Bayer Urges Court to Reverse Verdict in Pilliod Glyphosate Case
Whippany, N.J., June 18, 2019 – In post-trial motions filed in Pilliod v. Monsanto, Monsanto urged California Superior Court Judge Winifred Smith to reverse the jury verdict and enter judgment for Monsanto or order a new trial. The company argues in its briefs that the “verdicts do not reflect the evidence presented in the case; 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… The resulting trial focused not on ascertaining the truth regarding the state of the science, causation, and compliance with legal duties, but instead on vilifying Monsanto in the abstract.”
The motions highlight several issues that warrant judgment in favor of Monsanto or a new trial:
Evidence Did Not Support Causation
- Plaintiffs Sought To Bury Genetic Link Between Mrs. Pilliod’s NHL and Her History of Smoking: After presenting the jury with a differential etiology concluding that Roundup was the cause of Mrs. Pilliod’s NHL, and dismissing every other risk factor, plaintiffs’ expert Dr. Dennis Weisenburger was forced to admit on cross examination that Mrs. Pilliod’s genetic testing revealed, based on his own research, that her NHL was likely associated with her smoking rather than the use of herbicides. This one admission, which he tried to bury, substantially undermines the case that Roundup caused Mrs. Pilliod’s NHL.
- NHL Risk Factors Were Arbitrarily Ruled Out: Plaintiffs’ experts arbitrarily ruled out plaintiffs’ other substantial risk factors for NHL in their differential etiologies, and the fact that 80% of NHL has no known cause. Mrs. Pilliod’s substantial risk factors include Hashimoto’s disease (3X risk), bladder cancer, family history of cancer, age and elevated body weight. Mr. Pilliod had 22 skin cancers (2-3X risk), ulcerative colitis, and HPV along with genital warts (3X risk). Under this made-for-court testimony, differential etiology would always find Roundup the cause of NHL for anyone who ever sprayed it. This explains why the Federal Judicial Center Reference Manual on Scientific Evidence warns that “differential etiologies are…only valid if…a substantial proportion of competing causes are known.”
- Plaintiffs’ Experts Admitted That Roundup Was Not the ‘But-For’ Cause: Plaintiffs’ experts Drs. Weisenburger and Nabhan admitted that both Mr. and Mrs. Pilliod could have had NHL without their exposures to Roundup. These admissions are contrary to the requirements of the jury instructions that plaintiffs’ must prove that Monsanto’s herbicide was the ‘but-for’ cause of their disease, meaning that the plaintiffs would not have had their diseases if they were not exposed to the herbicide. These admissions alone warrant judgment in favor of Monsanto or a new trial.
Plaintiffs’ Counsel Improper Argument
- Counsel repeatedly sought to inflame the jury: Plaintiffs’ counsel was admonished during jury selection by the court for asking prejudicial questions. During trial, he twice wore protective gloves to spray water out of an herbicide sprayer, clearly intending to frighten the jury. Counsel’s inflammatory language included claims that “EPA has a bad track record,” and that EPA and the European Food Safety Authority (EFSA) would have “blood on their hands,” implying that the jury would put itself in the same position if it reached the same conclusion as these regulators. During closing arguments, the court admonished counsel on its own initiative but counsel continued to falsely claim that the content of the Roundup label is Monsanto’s choice alone and argue details about the Pilliods’ exposure and medical costs that were not in evidence at trial.
- Violated Pre-Trial Orders: Plaintiffs’ counsel also plainly violated several orders of the court when he argued “glyphosate is in the food; it is all over the place,” referred to a “magic” tumor during rebuttal and claimed Roundup may have compromised Mr. Pilliod’s immune system – an action that violated Plaintiffs’ very own stipulation.
Evidence Erroneously Admitted or Excluded
- Prejudicial expert testimony: The court excluded the majority of economist Charles Benbrook’s testimony, yet at trial he improperly became the plaintiffs’ narrator for Monsanto company documents for which he had no personal knowledge or relevant expertise. Dr. William Sawyer, who is neither a medical doctor nor an epidemiologist, should not have been permitted to offer testimony on causation, yet did so while admitting that he had not considered the medical histories of either plaintiff nor any other possible causes of their NHL.
- IBT and Proposition 65: The court initially granted Monsanto’s motion to exclude Prop 65, recognizing its potential to mislead the jury, but then reversed course after repeated argument by plaintiffs. Plaintiffs then made Prop 65’s glyphosate listing a centerpiece of their case. Similarly, evidence regarding IBT Labs’ fraud – which Monsanto and other companies were victims of – was partially excluded by the court, but plaintiffs still insinuated Monsanto had defrauded EPA, and in closing argument, claimed Roundup was “literally born in fraud” – contrary to prior rulings that such a “fraud on the EPA” claim is preempted.
- Exclusion of EPA’s April 30, 2019 Interim Registration Decision: The court declined to take judicial notice of this decision which was probative of glyphosate’s safety – the central issue in this case. Moreover, admission of this evidence was directly relevant to rebut plaintiffs’ repeated claims at trial that EPA might change its mind on the safety of this herbicide.
Failure to Sever Plaintiffs for Separate Trials
- Two Plaintiff Trial Was Prejudicial: Plaintiffs took every opportunity to use the trial structure to prejudice Monsanto. Throughout trial they repeatedly spoke about the odds of a husband and wife both having the same disease notwithstanding the undisputed facts that Mr. and Mrs. Pilliod had two different types of NHL, different risk factors, different exposures, and were diagnosed years apart. Additionally, they employed two specific causation experts at trial and had both testify cumulatively and repetitively about both plaintiffs’ specific causation evidence.
- Excessive and Unconstitutional Punitive Damages: The evidence demonstrated that Monsanto’s actions were aligned with regulatory approvals worldwide and failed to prove it acted with “malice, oppression or fraud” as required for a punitive award. The awards also violate due process because they must be tied to plaintiffs’ harm and their counsel instead urged the jury to punish Monsanto for its conduct over 40 plus years, covering a time period and conduct that are not relevant to the claims in this case. The amounts also exceeded any reasonable multiple of the compensatory damages. For instance, Judge Bolanos in the Johnson case reduced the punitive damages to a 1:1 ratio. Finally, joining two plaintiffs allowed the jury erroneously to award punitive damages twice in one trial based on the same conduct and evidence.
Read Monsanto’s Memo of Points and Authorities In Support of Monsanto’s Motion for Judgment Notwithstanding the Verdict here.
Read Monsanto’s Memo of Points and Authorities In Support of Monsanto’s Motion for New Trial here.