Monsanto should pay big to a California man because it did not provide sufficient warnings about the weedkiller Roundup’s cancer risks, his lawyer told a federal jury in opening statements in the second phase of the Roundup lawsuit cancer trial. His attorney would not put a number on the number of punitive damages his client seeks but noted that Bayer acquired Monsanto for $63 billion two years ago. (Law360.com)
The roundup lawsuit attorney for plaintiff Ed Hardeman, who is Aimee Wagstaff, informed the six-member jury that Monsanto should be severely punished for not conducting its own long term cancer studies and for not warning consumers about the health risks of its products.
Wagstaff requested the jury to find the company liable for failure to warn claims, and to award Hardeman $200,000 to cover his medical costs. If the jury determines Monsanto is liable, Wagstaff stated it would be up to the panel to decide how much the company should pay in punitive and non economic damages. But she noted that Monsanto has almost $2.5 billion cash on hand and has a total worth of $8 billion. (Phys.org)
The attorney’s comments came during the beginning of the second phase of the two-part trial over Hardeman’s contention that using Roundup for decades on his 56-acre California property caused him to develop non-Hodgkins lymphoma. After a week of deliberations, the jury determined this week that Roundup was likely a major factor in causing the cancer. This dealt Monsanto a serious financial blow in the federal bellwether trial. It set the stage for the second phase of the trial, which determines damages and liability.
Before the start of the second trial, Monsanto’s attorney, Julie B. Rubenstein, requested the court to exclude some of the company’s financial data, such as the amount Bayer paid Monsanto for the acquisition of assets, and that its ex-CEO received $32 million when he left Monsanto last year. Rubenstein contended that the numbers are irrelevant to the conduct at issue, or the use of Roundup by Hardeman, which went back 30 years.
Judge Skeptical of Monsanto Argument
Regarding suppression of financial data, US District Judge Vince Chhabria was skeptical. He said he fails to see how the statistics are not related to what he called the ‘outrageousness of Monsanto’s conduct,’ and the ability of Bayer to pay substantial damages. The judge let Hardeman’s attorneys mention the amount of the acquisition, but he would consider whether some of the 2017 and 2018 statistics were relevant to the case.
Legal experts note it was Chhabria who had the trial split into two parts, a method that legal experts say give Monsanto the best chance of winning. But even with Monsanto’s advantage in the trial, Hardeman won the first part of the trial earlier this week. As the case moved into the second phase, it seemed Chhabria was not as eager to hold back the plaintiff’s attorneys. (Bloomberg.com)
Wagstaff Blasts Monsanto for Conduct
After this discussion, Wagstaff informed the jury during opening statements that Monsanto never performed private epidemiological studies of the weedkiller, and any animal studies it did were very short.
The attorney for Hardeman also criticized Monsanto executives for attempting to downplay cancer risks that have been associated with the product for decades. Wagstaff noted a 1986 document where the EPA told Monsanto that its mouse study testing the safety of glyphosate was based on inadequate data and should be redone. But Monsanto declined to do the study again.
Wagstaff further quoted a 2003 document by a toxicologist for Monsanto named Donna Farmer, who stated the company could not say definitively that Roundup was not a carcinogen, as it had not done enough testing to make the determination. Wagstaff further accused Farmer of ghost writing several white papers that concluded there was no link between cancer and glyphosate.
Aside from the conduct of the toxicologist, Wagstaff argued the company ignored another toxicologist’s findings. Monsanto hired Dr. James Perry in 199. Perry made the conclusion that glyphosate could be toxic to human genes, and recommended Monsanto should do eight or nine more studies. Monsanto declined to do so.
The plaintiff’s attorney also noted that the approval of Roundup by EPA was based on a single, invalid and unrepeated study and that the EPA only relied on information that Monsanto provided.
Monsanto Attorneys Push Back
But during the opening statement for Monsanto, attorney Brian Stekloff argued that Roundup is actually the most tested weedkiller in the world, and the company did many studies between 1975 and 2012 that showed it was safe for use. During those years, he noted that regulatory agencies around the globe, including the EPA and the WHO, concluded several times that glyphosate was safe to use and there was no need for warning labels. (Law.com)
Stekloff urged the six-member jury to ignore various ‘cherry picked’ statements from the plaintiff’s attorney that she read from several documents. He said the full context of the documents is vital.
Next, Stekloff informed the jury that the trial is not a type of popularity contest and it is not about whether they like Monsanto or not. He said the focus of the trial is about whether the company acted in a responsible manner in light of the known science around the world about Roundup, and he maintained the company did so.
After Opening Statements
After the opening arguments, Hardeman’s attorney played a video deposition from Monsanto’s ex-toxicologist Mark Martens. In that recording, Wagstaff asked Martens if he and other employees tried to convince Parry to alter his conclusion that glyphosate could be toxic to human genes in 1999. Martens said they gave Parry all the reports they had on glyphosate, so that he could put his findings in the proper context.