As Monsanto prepares for 2019 Roundup trials, legal expert suggests choosing Ph.D-type jurors

By Amanda Robert | Dec 10, 2018

SAN FRANCISCO - As Monsanto appeals a closely-watched case over its leading weed-killer Roundup, and readies several more cases for trial in both federal and state courts, a looming question is whether the company’s conduct is truly worthy of large punitive damages, one legal expert says.

“Resolving that question would greatly affect the settlement value of the queue of claims Monsanto faces,” said David Levine, a legal professor who teaches civil procedure and remedies at the University of California Hastings College of the Law.

In August, a San Francisco County Superior Court jury ordered Monsanto, now a subsidiary of German pharmaceutical company Bayer AG, to pay former school groundskeeper Dewayne “Lee” Johnson $250 million in punitive damages and nearly $40 million in compensatory damages after finding he contracted non-Hodgkin’s lymphoma from using Roundup.

Johnson’s case was the first to go to trial among thousands brought nationwide against Monsanto by plaintiffs who claim they developed cancer or other serious illnesses from exposure to glyphosate, the main ingredient in Roundup.

Gary Baise  

At an October hearing on Monsanto’s post-trial motions, which Levine attended, he said Superior Court Judge Suzanne Bolanos raised questions about the adequacy of the plaintiff’s evidence. He also pointed out that in her tentative ruling, she appeared ready to vacate the entire punitive damages award.

However, in Bolanos’ final ruling, she left intact the jury’s compensatory award of $39.25 million, but also cut the punitive award to $39.25 million.

Levine, who teaches two blocks from the courthouse where the Johnson case was tried, contended that there was minor pressure placed on the judge in the form of letters to the court from some of the jurors in support of the verdict, pro-plaintiff news stories and at least one op-ed in the San Francisco Chronicle by singer Neil Young and actress Daryl Hannah.

“Although the judge changed her mind on some issues after issuing her tentative ruling, I can't believe that the letters and news coverage caused her to change her mind,” Levine said.

“In any event, she reduced the verdict for Johnson from $289 million to below $80 million,” he added. “That is hardly bowing to the requests to leave the verdict exactly as the jurors rendered it.”

Another significant question facing Monsanto, which has consistently denied that glyphosate is dangerous, is whether its lawyers can persuade jurors that science is on the company’s side in its upcoming trials.

The first federal trial in the multidistrict litigation, In re: Roundup Products Liability Litigation, Hardeman v. Monsanto, begins on Feb. 25 in the U.S. District Court for the Northern District of California in San Francisco.

Many cases filed in California state courts are also consolidated in the Roundup Judicial Council Coordination Proceedings. Its first trial, brought by plaintiffs Alva and Alberta Pilliod, is scheduled for March 18 in Oakland.

Bayer said in a statement provided to Northern California Record-Legal Newsline that glyphosate-based herbicides have been used safely and successfully for more than four decades and are valuable in helping farmers worldwide deliver crops to markets and practice sustainable farming, by reducing soil tillage, soil erosion and carbon emissions.

“There is an extensive body of research on glyphosate and glyphosate-based herbicides, including more than 800 rigorous studies submitted to EPA, European and other regulators in connection with the registration process, that confirms that these products are safe when used as directed,” according to the statement from Bayer. “Notably, the largest and most recent epidemiologic study – the 2018 independent National Cancer Institute long-term study that followed over 50,000 pesticide applicators and was published after the IARC monograph – found no association between glyphosate-based herbicides and cancer.

“Additionally, EPA’s 2017 post-IARC cancer risk assessment examined more than 100 studies the agency considered relevant and concluded that glyphosate is ‘not likely to be carcinogenic to humans,’ its most favorable rating.”

The World Health Organization’s International Agency for Research on Cancer’s classification of glyphosate as a probable human carcinogen was a primary point of contention in the Johnson trial.

Gary Baise, a principal attorney at OFW Law in Washington, D.C. – who specializes in Clean Water Act, Clean Air Act and National Environmental Policy Act litigation, as well as agricultural corporate governance issues – contends that Monsanto needs to overcome the “reptile theory” in order to succeed in court.

“What the plaintiff lawyers try to do is appeal to your basic feelings, gut feelings,” he said. “Would you think it would be right of someone to hit you in the face? No, that’s not right, is it? That’s what they play on. They appeal to basic fears, wants, needs, all based on research done on our brain.”

When Baise tries a case that is heavy in complex science, he said he works to pick jurors who have a high school or college education that was strong in biology or chemistry, and then plays to those people during trial.

“In trying a case like this, I would have tried to get every Ph.D.,” he said.

Baise also attempts to bring in experts from local universities that will be familiar to the jurors and retired scientists from governmental organizations who will also appear credible to them.

“What these things come down to is credibility,” he said. “As you saw, Monsanto was not credible, apparently, to the jury.”

Levine agreed that the issue of allowing jurors to consider complex scientific evidence has been widely debated in legal academic circles.

He explained that there have been proposals for venues like a “science court” where experts would decide complex scientific issues, but those proposals would “run afoul of the right to trial by jury.” He said courts have also rejected the idea that there should be a complexity exception to jury trials.

“The trial lawyers have to use their skills to work with experts to present the science to juries as best as they can,” Levine said. “Also, in recent years federal trial judges have been required under the Federal Rules of Evidence, and the Daubert ruling from SCOTUS, to be gatekeepers so truly bad scientific evidence is kept from jurors.”

As to a final question of whether Monsanto would fare better with bench trials in the future, Baise and Levine both said plaintiffs are entitled to bench trials and usually demand them in these types of cases.

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