A plaintiff whose claims against Monsanto got included in a mass action involving the weedkiller Roundup, wants a federal court in California to return litigation to a state court in Missouri.
U.S. District Court Judge Vince Chhabria is overseeing multi-district litigation against Monsanto, and its parent company, Bayer, over the sale and marketing of the weedkiller.
An evidentiary hearing and another one questioning expert testimony were set for today at the federal court in San Francisco.
The company has denied all allegations that the weedkiller, and specifically glyphosate, causes cancer.
Plaintiff Ronald Klock, on behalf of himself and others, wants their cases kicked back to St. Louis County Circuit Court, arguing that removal to federal court was improper because Monsanto is headquartered in Missouri, and therefore is a citizen of the state.
Monsanto originally removed the case to federal court in Missouri, then to the court in California as part of the multi-district litigation.
"Monsanto...removed this case before it was served, and courts within the Northern District of California have consistently held, based upon the plain meaning of the removal statute, that the limitation on removal on forum defendants does not apply to a forum defendant that was not served at the time of removal," the plaintiff's attorney's argue.
"These rulings are only strengthened by a recent decision by the Third Circuit – the first by any court of appeals to directly address pre-service removal – which also reached the same conclusion," the filing added.
The lawsuit was initially filed in November last year in the 21st Judicial Circuit Court for St. Louis County.
It is claimed the plaintiffs injuries "are a direct and proximate result of Defendant’s negligent, willful, and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, distribution, and/or sale of Roundup and/or other Monsanto glyphosate-containing products." They all claim to have developed Non-Hodgkin’s Lymphoma (“NHL”),due to the use of Roundup.
They argue that the Eastern District of Missouri lacked jurisdiction on the case and that, therefore, it should not have been transferred to federal court in California overseeing the multi-district litigation.
"Missouri courts’ disfavor the type of gamesmanship that defendant has engaged in by filing their notice of removal less than two days from the plaintiffs’ filing of their petition and before the clerk had executed the summons," attorney's for the plaintiff argue. "To permit this type of gamesmanship eviscerates the very purpose of the forum defendant rule."
In a recent hearing, Judge Chhabria described as "shaky" the testimony of two plaintiffs' experts who claim the weed killer causes this type of cancer or likely did so,
Chhabria has called the two experts - Dr. Beate Ritz and Dr. Christopher Portier - back and will later decide whether a jury will hear their testimony.
Their testimony contradicts a recent study by the National Cancer Institute, a government agency, and goes beyond the conclusion of the International Agency for Research on Cancer, which found glysophate is "probably carcinogenic" but did not specify to what extent or identify any particular type.
Chhabria also ruled that plaintiff attorneys are barred from introducing evidence in the initial trial that the company allegedly manipulated evidence, and intimidated scientists and regulators.
Potential jurors are being identified ahead of the trial, which is due to begin Feb. 25.