Judge sanctions plaintiff attorney in Roundup trial for misconduct in opening statements

By Ann Maher | Feb 27, 2019

SAN FRANCISCO - U.S. District Judge Vince Chhabria slapped plaintiff's attorney Aimee Wagstaff with a $500 sanction for delving into forbidden territory in opening statements at trial involving weedkiller Roundup.

Chhabria cited six violations, calling at least five of them premeditated and committed in bad faith.

At issue in the trial that got under way Monday is whether glyphosate in Roundup caused plaintiff Edwin Hardeman's non-Hodgkins lymphoma. Defendant Bayer, which acquired Monsanto last year, argues that glyphosate-based herbicides are safe for use and that extensive scientific research supports that conclusion. 

In pre-trial proceedings, Chhabria barred counsel for Hardeman from introducing testimony about Monsanto's alleged manipulation of science and evidence. He split trial into two parts, indicating he would only allow scientific evidence that might prove a link between the weedkiller and Hardeman's cancer in the first phase. Claims involving the company's conduct would only be allowed in a second phase if jurors first find that Roundup caused his cancer.


Chhabria  

After opening on Monday, Chhabria ordered Wagstaff to show cause why she should not be sanctioned. Wagstaff answered that she did her best to comply with the court's evidentiary rulings, some of which she said were complex and ambiguous, and some entered on the eve of trial.

Chhabria was not persuaded.

"These were not slips of the tongue - they were included in the slides Wagstaff and her team prepared and used for her opening statement, and they were on issues that Wagstaff and her team have made clear throughout the pretrial proceedings they believe are important for the jury to hear at the same time it hears the evidence on causation," Chhabria wrote.

"Nor were the violations borderline - they were obvious violations of both the letter and spirit of the Court's pretrial rulings."

Wagstaff's misconduct cited by Chhabria:

-She spoke to the jury about what the second phase of trial would involve "despite a clear understanding among the parties that this wuold be off limits."

-She spent significant time detailing Hardeman's personal history and when he learned of his cancer, even though this information "is clearly not relevant" to the first phase.

-She quoted from internal Monsanto documents and included excerpts on slides.

-She went into detail with evidence from the International Agency for Research on Cancer (IARC), which was to be limited in phase 1.

-She violated the court's bifurcation order that limited evidence on the EPA's analysis of glyphosate by attempting to tell the jury that the EPA "is vulnerable to political shifts and has had internal disagreement on this issue.

-She violated a ruling on specific causation by making statements about quantitative conclusions related to dose response that can be drawn from scientific research.

Chhabria wrote that it was possible that the last violation "did not reflect bad faith, and the Court will assume so, even though this assumption is questionable given the numerous other violations."

The judge also is requiring Wagstaff to identify all attorneys who participated in preparing her opening statements, and ordering them to show cause why they too should not be sanctioned within 21 days of the end of trial.

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