Monsanto Blames Repeated Misconduct by Plaintiffs' Counsel for $2B Roundup Verdict
Monsanto, now owned by Bayer, filed dual motions Monday to reverse the verdict, citing several instances of “inflammatory argument” by plaintiffs' attorneys, among other things.
June 18, 2019 at 05:36 PM
4 minute read
The original version of this story was published on The Recorder
“Repeated misconduct by plaintiffs' counsel” influenced jurors who awarded more than $2 billion to a California couple in a trial over Roundup herbicide, according to Monsanto Co. in court documents seeking to overturn the verdict.
In a motion for a new trial filed Monday, Monsanto, now owned by Bayer AG, cited several remarks from plaintiffs attorneys during trial, such as the U.S. Environmental Protection Agency having “blood on their hands” and that glyphosate was “in the food. It's all over the place.” Such “inflammatory argument” was among a list of reasons why Alameda County Superior Court Judge Winifred Smith should overturn the May 13 verdict or, at the very least, substantially reduce the award, Monsanto's lawyers wrote.
“The verdicts do not reflect the evidence presented in the case; they reflect deep passion and prejudice borne from plaintiffs' counsel's improper argument rested on inflammatory, fabricated, and irrelevant evidence that should have been excluded,” wrote Monsanto attorney Lee Marshall, a San Francisco partner at Bryan Cave Leighton Paisner, in a motion for new trial filed Monday. “Counsel here engaged in misconduct throughout trial, culminating in an over-the-top closing statement littered with precisely the type of misconduct that California law flatly prohibits—a performance that capped a trial in which counsel routinely ignored the court's rulings and sought to invoke fear in jurors.”
Monsanto raised other issues, such as the impact of pretrial publicity on jurors and due process concerns about the $2 billion punitive damages verdict, particularly given that the jury awarded $1 billion in punitive damages each to Alva and Alberta Pilliod, resulting in “double punishment” against Monsanto.
Monsanto, in a separate motion for judgment notwithstanding the verdict filed Monday, continued to challenge the plaintiffs' scientific evidence at trial.
Many of the arguments focus on issues that Monsanto raised soon after the verdict, which included $55 million in past and future economic and noneconomic damages. The couple alleged they both got non-Hodgkin lymphoma after using Roundup on their property, but Monsanto has raised a host of health risk factors they both had while also noting that their type of cancer has no known cause.
Their trial was the second involving cancer claims over Roundup, with a prior jury in San Francisco Superior Court awarding $289 million to a former school groundskeeper. (San Francisco County Superior Court Judge Suzanne Bolanos reduced that award to $78.5 million.) A third jury, in federal court in San Francisco, came out with an $80 million verdict that Monsanto appealed this month.
In addition to language that “went far beyond the bounds of professionalism,” Monsanto cited an “elaborate show” in which the plaintiffs attorney twice wore gloves to handle a Roundup bottle that contained only water.
“All these efforts were an attempt to elicit fear in the jury and get the jury angry,” Marshall said in an interview with Law.com. “Clearly, they were successful in that.”
Lead plaintiffs attorney R. Brent Wisner of Baum Hedlund did not respond to a request for comment.
But in a prior interview right after the $2 billion verdict, he predicted that Monsanto would attack him personally on appeal.
Monsanto also challenged several of the plaintiffs' experts and Smith's decision to allow evidence of California's Proposition 65, which in 2017 added Roundup ingredient glyphosate to its list of carcinogens.
Monsanto, in its motion for judgment notwithstanding the verdict, also cited the U.S. Supreme Court's May 20 decision in Merck Sharp & Dohme v. Albrecht, which found that a judge, not a jury, should determine whether the U.S. Food and Drug Administration would have rejected Merck's proposed labeling change warning of health risks associated with its osteoporosis drug Fosamax. In the Roundup trial, the judge refused to allow an April 30 review by the EPA that Monsanto argued would have made it impossible to change the safety label on Roundup.
“The Merck decision confirms that implied impossibility preemption is a doctrine that's live and well, and we think, in this case, that there is clear evidence under that decision that would qualify for impossibility preemption,” Marshall said. “That's clear evidence the EPA would not allow a warning for a risk it does not believe exists.”
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllLitigator of the Week: A Long-Sought Win on Preemption for Monsanto at the Third Circuit
Litigators of the Week: Proskauer Scores a Defense Win for Last Defendant Standing in Broiler Chicken Antitrust Suit
Litigators of the Week: Covington Team Gets a Directed Verdict in First Trial Over Heavy Metals in Baby Food
Trending Stories
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250