LITTLE ROCK, Ark. (Legal Newsline) - A narrow majority of justices on the Arkansas Supreme Court refused to intervene in a state judge’s order requiring Bayer AG Chief Executive Werner Bauman to subject himself to a deposition in one of tens of thousands of lawsuits claiming Roundup herbicide causes cancer.
The decision drew dissents from three of the court’s seven justices, with one writing that it gives Arkansas courts “carte blanche” to act without regard to “our rules of civil procedure, federal precedent, or international treaties.”
“American CEOs should fear similar lack of action and comity in foreign lawsuits,” dissenting Justice Rhonda K. Wood wrote.
The case in Drew County Circuit Court is identical to thousands of others, with Cornelius Kilgore claiming he contracted non-Hodgkin’s lymphoma after years of using Roundup he purchased at Walmart. The U.S. Environmental Protection Agency and regulators in most other nations reject claims that Roundup causes cancer, but plaintiff lawyers seized upon conclusions by the International Agency for Cancer Research suggesting a link to win large jury awards in the U.S.
Bayer fought the deposition order, arguing Baumann had no involvement in the formulation and labeling of Roundup, which was developed decades before Bayer bought Monsanto, and that he couldn’t be ordered to appear in Drew County court as an agent of a subsidiary company. When the judge rejected their argument, Bayer sought a writ of mandamus for the Arkansas Supreme Court to intervene.
The court refused, in a brief opinion by Chief Justice John Dan Kemp.
“This court has, on several occasions, specifically held that a petition for writ of certiorari is not an appropriate remedy when a party seeks to reverse a discovery order,” he wrote.
Monsanto didn’t argue the circuit court lacked jurisdiction, but rather that the court misinterpreted the Hague Convention limiting access to foreign citizens for U.S. depositions and that under the so-called apex doctrine, the deposition would subject Baumann to “annoyance, embarrassment, oppression, or undue burden or expense.”
The Arkansas Supreme Court said it previously intervened in a discovery request when it involved protected trade secrets. But it has since limited its oversight to narrow issues of property law and the majority said the court wouldn’t expand the scope of its doctrine. The apex doctrine protecting top executives from routine discovery requests hasn’t been adopted in Arkansas, the majority said.
Justice Wood dissented, joined by justices Shawn Womack and Barbara Webb, saying the case involved more than “a routine discovery dispute.”
“On the face of the record, the circuit court committed two plain, manifest, and gross abuses of discretion,” Justice Wood wrote. First, the judge ordered Baumann’s deposition without a subpoena, which is only allowed if he is a party and Bayer isn’t named in the litigation. As CEO of Monsanto’s parent corporation, he is not under Monsanto’s control and only Monsanto can name its managing agent, the justice wrote. Baumann played no role in the formulation or labeling of Roundup, which Bayer purchased when it acquired Monsanto, the judge wrote.
Second, the Hague Convention requires a hearing before subjecting foreign citizens to U.S. civil court procedure, the judge wrote. While the U.S. Supreme Court has ruled that the treaty doesn’t override the jurisdiction of U.S. courts, she went on, it cautioned them to exercise “special vigilance” to protect foreigners against overly burdensome discovery requests.
“I doubt any members of the Supreme Court contemplated that a trial judge in Arkansas would refuse a hearing on the application of the international Hague Convention, deny its guidance in one sentence, call the argument for its application `unmeritorious,’ and order that the first deposition in the case be the foreign CEO of a nonparty multinational corporation in an ordinary products-liability case,” she wrote.