Seth Waxman.

Monsanto Co. has asked a federal appeals court to reverse a verdict over its herbicide Roundup that it said "defies both expert regulatory judgment and sound science."

In a Dec. 13 brief, former U.S. Solicitor General Seth Waxman and other lawyers for Monsanto, owned by Bayer AG, asked the U.S. Court of Appeals for the Ninth Circuit to reverse the $80 million verdict, later reduced to $25.3 million. They cited federal preemption, "serious legal errors" on causation, and a lack of Monsanto's alleged "reprehensible conduct" justifying punitive damages. The trial, according to Monsanto, was the first in federal court, where 5,000 Roundup lawsuits are pending.

"This appeal has the potential to shape how every subsequent Roundup case is litigated," wrote Monsanto's legal team, led by Waxman, of Wilmer Cutler Pickering Hale and Dorr in Washington, D.C. "That verdict defies both expert regulatory judgment and sound science."

Joining Waxman on the brief were firm partner Paul Wolfson, also in Washington, D.C., as well as former U.S. Homeland Security Department general counsel Philip Perry and Richard Bress, both at Latham & Watkins in Washington, D.C.

Covington & Burling, Bryan Cave Leighton Paisner and Wilkinson Walsh + Eskovitz, which represented Monsanto at trial, also had lawyers on the brief.

Jennifer Moore, of Moore Law Group in Louisville, Kentucky, and Aimee Wagstaff, of Andrus Wagstaff of Lakewood, Colorado, who represented the plaintiff, Edwin Hardeman, did not respond to a request for comment. Leslie Brueckner, a senior attorney at Public Justice, who joined the plaintiff's legal team this month, also did not respond.

Hardeman's March 27 verdict was the second to find that Roundup caused someone to get non-Hodgkin lymphoma. A previous jury, in San Francisco Superior Court, had awarded $289 million, later reduced to $78 million, and jurors in Alameda County Superior Court awarded $2 billion to a California couple May 13.

In Hardeman's case, U.S. District Judge Vince Chhabria of the Northern District of California refused to toss the award, including punitive damages, citing Monsanto's "reprehensible" conduct. But he lowered punitive damages, which he considered "constitutionally impermissible," to a 4:1 ratio to Hardeman's compensatory damages.

That still was unjustified, Monsanto's lawyers wrote in their Ninth Circuit brief, particularly given that the scientific literature when Hardeman was diagnosed in 2015 found that Roundup ingredient glyphosate did not cause cancer in humans.

Monsanto also continued to insist that Chhabria should have allowed it to introduce the conclusions of not just the U.S. Environmental Protection Agency, which found glyphosate to be safe, but those of numerous regulatory agencies around the world. Plaintiffs lawyers had relied on the 2015 decision by International Agency for Research on Cancer, which classified glyphosate as a carcinogen.

"Even though expert regulatory agencies worldwide, including the EPA, have concluded that glyphosate does not cause cancer, and even though no scientific studies have yielded reliable evidence of such causation, the district court allowed the jury to return a massive verdict against Monsanto," Monsanto's lawyers wrote.

Monsanto also argued that the Federal Insecticide, Fungicide, and Rodenticide Act preempted Hardeman's claims. Citing the U.S. Supreme Court's decisions in Wyeth v. Levine and Merck Sharp & Dohme v. Albrecht, its lawyers argued that Monsanto could not have warned consumers about Roundup's alleged cancer risks, even if it wanted to, because there was "clear evidence" that the EPA would have rejected such a label change.

It also challenged Chhabria's rulings allowing plaintiff's causation experts, who "cherry-picked data from flawed studies," and his jury instructions relating to causation.

"Hardeman's suit should never have gone to the jury because his expert opinions on the central issue in the case—whether glyphosate caused Hardeman's illness—should not have been admitted," Monsanto's lawyers wrote.