Winifred Smith Alameda County Superior Court Judge.Photo: Hillary Jones-Mixon.8/04/2011.055-2011

OAKLAND — An Alameda County Superior Court judge says she's inclined to grant a new trial in a case that garnered a $2 billion verdict against Monsanto unless the plaintiffs, who claim that the company's Roundup herbicide causes cancer, agree to lower damages.

“The court finds the evidence can support a finding by clear and convincing evidence that Monsanto committed malice, oppression, or fraud,” Judge Winifred Smith wrote in a tentative ruling Thursday. “The evidence did not show that Monsanto consciously disregarded a known or probable danger as shown in the public scientific literature.”

In post-trial arguments Friday in Oakland, Smith quietly listened as plaintiffs lawyers asked the judge not to touch economic damages and suggested they would be willing to accept a 9:1 ratio of punitive to compensatory damages, adding up to around $500 million in punitive damages. Meanwhile, Monsanto spent much of the hearing drawing parallels to a Johnson & Johnson talc case where the Court of Appeal granted a new trial and reduced verdict.

The conditional and tentative ruling rolls back a May 13 verdict granting Alva and Alberta Pilliod $1 billion in punitive damages each for Monsanto's alleged role in causing the couple's non-Hodgkins lymphoma. The Pilliods received the largest award out of three other trials alleging Roundup use caused cancer.

At Friday's hearing, the Pilliod's lawyers said that the verdict should aim to deter Monsanto's conduct. “If it doesn't sting, it's a waste of time,” said Michael Miller of The Miller Firm in Orange, Virginia, citing Simon v. San Paolo U.S. Holding.

Miller also argued that Monsanto's argument for reversing the jury's decision would make the Seventh Amendment a joke. “Nothing they told you this morning was accepted by the jurors,” he said. “What on earth are we doing bringing these people in if we are going to disregard what they decide?”

Tarek Ismail, a partner at Goldman Ismail Tomaselli Brennan & Baum representing Monsanto, argued that the excessive $2 billion punitive award reflected a tainted process. Ismail said the jury's decision to issue the same award to both Alva and Albert Pilliod, despite different time periods and severity of their illnesses, is evidence that jurors acted upon passion, prejudice and fear, rather than the facts of the case

Ismail argued that fear could've been inspired by the plaintiffs lawyers misconduct and breach of court orders.  When the plaintiffs' team handled a Roundup bottle filled with water with gloves, and sprayed it near the juror box, Ismail said the jurors visibly jumped back and one asked if they should be concerned about the incident.

“The question is was there a result obtained here more favorable for the offending party than they otherwise would have obtained,” he said.

Smith acknowledged the plaintiffs' misconduct in her tentative ruling but wrote that the actions did not cause prejudice.

To support its motion for judgment notwithstanding the verdict, Monsanto's legal team cited Echeverria v. Johnson & Johnson, a recent Second District Court of Appeal siding with Johnson & Johnson in a talc powder products liability case, in part, because it could be reasonably argued whether talc powder use caused ovarian cancer. “In the J&J case, statistical association between talc and ovarian cancer remained under scientific investigation,” said Monsanto attorney Lee Marshall, a partner at San Francisco's Bryan Cave Leighton Paisner. “That is true in this case, given that there were new studies coming out in the midst of trial.”

Marshall also pointed to a ruling by U.S. District Judge Vince Chhabria of the Northern District of California to argue that punitive damages were inappropriate. Earlier this week, Chhabria cut down a “constitutionally impermissible” $80 million punitive damages award given to Edwin Hardeman, who claims he contracted non-Hodgkin lymphoma after spraying his 56-acre Sonoma County property with Roundup for about 20 years. Chhabria lowered the damages to about $25.3 million. “Monsanto's conduct, while reprehensible, does not warrant a ratio of that magnitude, particularly in the absence of evidence showing intentional concealment of a known or obvious safety risk,” he wrote.

Marshall said that Chhabria's ruling proves that Monsanto's communications with the United States Environmental Protection Agency did not demonstrate despicable behavior. “Even Judge Chhabria held that Monsanto's relationship with EPA employees did not render invalid the EPA's regulatory determination on glyphosate.”

Smith said she would return a ruling on the post-trial arguments shortly.