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Thursday, January 23, 2020

Monsanto says $80M Roundup verdict was product of made-for-litigation testimony, asks judge to reconsider


By Dan Fisher | Jun 5, 2019


SAN FRANCISCO (Legal Newsline) - Monsanto has asked a federal judge to throw out an $80 million jury verdict over its Roundup herbicide, saying the plaintiff failed to present any admissible scientific evidence the product caused the plaintiff’s cancer. 

The unit of Bayer AG faces long odds before U.S. District Judge Vince Chhabria in San Francisco, who is overseeing thousands of similar lawsuits in the Roundup multidistrict litigation. Chhabria heard most of Monsanto’s arguments and rejected them already, ruling in a February order that while the plaintiffs’ scientific evidence was “shaky,” they had “barely inched over the line.”

Monsanto says plaintiff lawyers crossed that line by presenting expert testimony that violated the judge’s orders and improperly suggested to jurors that the plaintiff, Edwin Hardeman, had exposed himself to more than double the risk of contracting non-Hodgkin’s lymphoma by spraying Roundup when there was no credible evidence to support that conclusion. A doubling of the risk is considered sufficient in most courts for a jury to determine a substance more likely than not caused a plaintiff’s injury.

“Plaintiffs failed to present any admissible expert testimony on the issue of causation, and so Monsanto is entitled to judgment notwithstanding the verdict or, at minimum, a new trial,” the company said. The judge excluded some experts, including Dr. Chadi Nabhan, whose testimony was an important factor in a $2 billion state court verdict in California in May. But he allowed in others including Dr. Denis Weisenberger, a pathologist who told jurors Roundup most likely caused Hardeman’s cancer even though he had other known risk factors including Hepatitis B and C. 

The company also complained that Judge Chhabria allowed plaintiff lawyers to present Environmental Protection Agency documents they say reveal Monsanto’s efforts to influence the agency’s treatment of Roundup, but refused to allow in documents from the EPA and other government agencies around the world that have universally declared glyphosate, the active ingredient in Roundup, to be safe and non-carcinogenic. The EPA reiterated that conclusion as recently as April 30.

In its motion filed May 31, Monsanto asked the judge either to throw out the verdict, the jury’s award of $75 million in punitive damages, or grant the company a new trial. 

Monsanto has been sued by more than 11,000 plaintiffs claiming Roundup and glyphosate causes cancer. Their claims rest mostly upon contested laboratory studies and the conclusion of the International Agency for Research on Cancer, an arm of the World Health Organization that declared Roundup “probably carcinogenic to humans” in 2015. The non-voting chairman of the IARC panel on Roundup, Chris Portier, signed a consulting agreement with plaintiff lawyers days after the IARC issued its conclusion. The IARC has also declared cellphones as possibly carcinogenic. 

In its motion, Monsanto said the plaintiff depended upon the testimony of Weisenburger, who performed what he called a “differential diagnosis” to rule out Hardeman’s other risk factors for cancer, leaving only Roundup as the possible cause. Weisenburger’s testimony “was untested, is not commonly used by pathologists and was made purely for this litigation,” the company said. Without it, the plaintiff couldn’t prove specific causation. 

Plaintiffs in toxic torts cases must prove both general causation (the defendant’s product is capable of causing cancer) and specific causation (the product caused the cancer in this specific person). Monsanto says the plaintiffs failed on both counts with Roundup. Their experts based general causation mostly on a single contested study that failed to separate out the potential effects of Roundup on farm workers from more than 40 other pesticides. Much larger studies on farmworkers designed to look specifically at Roundup have found no link between the widely used weed killer and non-Hodgkin’s lymphoma.

Monsanto also said the jury’s $5 million award for non-economic damages was excessive given the plaintiff’s cancer is in full remission and he suffered only $200,000 in economic damages. The $75 million in punitive damages not only exceeds the constitutional limit generally seen as 10-to-1 but is unjustified given Roundup is approved by every major national regulatory agency and with the exception of IARC, a non-governmental organization, has been declared safe, the company argues. 

The company is also pinning its hopes on the doctrine of preemption, under which courts can find tort liability is preempted by federal regulations dictating how a company must label and sell its products. The U.S. Supreme Court recently reaffirmed this doctrine in Merck v. Albrecht, ruling defendants can show preemption if there is “clear evidence” federal regulators would refuse the labeling change plaintiff lawyers say is required to avoid liability. In the case of Roundup, Monsanto said, U.S. law requires it to obtain permission from the EPA before it changes the label and the EPA has clearly stated it doesn’t consider the product to be carcinogenic.

The stakes are high for Monsanto in this case since it was a “bellwether” trial intended to establish fundamental facts in the multidistrict litigation including whether Roundup can cause cancer and the level of damages. Judge Chhabria has already hired master mediator Ken Feinberg to try to conduct settlement negotiations between plaintiff lawyers and Monsanto, but a global settlement could be difficult to obtain given basic disagreements over the science and the strong possibility plaintiff lawyers, emboldened by success with non-Hodgkin’s lymphoma, start suing over other common cancers.

Judge Chhabria hasn’t been entirely favorable toward plaintiff lawyers in this case. He sanctioned attorney Aimee Wagstaff in February for violating pretrial orders in her opening statement, including discussing scientific studies and internal Monsanto documents the judge had ruled inadmissible. He sanctioned attorney Jennifer Moore in May for joining in Wagstaff’s misconduct. 

Bayer shares have lost nearly 30% of their market value, or $20 billion, since the beginning of the year amid adverse Roundup verdicts. 

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