RoundUp weed killer.

A San Francisco judge overseeing the first Roundup trial in federal court has agreed to separate out prospective jurors who know about this year's groundbreaking $289 million verdict against Monsanto, according to a lawyer familiar with the decision.

Monsanto, facing trial in two months, had asked U.S. District Judge Vince Chhabria of the Northern District of California to strike prospective jurors who might have “particularized knowledge” about the jury's Aug. 10 award for plaintiff Dewayne “Lee” Johnson. Chhabria's order, made at a Dec. 5 hearing, stopped short of Monsanto's request but would allow for separate groups of jurors during voir dire based on whether they knew about the verdict.

Chris Loder, vice president of communications at Bayer, which acquired Monsanto this year, said in an emailed statement that the company's “goal is to have a fair trial, and we will continue to do what we can to ensure that we have an impartial and unbiased jury that will decide the case on the evidence before it and nothing more.” 

“Regarding the jury selection process in the federal MDL, in addition to using a jury questionnaire, the court has agreed to separate potential jurors into those who are aware of the verdict in Johnson and those who are not. We believe these are positive steps towards preventing the risk of prejudice among jurors in these cases,” Bayer added.

Plaintiffs lawyers—Aimee Wagstaff of Andrus Wagstaff in Lakewood, Colorado; Robin Greenwald of New York's Weitz & Luxenberg; and Michael Miller of The Miller Firm in Orange, Virginia—did not respond to requests for comment.

In a Nov. 30 letter, Monsanto's lawyers wrote that the likelihood of a tainted jury pool in San Francisco, particularly given the publicity over the first verdict for plaintiff Johnson was “substantial.”

“This is not simply a case where a substantial percentage of the jury pool bears some general animus against one of the parties,” wrote Washington, D.C., lawyers Brian Stekloff, of Wilkinson Walsh + Eskovitz, and Eric Lasker, of Hollingsworth, as well as Los Angeles attorney Pamela Yates at Arnold & Porter Kaye Scholer. “Here, there is substantial animus toward Monsanto, which is compounded by publicity surrounding the Johnson verdict.”

Plaintiffs lawyers, in a Nov. 30 court filing, said Chhabria did not have to go through a separate voir dire process to weed out jurors with knowledge of the verdict, which San Francisco Superior Court Judge Suzanne Bolanos reduced by more than $200 million.

“Here, media coverage concerning the Johnson case, and general Roundup litigation, does not rise to the level of concern to create a presumption of prejudice,” they wrote. They noted that San Francisco was a large metropolitan area and that news reports about Roundup had been “largely factual.”

Moreover, the filing continued, they have concerns about paid “news” articles that they allege Monsanto used to taint the jury pool in the first trial.

“This prejudicial media, presumably paid for by Monsanto and targeting the Bay Area, could easily have contaminated the jury against the plaintiffs,” they wrote.

Chhabria, who is overseeing more than 600 lawsuits over Roundup, has scheduled the bellwether trials to start in 2019, with the first group involving four cases brought in his district, the Northern District of California.

The first trial, set to begin Feb. 25, involves Edwin Hardeman, 70, who sprayed Roundup to control poison oak and weeds on his property in Sonoma County starting in the 1980s. He was diagnosed with non-Hodgkin's lymphoma in 2015.

Monsanto began raising concerns about juror bias soon after the Johnson trial. In an Oct. 22 update to the court, Monsanto insisted on “additional precautions” in the next trial, such as having more than 500 prospective jurors available, a separate questionnaire about media exposure and a gag order preventing lawyers from talking to the press during jury selection.

Chhabria prompted letters from both sides in ordering them to each address the juror issue.

In its letter, Monsanto did not seek a change in venue. Rather, the St. Louis-based company wanted Chhabria to automatically strike prospective jurors who have “particularized knowledge” about the first verdict.

“Monsanto believes that specific knowledge of the Johnson verdict is precisely the type of highly prejudicial information for which bias should be presumed,” they wrote. “Given the stakes of this lead trial, the safer course is to conduct the additional voir dire to ensure an unbiased jury.”

Monsanto cited “inflammatory news coverage,” an opinion article in the San Francisco Chronicle written by celebrities Neil Young and Daryl Hannah, and online and social media blogs. Monsanto also hired a marketing research expert whose survey, attached to the letter, found that 40 percent of respondents who knew about Monsanto said they “would rule against Monsanto in a hypothetical lawsuit” and that 33 percent knew about the Johnson verdict.

“Not surprising,” Monsanto's lawyers wrote, “respondents with knowledge of the Johnson verdict were more likely to harbor animus toward Monsanto.”

But plaintiffs' lawyers, in their letter, wrote that an ordinary voir dire would suffice—then raised their own questions about Monsanto tainting the jury pool. In addition to paid “news” articles, they criticized Scott Partridge, former general counsel of Monsanto who is now general counsel for Bayer's U.S. operations, for “spreading falsehoods” in media interviews soon after the verdict.

In a footnote, they wrote: “Plaintiffs are currently engaging in discovery to determine if, in fact, Monsanto was attempting to covertly contaminate the jury pool during the Johnson trial by promoting misleading news articles at Bay Area residents. Depending on what plaintiffs discover, plaintiffs may seek special relief from the court to enjoin any attempt to tamper with the jury in Hardeman.”