Brent Wisner, Baum, Hedlund, Aristei & Goldman. (Photo: Jason Doiy/ALM)

Our Litigator of the Week is Brent Wisner, a partner at Baum Hedlund in Los Angeles. He led the trial team for Alva and Alberta Pilliod, who alleged Monsanto Co.'s Roundup herbicide caused them to get non-Hodgkin lymphoma. On May 13, a state court jury in Oakland, California awarded each of them $1 billion in punitive damages, plus about $55 million in past and future economic and noneconomic damages.

It was the third verdict against Monsanto, which is now owned by Bayer, and the second for Wisner. In August, he won $289 million for former school groundskeeper Dewayne “Lee” Johnson. San Francisco County Superior Court Judge Suzanne Bolanos reduced the award to $78.5 million, which Monsanto has appealed.

Lit Daily: Tell us a little bit about your clients.

Brent Wisner: Alva Pilliod (who is 77) served as a cryptographer during the Cold War in Germany and, after the army, moved back to San Francisco where he met his wife. He was an avid sailor and even sailed, by himself, through a storm, from Hawaii to the Bay Area in his 50s.

In 2011, Alva was diagnosed with stage four non-Hodgkin lymphoma. His cancer was throughout his skeletal body and caused permanent bone damage through his body. After an extremely aggressive chemo treatment, Alva went into remission and has been cancer-free since. He is still suffering from long-term medical issues associated with his cancer and treatment. He is a completely different person since his cancer.

Alberta Pilliod, 75, grew up in the Bay Area and worked as a school administrator and principal for an alternative high school. In 2015, Alberta was diagnosed with the same subtype of lymphoma, but unlike Alva's systemic tumors, Alberta's tumor appeared in her brain, causing permanent brain damage. She was not expected to live beyond six months.

However, despite her terrible prognosis she fought the cancer and, after eight aggressive rounds of chemo therapy designed to penetrate the brain-blood barrier, she went into remission. Unfortunately, less than a year later, Alberta had a relapse, and her brain tumor came back worse. Once again, despite the odds, she underwent experimental treatment and went into remission.  

She is still in remission, but she must take a $21,000 drug every month or the cancer will come back, and she will die. She continues to suffer from the brain damage—she is unable to walk without help, she has constant imbalance and hearing loss. She is not able to work anymore.

The Pilliods started using Roundup together in the 1970s at their home and on three other properties they owned at various times. Cumulatively they had over 1,500 days of exposure spanning over 30 years. They have two children and four grandchildren. Had they known about the cancer risk, they would have never used Roundup.

When and how did you become involved in the case?

In late 2015 one of our staff member's family members had been diagnosed with non-Hodgkin lymphoma after 30 years of spraying Roundup on his farm in Cambria. He, Jack McCall, expressed that was interested in suing Monsanto.

Sometime after Jack passed away, his widow, Teri McCall let us know she wanted to pursue a wrongful death claim against Monsanto. Her story moved us and we decided we need to investigate the case.  She became our first Monsanto Roundup client.

We knew it would be difficult to litigate this case on our own, so we reached out to Mike Miller (who would later invite me to co-try the first [Johnson] and third [Pilliods] Roundup trials) of the Miller Firm, and asked him if he was interested in working with us.  It turned out that he was already working on the case and he invited us to a kickoff meeting of law firms interested in litigating the Roundup-induced NHL cases. Michael Baum and I attended the meeting and the rest is history.

Who were the key members of your trial team and how did they contribute to the win? 

Michael Miller and I were co-lead trial counsel. I did the opening and closing arguments. Mike and I divided up the examination of plaintiffs' witnesses and cross-examination of defense witnesses. Other attorneys, Nancy Miller, Michael Baum, Pedram Esfandiary, Curtis Hoke, Steve Brady, David Dickens, Jeffrey Travers, and Mark Burton were each major contributors to the trial.  It was a real team, all around.

What was your overarching message or story for the jury?  

That they need to do right by the Pilliods and send a message to Monsanto, a message that would be heard in every board room. We showed the jury that for the last 45 years, Monsanto had manipulated the science and committed outright fraud with impunity. I explained that the EPA had let the American people down, and specifically the Pilliods, and that absent a massive punitive damage award, Monsanto would not change their behavior.

Did the jury's verdict surprise you?

Not really. I was obviously very happy with that award, in the sense that it sends a good message. But I wasn't surprised.

The jury awarded $1 billion in punitive damages to each of your clients. Is that what you asked for?

I actually didn't ask for $1 billion. I showed them the Monsanto profits for one year— the last year that the Pilliods used Roundup—and it was $892 million. So, I said, when you decide how much the punishment should be, it should be north of $892 million. Then I showed them an email from Monsanto where a chief scientist said the issue of Monsanto causing cancer is a $1 billion question. That was it. That's all I said.

You talked to some jurors. What did you learn?

I think two things are going on. When it comes to the witnesses, this has now been consistent across all three verdicts: The jury is across the board impressed with our experts. They are the world-renowned experts in whether pesticides cause cancer. And the thing is, Monsanto hasn't yet been able to find a person who specializes in pesticides causing cancer to testify on their behalf.

What's the other thing going on?

We tried the Johnson case with 20% of our evidence. There was a whole bunch of evidence we didn't get to use because it hadn't been developed yet. So it was the first time we were able to use all the evidence we had, and that clearly made a difference here.

Much of that new evidence was depositions. Any of them stand out?

A couple of big ones. Dr. Bill Reeves: He was put up as the corporate representative, and he prepared for his testimony for 400 hours. I took his deposition over two days, and we played 4.5 hours of his testimony to the jury and showed the jury Monsanto's take on things. Literally, jaws were dropping.

Dr. Michael Koch: the head of Monsanto's product safety center. He openly stated that Monsanto's conduct with regards to ghost writing was unethical. I got him to admit that, which was pretty cool. These depositions allowed us to introduce evidence to documents I knew existed in the Johnson case.

What were some other high points at trial? 

The first was the testimony of the Pilliods.  They were sincere, down-to-earth, and it was obvious that their cancers had devastated their lives. They were inspiring survivors and it was difficult to not get behind them in their historic fight against Monsanto.  

The second were the cross-examinations of Monsanto's experts.  Mike Miller is a genius on cross, and he did a fantastic job taking apart and exposing the hypocrisy of Monsanto's main epidemiologist. And when I crossed one of Monsanto's experts, I actually got her to admit she was not an expert on the causes of cancer (during voir dire), before she offered her opinions about causation.  It was a brutal 10-minute examination that obliterated her credibility in front of the jury.  It was pretty cool.

Did you make any unconventional strategic choices in how you presented your case?   

We took our time.  Conventional wisdom says shorter trials are better, but we knew there was just too much in this case to give the evidence short shrift. We presented over 12 hours of Monsanto employee testimony and presented over 300 exhibits.  

People told us we would lose the jury, but we knew that they were invested in getting to the truth and were willing to listen. So, we laid the evidence on thick and it clearly paid off.  By the end of trial, the jury was clearly convinced that Monsanto acted with malice. The $2 billion in punitive damages speaks to that.

How could this verdict influence other trials coming up over Roundup? Bayer, in a statement Monday, said it would have “no impact on future cases and trials, as each one has its own factual and legal circumstances.”

There's a trial set in August in the County of St. Louis. I will not be trying that case. It will be Aimee Wagstaff's firm. Obviously, we'll support her and help her in any way we can. That will be an important case because it will be the first one in St. Louis outside of California. Maybe it's just crazy Californians that Monsanto can't win over. I don't think it's true, but we'll see.

There's lots of speculation about Monsanto settling these cases in light of yesterday's verdict. Is that going to happen?

We'll see. We have a court-ordered mediation in the MDL, and there are five people on that settlement team on the plaintiffs' side. I'm one of the five, and we'll see how that goes. We have a hearing with Judge [Vince] Chhabria on May 22.

Bayer has vowed to appeal this verdict. In its statement, Bayer said numerous scientific studies and regulatory agencies, including an EPA review released this month, found Roundup's main ingredient, glyphosate, to be safe. Bayer also noted that the Pilliods had “long histories of illnesses known to be substantial risk factors for non-Hodgkin's lymphoma” and that their lawyers “cherry-picked findings from a tiny fraction of the volume of studies available.” What do you think will be the key appellate arguments?

I've seen what they've done in Johnson. I'll be frank: That appellate brief has no merit, and I don't think it's going to go anywhere. What will they do here? Probably the same thing. They're probably going to attack me. They do that frequently. In every single case they tried, they file a brief about how Brent Wisner is a bad lawyer and can't be trusted. I'm sure they'll have that similar approach in their appeal.

Legal precedent has found that punitive damages of 10 times the compensatory damages or more are unconstitutional, which makes it unlikely that the $2 billion verdict will stand. In fact, the judge in the Johnson case reduced that verdict to $78.5 million. What do you hope to get in the end?

I don't know if the $2 billion award will stand, but there's legal precedent for this. The 10-1 ratio that people talk about can be adjusted when the conduct is particularly egregious. And here, we actually have some pretty unbelievably terrible conduct.