Bayer Urges Court to Reverse Verdict in Hardeman Glyphosate Case
Whippany, N.J., June 3, 2019 – In post-trial motions recently filed in Hardeman v. Monsanto, Monsanto urged federal district court Judge Vince Chhabria who is presiding over the MDL in the Northern District of California to reverse the jury verdict and enter judgment for Monsanto, or in the alternative, order a new trial. The company makes a series of arguments in its brief including that plaintiff’s expert evidence was unreliable and should not have been admitted under the Daubert standard; that the evidence fell far short of proving that Monsanto’s glyphosate-based herbicides caused Mr. Hardeman’s NHL; that the verdict cannot stand in light of the favorable international consensus among health regulators, based on the prevailing science, that glyphosate is not carcinogenic; that the claims in the case are preempted by federal law; and that the damage awards were excessive and should be reduced or eliminated.
Bayer, which now owns Monsanto, said, “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. Important decisions about the safety and efficacy of these products – whether in courts of law or elsewhere — should be made based on science that is reliable and not ‘shaky,’ and is generally accepted in the scientific community versus work that ‘barely inched over the line.’ Our customers have relied on these products and placed their trust in this science for more than 40 years, and we remain confident that the science will ultimately be determinative in this litigation.”
The brief also describes a number of case-specific errors that warrant a new trial. These include:
• Improperly Dismissing Juror No. 4: The court improperly dismissed Juror No. 4 absent any inquiry into her ability to be impartial or follow the Court’s instructions, which improperly eased plaintiffs’ evidentiary burden at trial. The court based its decision to dismiss the juror on the hearsay of three jurors who reported their concerns to the courtroom deputy, despite Monsanto’s request for the court to engage in a direct discussion with Juror No. 4 to determine whether she could continue to serve pursuant to her oath.
• Faulty Jury Instructions: Monsanto contends that the trial court erred in its causation jury instruction, and as a result, improperly lowered Mr. Hardeman’s burden of proof in this case. In particular, the court declined to instruct the jury that they could only find for Mr. Hardeman if they concluded his use of Roundup was the “but for” cause of his illness. The court’s instruction instead invited the jury to make a false choice between whether Mr. Hardeman’s Hepatitis C or Roundup use caused his illness, without considering other causes or the possibility of an unknown cause.
• Improper Evidentiary Rulings: The trial court issued several erroneous evidentiary rulings that taken in isolation or together prejudiced Monsanto.
o Pathology Testimony of Dr. Weisenburger: The court permitted Dr. Weisenburger to testify as to his previously undisclosed review of Mr. Hardeman’s pathology, even though Dr. Weisenburger had failed to even review the relevant pathology slides until just before he testified at trial. The court also allowed Dr. Weisenburger to offer previously undisclosed opinions about genetic mutations caused by Mr. Hardeman’s Hepatitis C, among other things. The prejudice caused by this error was compounded by the court’s denial of Monsanto’s request to rebut Dr. Weisenburger’s testimony through questioning of its own experts about their timely review of the pathology.
o Uneven Treatment of EPA Exhibits: Though the court, at the request of the plaintiff, strictly limited Monsanto from admitting EPA reports in Phase 1 of the trial, the plaintiff was nonetheless permitted to admit EPA documents through the video testimony of Dr. Bill Reeves during Phase 1. And when Monsanto sought to admit favorable EPA documents in Phase 2, the court precluded their admission.
o Exclusion of Evidence from Worldwide Regulatory Approvals: The court permitted evidence of IARC’s classification of glyphosate, even though IARC’s classification occurred after Mr. Hardeman had stopped using Roundup. Once the court permitted that evidence, fairness and completeness required that Monsanto be allowed to introduce the overwhelming evidence of regulators around the world who have reaffirmed glyphosate is safe to use as directed, following IARC’s classification, and often in response to IARC. But the court precluded Monsanto throughout the trial from offering such evidence, and the jury did not see the full picture of the worldwide consensus that glyphosate does not cause NHL.
• Plaintiff’s Attorneys Violations of Court Orders: In pretrial rulings, the court clearly limited the way the plaintiff could portray two studies, saying that experts “may not testify that the McDuffie and Eriksson studies stand for the proposition that if someone uses Roundup more than two days per year or more than ten days in their lifetime, their risk of developing NHL doubles.” In fact, the court noted that doing so would be “inaccurate, misleading and untethered to any sound scientific method.” The plaintiff’s lawyers repeatedly violated that order throughout the trial, including in their opening and closing statements and by soliciting similar testimony from their experts. In several instances, plaintiff’s expert Dr. Beate Ritz repeatedly stated that the McDuffie and Eriksson studies showed the risk of developing NHL was more than “twofold,” and Dr. Weisenburger similarly asserted that there was “at least twofold” increased risk of developing NHL for people with high exposures to Roundup.
Read Monsanto’s post-trial brief here.