(L to R) Alva and Alberta Pilliod and at a press conference after a $2 Billion verdict. Photo: Jason Doiy/ALM

Bayer has petitioned a California appeals court to reverse a jury's $2 billion verdict over Roundup, insisting that "egregious and pervasive misconduct" by plaintiffs counsel infected the trial.

The appeal, which comes in the third verdict against Bayer's Monsanto alleging its Roundup herbicide caused non-Hodgkin lymphoma, comes as the next trial, originally scheduled in federal court for later this month, got pushed back to March 23 amid talks to settle some or all of the 42,700 lawsuits across the nation.

In a brief filed late Friday before California's First District Court of Appeal, Bayer attorney Dean Bochner said plaintiffs attorneys violated court orders, prompting Monsanto to move for a mistrial several times. In particular, the brief says, they improperly called the case a "historic fight against Monsanto," insisted that the Roundup ingredient glyphosate was pervasive, and referenced the previous trials that ended in verdicts of $289 million and $80 million.

"Throughout the trial, plaintiffs' counsel engaged in egregious and pervasive misconduct," wrote Bochner, a partner at Horvitz & Levy in Burbank.

Then, while questioning one of the plaintiffs, the plaintiffs attorney put on gloves and sprayed water out of a Roundup bottle.

"The entire demonstration was simply a tactic to scare the jury," Bochner wrote.

Lead plaintiffs attorney R. Brent Wisner, a partner at Los Angeles-based Baum Hedlund, said the arguments were similar to those Bayer made in appealing the $289 million Roundup verdict, also before the First District Court of Appeal. Bayer also made similar allegations in motions it filed soon after the $2 billion verdict.

"Instead of acknowledging that a smart group of jurors thoughtfully and carefully considered the evidence, finding Monsanto both liable and malicious, Monsanto attempts to make this case about the attorneys," Wisner wrote in an emailed statement. "Let me be clear, there was no attorney misconduct. We won because the evidence and science showed not only that Roundup causes cancer, but that Monsanto (now Bayer) hid that risk from consumers for 40 years. The $2 billion in punitive damages was a testament to the gravity of Monsanto's corporate malfeasance. We are confident that the court of appeals will see the same evidence and science and affirm this historic verdict."

The 2019 verdict, by a jury in Alameda County Superior Court, included $55 million in compensatory damages and $2 billion in punitive damages for plaintiffs Alva and Alberta Pilliod. Judge Winifred Smith of the Alameda County Superior Court lowered the jury's award to $86.7 million, including $70 million in punitive damages. She found there was "clear and convincing evidence" that Monsanto's actions were "reprehensible" and showed a "conscious disregard for health."

Among the misconduct claims cited in the brief are plaintiffs counsel's suggestion that a verdict against Bayer could cause the U.S. Environmental Protection Agency to change its ruling on glyphosate and statements that the EPA and other regulatory bodies had "blood on their hands" for refusing to impose cancer warnings on products that used the chemical. Also, plaintiffs counsel allegedly violated court orders to exclude from trial both evidence that glyphosate was in other sources unrelated to the case and references to the prior Roundup verdicts—both of which prompted Bayer's counsel to move unsuccessfully for a mistrial.

"Here, the misconduct was serious, deliberate, and pervasive," Bochner wrote.

In addition to attorney misconduct, Bayer challenged the punitive damages as unconstitutional and duplicative. As in the federal jury's $80 million award now before the U.S. Court of Appeals for the Ninth Circuit, Bayer continued to argue that federal law preempted product liability claims. Also, the EPA, which reaffirmed last month that Roundup ingredient glyphosate was not carcinogenic, did not require a warning label. The Justice Department, along with several medical groups that sided with Bayer in its appeal of the $289 million verdict, filed an amicus brief in the Ninth Circuit appeal supporting the federal preemption argument. 

"The undisputed facts show that Monsanto kept abreast of the most current scientific information and the uniform conclusions of foreign and domestic regulatory agencies that there is no causal link between exposure to Roundup and cancer," Bochner wrote. "For decades, EPA has exhaustively reviewed the science, repeatedly determined that glyphosate does not cause cancer, and consistently approved Roundup for sale with a label that does not warn of cancer." 

Also, Bochner wrote, the Pilliods had not provided sufficient evidence to prove Roundup caused them both to get non-Hodgkin lymphoma. Bayer cited the judge's decision to have a jury decide the claims of both plaintiffs, who had previous other cancers in separate health histories, which gave plaintiffs an "overwhelming advantage" in their claims.

The appeal brief also cited "irrelevant and highly prejudicial evidence" about fraud committed at a testing laboratory called IBT. The judge allowed the evidence into the trial, allowing plaintiffs' attorneys to suggest that Monsanto was involved in fraud against the EPA.

"The jury's verdicts and the damages awarded cannot be reconciled with either the law or sound science, and the court should reverse and enter judgment in favor of Monsanto, or in the alternative, order a new trial on all claims," Monsanto said in a statement.

Bryan Cave Leighton Paisner joined Horvitz & Levy in Monsanto's brief.