party to disclose expert witnesses after a court-imposed deadline, but the court prohibited the
hospital defendant from doing the same. Id. at 603-04. The court gave no reason for treating the
parties differently. Id. During closing argument, the plaintiff’s attorney argued that, because the
hospital failed to have an expert testify, the jury should infer that the hospital could find no
expert witness to support its case. Id. at 605. The circuit court then compounded this error by
overruling the hospital defendant’s objection to the argument. Id. On appeal, this Court held that,
when a witness’s testimony is excluded on the motion of a party, it is error for the circuit court to
allow the moving party to also argue that the jury can draw an adverse inference from the
absence of that witness. Id.
10 But Calvin “did not hold, and cannot be read for the proposition that, a new trial must be
awarded as a matter of law every time an attorney wrongfully comments on the absence of an
adverse witness after first securing a ruling excluding that witness’s testimony.” Maloney v.
Benchmark Ins. Co., 628 S.W.3d 667, 684 (Mo. App. 2021). And this Court “cannot find any
endorsement in Calvin of the principle that a limiting instruction is insufficient to remedy an
improper adverse inference as a matter of law or any statement from which this principle would
follow.” Campise v. Borcherding, 224 S.W.3d 91, 95 (Mo. App. 2007).
Moreover, unlike in Calvin the circuit court, here, instructed the jury to disregard the
allegedly erroneous statements. Even assuming that counsel’s opening statement was improper,
the circuit court sustained Moore’s objection to the testimony and instructed the jury to disregard
the statement. When Moore presented his motion for a mistrial, the circuit court explained that
instructing the jury to disregard Monsanto’s comments was a sufficient remedy because opening
statements are not evidence and over the course of the trial, the jury would hear from so many
doctors they would not remember Monsanto’s opening statement. “[A]n instruction to the jury to
disregard inadmissible evidence or improper argument is a sufficient remedy, as we must
presume the jury has followed the court’s instructions.” Matter of Stiles, 662 S.W.3d 322, 332
(Mo. App. 2023) (quoting State v. McClendon, 477 S.W.3d 206, 215 (Mo. App. 2015)).
This Court agrees with the circuit court. As a result, the circuit court did not abuse its
discretion in overruling Moore’s motion for a new trial.
Qualified Juror
Finally, Moore claims the circuit court erred in overruling his motion to strike Juror for
cause during voir dire. Moore asserts that because Juror and his law firm assisted Monsanto with
11 immigration services, Juror was unconsciously or subconsciously biased in Monsanto’s favor.
Moore argues that this relationship resulted in Juror being unqualified for service.
Determining whether a venireperson is qualified to serve on a jury is within the circuit
court’s discretion. Thomas by & through Thomas v. Mercy Hosps. E. Cmtys., 525 S.W.3d 114,
117 (Mo. banc 2017). This Court defers to the circuit court’s ruling on a challenge for cause
“unless it is clearly against the evidence and is a clear abuse of discretion.” Joy v. Morrison, 254
S.W.3d 885, 888 (Mo. banc 2008) (quoting State v. Christeson, 50 S.W.3d 251, 264 (Mo. banc
2001)).
“The purpose of voir dire is to discover bias or prejudice in order to select a fair and
impartial jury.” Matter of D.N., 598 S.W.3d 108, 116 (Mo. banc 2020) (quoting State v. Clark,
981 S.W.2d 143, 146 (Mo. banc 1998)). In determining whether an individual venireperson is
qualified to serve, the analysis must focus on whether that individual’s beliefs would “prevent or
substantially impair the performance of his duties as a juror in accordance with his instructions
and his oath.” Joy, 254 S.W.3d at 888 (quoting Christeson, 50 S.W.3d at 264). A venireperson’s
qualifications are determined by the entire examination. Matter of Care & Treatment of Braddy,
559 S.W.3d 905, 917 (Mo. banc 2018).
Moore moved to strike Juror because Monsanto hired him for legal services to secure the
proper immigration paperwork for its foreign employees. Juror stated that his law firm had not
consulted with Monsanto for more than 30 years. Juror could not remember the name of any
Monsanto executives he worked with. Further, the record of Juror’s examination shows that
Juror demonstrated he would be fair and impartial and would follow the circuit court’s
instructions. This Court finds Moore’s attempts to liken Juror to a current or recent employee of
a party unpersuasive.
12 The circuit court’s decision to overrule Moore’s motion to strike Juror for cause was not
so clearly against the logic of the circumstances that it constituted an abuse of discretion. There
was no error.
Conclusion
The circuit court’s judgment is affirmed.
John P. Torbitzky, P.J. Robert M. Clayton III, J., and Michael S. Wright, J. concur.