Oral arguments were heard earlier this month in an appeal of a jury verdict and award to a couple who claim they contracted cancer from the herbicide Roundup.
Defendant Monsanto, acquired in 2018 by the German conglomerate Bayer, is appealing the verdict and award in favor of Alva and Alberta Pilliod of Livermore, California.
David Axelrad, attorney for the company, argued before the First Appellate Court in California that the case should be dismissed on the basis of federal pre-emption and the claimed lack of scientific evidence linking an ingredient in the weed killer, glyphosate, to users contracting cancer, particularly non-Hodgkin's lymphoma (NHL).
But First Appellate District Justice J. Anthony Kline, referring to the written briefs already with the court, said some of the evidence presented amounted to a “distortion of facts," according to a report in Courthouse News, which added that the judge considered dismissing the appeal.
Monsanto is not acting with malice or using trickery or deception, Axelrad told the court.
“There is no evidence of an attempt to conceal information,” Axelrad said. “And there is no evidence that would support a clear and convincing basis for the awarding of punitive damages.”
The couple were initially awarded over $2 billion, later reduced to $87 million, after the jury agreed the couple's non-Hodgkin's Lymphoma was linked to their use of Roundup.
In reducing the award on the basis the amount was unconstitutionally large, Alameda County Superior Court Judge Winifred Smith said evidence also supported the finding that Monsanto knew the herbicide’s active ingredient, glyphosate, could be dangerous and failed to warn.
But Monsanto, in its arguments at the appeals court, attacked plaintiffs’ counsel, claiming they were involved in misconduct that was "serious, deliberate, and pervasive." The company cited as an example the jury being told edict and an enormous damage award.
For instance, counsel made inflammatory and disparaging comments, stating that EPA and EFSA would have “blood on their hands” if they are wrong about glyphosate
The company also argues the EPA has determined the placing of a cancer warning, which is included on packaging in California, is not supported by science.
It also said that the couple's prior medical history was not fully considered by the jury prior to delivering its verdict.
Bayer is separately attempting to agree to a global settlement of multi district litigation being handled by a federal judge in northern California.
At the same time, the company is fighting on several other fronts, including appealing previous verdicts in state courts.