Monsanto Urges California Appeals Court to Reverse Verdict in Pilliod Glyphosate Case
Opening Brief Argues Preemption, Lack of Evidence to Support Liability, Causation and Punitive Damages, Failure to Sever Cases, Admission of Irrelevant and Prejudicial Evidence, and Pervasive Misconduct by Plaintiffs’ Counsel
Whippany, N.J., February 10, 2020 – In its opening appeal brief, Monsanto urged the California Court of Appeal to reverse the verdict in Pilliod v. Monsanto because plaintiffs’ product liability claims are preempted by federal law, and the plaintiffs did not present sufficient evidence to prove that Roundup was the cause of each of the Pilliod’s different subtypes of non-Hodgkin’s lymphoma (NHL), among a number of arguments the Company made. The brief also argues that there was not a valid basis to support any award of punitive damages.
“The jury’s verdicts and the damages awarded cannot be reconciled with either the law or sound science, and the court should reverse and enter judgment in favor of Monsanto, or in the alternative, order a new trial on all claims,” Monsanto said.
The Company’s express and implied preemption arguments are similar to those advanced in the Hardemanappeal and rely heavily on the consistent findings by the Environmental Protection Agency (EPA), which must approve Roundup’s label, that glyphosate-based herbicides can be used safely and that glyphosate is not carcinogenic. EPA reaffirmed this conclusion as recently as January 30 of this year in its Interim Registration Review Decision. Significantly, last August EPA notified all glyphosate registrants that it would consider a cancer warning on these products to be false and misleading and would not approve any such warning.
The failure to warn arguments in the Pilliod brief are similar to those in Johnson. These arguments rest on the fact that the law requires plaintiffs to prove that the risks “were known or knowable in light of the scientiﬁc and medical knowledge that was generally accepted in the scientiﬁc community at the time of manufacture, distribution, and sale.” The evidence at trial demonstrated that both Mr. and Mrs. Pilliod were diagnosed with NHL prior to or coincident with the publication of the IARC monograph in March 2015. Thus, any warnings following the IARC monograph could not have affected their spraying. But for many decades and through the present time, regulators in the U.S. and across the globe continue to conclude that glyphosate is not carcinogenic. As a result, there is no basis for the Pilliods to argue that the generally accepted science required or requires the warning they seek.
Monsanto’s brief also raises a number of significant issues arising from the evidence admitted and the conduct at the trial. These include:
- Specific Causation Testimony Was Flawed and Should Be Given No Evidentiary Weight: Because at least 70 percent of NHL cases are of unknown cause (i.e., idiopathic), an expert testifying on specific causation has to account for these unknown causes. Plaintiffs’ experts failed to do this and to provide a scientific basis for ruling out a number of known alternative causes that were likely to have been the cause of the plaintiffs’ NHL. Mr. Pilliod’s medical history included skin cancer, genital warts, ulcerative colitis, stroke, high blood pressure, and smoking; Mrs. Pilliod’s history included obesity, diabetes, Hashimoto’s disease, bladder cancer, and smoking. Many of these conditions are associated with a two- or three-fold risk of developing NHL. As just one example of the plaintiffs’ made-for-court specific causation evidence: plaintiffs’ expert Dr. Weisenburger’s own academic research showed that smoking, and not herbicides, was associated with Mrs. Pilliod’s specific type of NHL tumor, yet he opined, without explanation, that her Roundup use, not smoking, was the specific cause of her NHL.
- Failure to Sever Cases Lowered the Burden to Prove Causation. The trial court’s decision to allow both plaintiffs’ claims together in a single trial, over Monsanto’s objection, also fatally infected – and lowered the burden for – the jury’s consideration of the causation issue. Mr. and Mrs. Pilliod had very different exposure histories, very different and complicated medical histories and risk factors, and even had different types of non-Hodgkin’s Lymphoma. Yet, through joinder of their claims, plaintiffs were able to claim repeatedly and misleadingly over the course of the trial that the mere fact they were married and developed NHL must mean their Roundup exposure was the cause of their illnesses. The jury was led by plaintiffs’ counsel to believe that if it determined that Roundup could cause cancer generally – only half of its task in a trial of this type – it must be the case that Roundup actually caused each plaintiff’s individual cancer because no other factor would explain such a coincidence.
- Admission of IBT Controversy Unfairly Prejudiced the Trial. The court’s decision to permit evidence of fraud at the IBT laboratory, over Monsanto’s objection, tainted the trial with irrelevant testimony. Plaintiffs exploited this evidence to improperly suggest that Monsanto itself had engaged in fraud, even though Monsanto along with dozens of companies were victims of this fraud, and the court’s pre-trial ruling made clear “plaintiffs may not argue or imply that Monsanto was in any way involved.” Monsanto ultimately repeated these studies and the current registration of glyphosate does not depend on any of this IBT work. Still, plaintiffs’ counsel improperly argued in closings that Roundup “literally was born in fraud.”
- Repeated Misconduct by Plaintiffs’ Counsel Tainted the Trial. Plaintiffs’ counsel engaged in repeated misconduct including violating pre-trial orders in an effort to prejudice the jury, stoke fear and produce a liability verdict and an enormous damage award. For instance, counsel referred to the case being “historic” in opening arguments, despite being admonished by the Johnson court for making the same argument. Counsel also violated a court ruling about limiting testimony to the dermal exposure at issue in the case by saying that glyphosate is “ubiquitous,” “pervasive” and “in the food.” During closings, counsel made inflammatory and disparaging comments, stating that EPA and EFSA would have “blood on their hands” if they are wrong about glyphosate, and suggesting without evidence that EPA has a “bad track record.” Counsel also misstated the law in closings, claiming what the label says is “their [Monsanto’s] choice alone.” The court erroneously overruled Monsanto’s objection. Finally, counsel sought to stoke the jury’s fears by putting on gloves and spraying water out of a Roundup bottle during his questioning of Mr. Pilliod, a charade designed to frighten the jury.
For more information on Roundup, visit https://www.bayer.com/en/glyphosate-roundup.aspx.
For more information on the Roundup litigation, visit https://www.glyphosatelitigationfacts.com/main.