The federal judge overseeing the multidistrict litigation over claims linking Monsanto's herbicide Roundup to cancer said the lead plaintiffs lawyer trying the first bellwether case showed “bad faith” by defying his orders to stick to scientific evidence during her opening statement.

U.S. District Judge Vince Chhabria of the Northern District of California held a hearing Tuesday afternoon at the end of second day of the first bellwether trial to consider whether to sanction Aimee Wagstaff of Andrus Wagstaff, one of two lead counsel in the first case.

Wagstaff's co-counsel, Jennifer A. Moore of the Moore Law Group, said at Tuesday's hearing that any reference to prohibited evidence during opening statements was at most recklessness and a product of the “unique nature of this trial.” It was and not caused by any bad faith effort to shoehorn in excluded evidence, and there was no intent to flout court rules.

Chhabria interrupted Wagstaff multiple times during opening arguments Monday in attempts to keep her presentation focused on the subject of the first phase of the bifurcated trial: Whether or not her side can prove that plaintiff Edwin Hardeman's use of Roundup caused his non-Hodgkins lymphoma. Chhabria bifurcated the trial to frontload the causation question while leaving questions of Monsanto's potential liability and damages for a potential later phase in the trial.

During a break in Wagstaff's opening statement, Chhabria entered a show cause order on the docket in the case, asking Wagstaff to respond in writing as to why she should not be sanctioned “for willfully and repeatedly violating the limitations on the subject matter that could be discussed in her opening statement.”

Wagstaff responded in writing Monday night saying it would be “unfair and improper” for the judge to sanction her. She wrote that she immediately complied with all of the judge's requests to “cut short or divert” from her planned opening statements. She added that she offered to exchange opening PowerPoint presentations with lawyers for Monsanto, but they and the judge both found that wouldn't be necessary so long as the parties exchanged exhibits prior to openings.

“Had that ruling come out the other way, as Plaintiff requested, any confusion over what is allowed for Opening Statement in this type of bifurcated trial would have been cleared up in advance of the first day of trial,” she wrote. “Naturally, given the unusual phased nature of Mr. Hardeman's trial, and given the complex set of orders regarding motions in limine and other pre-trial matters—including orders entered at 6 p.m. last night (on the very eve of trial)—some clarification of the application of the Court's rulings to the evidence was to be expected,” she wrote.

On Tuesday afternoon, Chhabria pointed to multiple instances where he thought Wagstaff “crossed the line” into prohibited topics: Focusing on the poking and prodding Hardeman was subjected to during his cancer diagnosis, highlighting internal Monsanto documents that aren't likely to come in during phase one of the trial, hinting at the political shifts at the Environmental Protection Agency, and going too far in depth about the active ingredient in Roundup produced by the the International Agency for Research on Cancer.

“The only conclusion objectively from the evidence is that was intentional it was premeditated,” Chhabria said.

“You're making it sound criminal and it was not,” Moore responded. “Recklessness does not equate to bad faith.”

Wagstaff stood up to defend herself mid-hearing after the judge suggested that her calm response to his interruptions during her openings was evidence that she was prepared for the pushback. Wagstaff said that the fact that she could handle the judge coming down on her in front the jury should not be used against her.

Chhabria ultimately suggested that Wagstaff's conduct was “far more egregious” than that of the only other lawyer he's sanctioned mid-trial: an asbestos plaintiffs lawyer whom he forced to pay $500 for one instance of sanctionable conduct. He, however, did not indicate what his decision would be in Wagstaff's case.

At the close of the hearing, Chhabria addressed the plaintiff Hardeman, who was present throughout.

“Ultimately you are responsible for what these lawyers do in this courtroom,” the judge said. “If the sanctions don't work, I have the authority to dismiss your case which means you lose.”

“I understand,” Hardeman said.