(L to R) Trial team Jennifer Moore, Moore Law Group and Aimee Wagstaffe, Andrus Wagstaffe, after their $80 Million verdict against Monsanto. Photo: Jason Doiy/ALM

Six attorneys who worked on the plaintiffs' opening statement in the first federal trial over the herbicide Roundup plan to file responses in court Wednesday as to why a federal judge who sanctioned lead trial counsel Aimee Wagstaff should not impose the same penalties on them.

On Feb. 26, U.S. District Judge Vince Chhabria, overseeing the trial in San Francisco, ordered Wagstaff, of Andrus Wagstaff, to pay $500 as a sanction for “obvious violations” of his pretrial orders in her opening statement. The trial, which alleged that Monsanto's Roundup caused a man to get non-Hodgkin's lymphoma, ended in an $80 million verdict for Wagstaff's client March 27. As part of the sanctions, however, Chhabria ordered Wagstaff to provide a list of all attorneys who worked with her on the opening statement for possible sanctions, as well.

Wagstaff provided six names this month: Kathryn Forgie and David Wool, both at her Lakewood, Colorado-based law firm; Baum Hedlund senior managing partner Michael Baum and partner R. Brent Wisner; Mark Burton, of counsel at San Francisco's Audet & Partners; and Jennifer A. Moore, of the Moore Law Group in Louisville, Kentucky, who was Wagstaff's co-counsel at trial.

Wagstaff insisted in an April 10 brief that she had “ultimate decision making responsibility” as to trial strategy and had not presented the opening statement “in bad faith.” If there were any violations, she wrote, they were “not premeditated nor intentional.” She insisted that Chhabria should not sanction any member of her trial team over the PowerPoint slides she showed jurors during her opening because the “decision to include them was mine.”

Wagstaff also requested that the other attorneys be allowed to file their responses under seal, given that the opening statement contained “sensitive attorney work product” and because at least five other trials against Monsanto, now owned by Bayer AG, are planned this year.

“Limiting Monsanto's access to any other attorney response is necessary and appropriate under the circumstances because the attorneys identified above may not be able to adequately explain their role and/or provide the court documentation without exposing attorney trial work product, thus risking severe prejudice to the thousands of plaintiffs with Roundup cases pending before this court and others.”

On Tuesday, Chhabria granted that request. Last week, Chhabria temporarily vacated the second federal Roundup trial, set for May 20, after finding that “the resources of the parties and the court are better spent on organizing the remaining cases in the MDL.”

Wagstaff did not respond to a request for comment, nor did four of the six other lawyers facing possible sanctions. Forgie, who is in Oakland, California, wrote in an email, “It would not be appropriate for me to make a comment at this time.” Burton declined to comment.

In a previously emailed statement, Baum called the sanctions “unfortunate.”

“The lines the court claims Ms. Wagstaff crossed were not clear to us, or even the defendants, a fact underscored by the fact that Monsanto's lawyers did not object to most of the issues during the opening,” he wrote at the time of the sanctions order.

At a sanctions hearing, Moore defended Wagstaff's opening, noting the “unique nature of this trial.” Both she and Baum pointed to Chhabria's decision to bifurcate the trial, which the plaintiff's attorneys had opposed. That decision, they insisted, led to confusion over what was admissible during each of the trial's two phases.

In his sanctions order, Chhabria pointed to six times that Wagstaff violated his evidentiary rulings during her opening.

“Taken together, the first five violations were intentional and committed in bad faith,” Chhabria wrote. “These were not slips of the tongue—they were included in the slides Wagstaff and her team prepared and used for her opening statement, and they were on issues that Wagstaff and her team have made clear throughout the pretrial proceedings they believe are important for the jury to hear at the same time it hears the evidence on causation.”