By Dorothy Atkins
Law360, Oakland, Calif. (April 25, 2019, 9:54 PM EDT) — A California judge said Thursday she’ll likely allow jurors to consider awarding punitive damages in the third jury trial over claims that Monsanto‘s popular Roundup weedkiller causes cancer, after the Bayer AG unit argued that there’s no evidence its conduct was malicious.
During a hearing in Oakland, Monsanto’s counsel, Eugene Brown Jr. of Hinshaw & Culbertson LLP, argued that allegations Monsanto knew of Roundup’s cancer risks in the 1980s are “completely speculative.” Brown said that in order for punitive damages to be awarded, a defendant’s conduct must be vile and despicable.
“There is absolutely no evidence that its conduct rises to that level,” he said.
But the counsel for the plaintiffs, Brent Wisner of Baum Hedlund Aristei & Goldman PC, noted that juries sitting on the two previous trials over claims Roundup causes cancer were asked to decide whether punitive damages were warranted and both juries awarded them. He said in this trial, there’s “considerably more evidence” that Monsanto’s conduct was malicious, including that Monsanto allegedly ghostwrote academic articles to intentionally mislead the scientific community about Roundup’s safety.
After oral arguments, Alameda Superior Judge Winifred Smith said her tentative ruling is that she will likely deny Monsanto’s motion to strike punitive damages, but she said she would read all the briefs before deciding.
The arguments came during a hearing without the jury present on jury instructions, the verdict form and Monsanto’s motion to strike punitive damages in a trial that kicked off March 28.
The case was brought by plaintiffs Alva and Alberta Pilliod, who are 76 and 74, respectively, and claim that decades of spraying the weedkiller on their four properties gave them both aggressive cancer. The Pilliods rested their case-in-chief on Tuesday, and Bayer will call its first witnesses Monday.
During the hearing Thursday, Brown said the few small studies that suggested Roundup’s active ingredient, glyphosate, might be carcinogenic weren’t published until the 1990s, and that there was no evidence that glyphosate could cause cancer until the International Agency for Research on Cancer concluded glyphosate is a probable carcinogen in 2015. Therefore, he said, the company couldn’t have been reasonably expected to warn consumers about Roundup’s potential risks, because it didn’t think it was dangerous and “no one else did.”
“The science had not evolved to the point to reach the conclusion that exposure to Roundup causes non-Hodgkin lymphoma,” he said. “At most, it’s a probable carcinogen.”
But Wisner said there’s evidence that Monsanto has repeatedly refused to conduct certain cancer studies on Roundup since 1983 and refused to change its Roundup formula to replace the ingredient polyethoxylated tallow amine, which has been banned in Europe and allegedly makes glyphosate 50 times more toxic.
Monsanto also didn’t warn consumers to take extra safety precautions when using the product, Wisner said. Instead, the company continued to advertise Roundup using ads that showed people spraying the product without gloves, while wearing t-shirts and shorts, Wisner said.
Wisner said Monsanto’s conduct recklessly put people’s lives in danger and constitutes malice under the law. He added that there wouldn’t be any lawsuits if the court accepted Bayer’s argument that no one knew about glyphosate’s cancer link in the 1980s. Wisner said what the company knew about glyphosate’s cancer risks and when are being revealed through litigation, and that the process is akin to the Big Tobacco cancer litigation in the 1990s.
“We’re seeing that happen, we’re living through the history right now,” Wisner said.
In addition to the punitive damages arguments, the parties also argued over whether the jury should be instructed using the “but for” causation standard — meaning, a harm would not have happened if not for a party’s actions — or the less-demanding “concurrent causation” standard that can hold more than one party liable for causing a disease.
Monsanto’s counsel, Tarek Ismail of Goldman Ismail Tomaselli Brennan & Baum LLP, said the court should use the but-for standard, because the Pilliods’ experts refused to concede that there could have been other contributing factors that caused the Pilliods’ cancer. However, Wisner argued that the tougher standard wasn’t warranted and that the other trials used the concurrent causation standard.
Judge Smith said she would look over the case law and decide the issue. She also noted that the verdict form should ask the jury to make separate findings for Alva and Alberta.
“I think it’s important that [the jury] understand these are two separate cases being decided together,” she said.
The Pilliod trial is the third case to go to trial out of approximately 11,200 lawsuits pending that allege Roundup causes cancer.
The first trial against Monsanto over Roundup’s links to cancer was held last summer in state court in San Francisco, and resulted in a $289 million verdict against Monsanto, including $250 million in punitives. A judge later slashed the total award to $78 million. Bayer filed its opening brief appealing the judgment in state appeals court Tuesday. The second trial, Ed Hardeman v. Monsanto, ended last month in federal court with an $80 million verdict, including $75 million in punitive damages, which Bayer has said it will appeal.
At the end of the hearing Thursday, Wisner said Bayer publicly released the names and contact information of jurors who sat on the first trial when the company filed its appeal Tuesday, and asked the judge to prohibit Bayer from releasing the names of the jurors in this case. Monsanto’s counsel, Kelly A. Evans of Evans Fears & Schuttert LLP, said he didn’t know the details of the appeal, but he said they “certainly agree” they wouldn’t release the names of the jurors in this case.
The Pilliods are represented by Michael Miller of The Miller Firm, Brent Wisner and Pedram Esfandiary of Baum Hedlund Aristei & Goldman PC and Steven J. Brady of the Brady Law Group.
Monsanto is represented by Kelly A. Evans of Evans Fears & Schuttert LLP, Tarek Ismail of Goldman Ismail Tomaselli Brennan & Baum LLP and Eugene Brown Jr. of Hinshaw & Culbertson LLP.
The case is Pilliod v. Monsanto Co., case number RG17862702, in the Superior Court of the State of California, County of Alameda.