Plaintiff’s lawyer asks for $412M in Roundup closing arguments

SAN FRANCISCO -- Plaintiff's attorney Brent Wisner asked jurors in closing arguments Tuesday for more than $400 million in damages from Monsanto Co., which he said caused his client's cancer with its weedkillers.

"When you return a verdict, we're going to make it right," said Wisner of Baum, Hedlund, Aristei & Goldman. "The verdict will be heard around the world, and Monsanto will have to do something."

The defense, meanwhile, told the jury to focus on the facts instead of what it described as wild narratives by the plaintiff's attorneys.

"I ask you to really demand the facts," said defense attorney George Lombardi of Winston & Strawn LLP. "It's one thing to come in here and make high-flying arguments and it's another thing to prove it."

Plaintiff Dewayne Johnson alleges product liability and negligence, among other claims, and seeks over $400 million -- $40 million in compensatory damages and $372 million in punitive damages -- from the agrochemical company valued at over $6.6 billion.

This is the first of more than 4,000 cases nationally to take Monsanto to trial on allegations that its glyphosate-based weedkillers cause non-Hodgkin lymphoma. Johnson v. Monsanto et. al., CGC-16-550128 (S.F. Super. Ct., filed Jan. 28, 2016).

"That's a number that makes people change their ways," said Wisner, referring to the large damages award requested. "It signals to Monsanto that we will not tolerate this type of conduct. ... It's the type of number that makes them change the label tomorrow."

Wisner said the issue is not whether Johnson's use of Roundup caused his non-Hodgkin Lymphoma, but rather if Johnson spraying glyphosate-based herbicides played a substantial role in his developing cancer.

"This is not a criminal trial, even though it may feel like it at times," Wisner said.

Wisner started by parroting to the jury what he said in opening statements last month -- that the case is about choice and Monsanto depriving consumers of the right to make choices about potential risks to their health.

Monsanto made the choice to act in conscious disregard of consumers' health when it neglected to share key studies with regulatory agencies, conduct longterm carcinogenicity studies of the formulated product or "call Johnson back when he was desperate for answers about the stuff that he was spraying," Wisner told the San Francisco County Superior Court jury.

None of the epidemiological, animal or other studies prove glyphosate-based herbicides cause cancer, but the totality of the evidence does, he said.

Wisner said Monsanto addresses studies that don't support its conclusions by breaking apart the science and isolating it. The company presented four expert witnesses, all of whom refused to opine on studies outside their field of work.

Lombardi disputed this assertion in his closing argument by asking jurors what they would think of expert witnesses who offer their opinions on subjects outside their expertise.

"What does it mean when Dr. [Chris] Portier says he's an expert on everything," he asked.

Attempting to address prior criticisms by defense attorneys that bias and unknown variables muddied the studies presented by the plaintiff's attorneys, Wisner said that the argument is "straight out of the playbook of tobacco companies" and that it is a "classic way of hiding risk."

Lombardi's objection to the assertion was sustained, and he said prejudicial assertions of that type were prohibited in pretrial jury instructions.

Wisner next disputed key arguments made by defense attorneys through the course of the month-long trial.

Monsanto scientists inappropriately convinced the Environmental Protection Agency to dismiss a study which found an association between glyphosate and cancer by explaining that the tumors found in the mice were "within the range of historical controls" and, therefore, not statistically significant, according to the plaintiff's attorney.

"Dr. Portier clearly showed that the tumor popped up over and over again, and this case is about lymphoma," Wisner said. "You're seeing the very tumor in the mice that you're seeing in humans."

But Lombardi took aim at Portier in his closing argument. He said the biostatistician's opinion had been rejected by multiple regulatory agencies and that he is not objective.

Wisner closed by discussing the justification for punitive damages, his allegation that Monsanto neglected to respond to Johnson when he inquired with the company, twice over the course of a year, on whether his use of its products could be causing his rashes.

"They were more concerned about litigation than they were with calling Johnson back," Wisner said.

Lombardi said the Environmental Protection Agency, American Cancer Institute and various European regulatory agencies have been unable to conclude that glyphosate is a human carcinogen in any epidemiological or animal studies.

Wisner said independent agencies and organizations which "don't have a vested interest" in Monsanto and have all concluded the opposite.