Northern California Record

Friday, November 22, 2019

In seeking to reverse $2 billion jury verdict, Monsanto says plaintiffs' counsel misconduct was 'egregious and rampant'

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By Rich Peters | Jul 10, 2019

K. Lee Marshall, attorney for Monsanto

OAKLAND – Monsanto bolstered its argument that a jury trial resulting in a $2 billion verdict in May was tainted by misconduct in briefs filed Tuesday calling for a new trial or judgment notwithstanding verdict (JNOV).

The new filings support last month’s post-trial motions in the case of Alva and Alberta Pilliod, the Bay Area couple that claims that Roundup was a substantial factor in causing their non-Hodgkins lymphoma (NHL).

In seeking a new trial, Monsanto identifies what it believes was improper conduct by the Pilliods' legal team.

“First…the misconduct was egregious and rampant,” states the brief filed in Alameda County Superior Court. “Second, the misconduct persisted despite sustained objections and repeated admonishments from the Court. Even Plaintiffs admit the Court had to ‘rein in Counsel when he got heated during rebuttal.’ Third, the atmosphere of the trial was unnecessarily theatrical, with celebrity appearances in the courtroom and counsel’s dramatic demonstrations in which he pretended to be fearful of a Roundup bottle that he knew only contained water. Finally, counsel’s misconduct actually prejudiced the jury, as demonstrated by the excessive punitive damage verdict, which bears no relationship to the evidence or the compensatory damages.”

Additionally, the brief touches on how Monsanto believes the damages awarded are “unsupported, excessive and unconstitutional.”

“Arguing that these noneconomic awards should be sustained, Plaintiffs take the position that any noneconomic award is per se appropriate in a personal injury case and that the court should entirely defer to the jury’s verdict,” the brief states.

“Plaintiffs tellingly ignore the direct, on-point authority discussed at length in Monsanto’s brief and which rejects their stance, despite citing the case for other issues throughout their brief.”

In the meantime, Monsanto challenges a separate $80 million verdict reached in March in federal court in San Francisco arguing recently that in post trial proceedings it witnessed a juror hugging the plaintiff. In a motion the company filed on Monday, it says that same juror - #5 - wrote a letter to presiding Judge Vincent Chhabria urging him to uphold the verdict.

Bayer, which purchased Monsanto last year, continues to stand behind its product’s safety.

“We continue to believe strongly in the extensive body of reliable science that supports the safety of Roundup and on which regulators around the world continue to base their own independent and favorable assessments including EPA’s determination at the end of April that glyphosate is not carcinogenic,” the company recently said in a statement.

After the Pilliod verdict, a Bayer spokesperson told the Northern California Record, “The verdicts do not reflect the evidence presented in the case. Instead, they reflect deep passion and prejudice borne from plaintiffs’ counsel’s improper argument rested on inflammatory, fabricated and irrelevant evidence that should have been excluded.”

More than 13,000 plaintiffs nationwide have filed similar lawsuits claiming that Roundup is linked to their cancer.

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