Jun. 10, 2019
Lawyers for Monsanto Co.’s parent company, Bayer AG, have asked the federal judge overseeing a batch of lawsuits accusing the company’s blockbuster herbicide Roundup of causing cancer to reverse an $80 million dollar damages verdict in the first case to go to trial in the multidistrict litigation, or to grant the company a new trial.
In court papers filed Friday, Bayer’s lawyers at Wilkinson Walsh + Eskovitz; Arnold & Porter Kaye Scholer; Hollingsworth; and Covington & Burling claim the jury’s finding that Roundup use caused Sonoma County resident Edwin Hardeman’s non-Hodgkin lymphoma runs counter to regulatory determinations and scientific evidence showing that glyphosate
, the active ingredient in Roundup, doesn’t pose a cancer threat to humans when used properly. Monsanto’s lawyers also argued that U.S. District Judge Vince Chhabria, who is overseeing the Roundup MDL, got several evidentiary rulings wrong.
In particular, Monsanto’s lawyers claim that although plaintiffs were allowed to introduce evidence related to a 2015 finding by a United Nations-related body that glyphosate is “probably carcinogenic” in humans, the company wasn’t allowed to introduce evidence from other regulatory bodies, which have subsequently found Roundup safe to use as directed.
Monsanto also claims that plaintiffs ran afoul of one of Chhabria’s pretrial rulings barring them from asserting that two studies they presented at trial showed a doubling in cancer risk for people who used Roundup more than two days per year or 10 days in their lifetime. Monsanto’s motion points out that plaintiff’s trial counsel mentioned the doubling in risk in opening and closing statements and elicited testimony from an expert witness about a “more than twofold” increase in risk, despite the court’s pretrial ruling.
Hardeman’s lead counsel in the case Aimee Wagstaff, of Andrus Wagstaff in Lakewood, Colorado, and Jennifer A. Moore, of the Moore Law Group in Louisville, Kentucky, didn’t immediately respond to a request for comment.
Monsanto is asking the judge to overturn an $80 million verdict that came at the end of a month-long trial—proceedings that featured drama in the early going despite Chhabria’s efforts to keep the initial focus on science. Chhabria spilt the trial proceedings into two phases to first focus on whether the scientific evidence showed that Hardeman’s use of Roundup caused his non-Hodgkin lymphoma. The judge sanctioned lead plaintiff’s counsel Wagstaff shortly after the opening of the trial in February, finding that she had violated his pretrial evidentiary orders regarding the first phase.
He ordered Wagstaff to pay $500, finding that she ran afoul of his orders intentionally and in bad faith. Post-trial, Chhabria has also sanctioned Wagstaff’s co-counsel Moore finding that she “intentionally joined in the bad faith misconduct” and ordered her to pay $500. On Monday, Chhabria ordered the parties in the Hardmen case to file their slides from Phase 1 closing statements and Phase 2 opening and closing statements with the court.
The Hardeman case was the second of three blockbuster Bay Area verdicts against Monsanto in Roundup cases, but the only one so far in federal court. The first trial in San Francisco Superior Court ended in a $289 million verdict last year, an amount that was later cut by the judge to $78 million. A third trial last month resulted in a jury in Alameda County Superior Court awarding $2 billion in punitive damages to a California couple who both had non-Hodgkin lymphoma.