RoundUp weed killer.

“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.”