Federal judge threatens to dismiss lawsuit against Monsanto

SAN FRANCISCO -- A federal judge on Tuesday told a cancer-stricken man arguing that exposure to Monsanto's weedkiller caused his cancer to get control of his attorneys and tell them to "play it straight" or risk having his case dismissed.

"Ultimately, you are responsible for what these lawyers do in this courtroom," U.S. District Judge Vince Chhabria of San Francisco said to lead plaintiff Edwin Hardeman after the jury was excused for the day.

In a motion to show cause as to why plaintiff's attorney Aimee H. Wagstaff of Andrus Wagstaff PC should not be sanctioned, Chhabria accused her, and the others lawyers representing Hardeman, of acting in "bad faith" and "premeditating" a plan to sneak inadmissible evidence into her opening remarks.

The improper remarks, according to the judge, primarily concerned alleged misconduct by Monsanto to influence findings by the U.S. Environmental Protection Agency.

"There are areas where it's difficult to draw a line, but this doesn't even come close to it," Chhabria said. "This was intentional. It was premeditated."

"That's making it sound criminal and it's not," said plaintiff's attorney Jennifer Moore of the Moore Law Group. "Recklessness is not bad faith. You may disagree with style and how she presented her opening statement, but recklessness does not equate to bad faith under the 9th Circuit."

Monsanto's attorneys, with Wilkinson, Walsh & Eskovitz, sat quietly during the sharp exchange between the plaintiff's lawyers and the judge.

Hardeman's allegations are first of three test cases in the consolidated litigation. In re Roundup Products Liability Litigation, 16-MD02741 (N.D. Cal., filed Oct. 4, 2016).

Since the trial is split up into two phases, the jury will only hear accusations of misconduct and whether additional damages are warranted if it finds the agrochemical company, which is now owned by Bayer AG, liable for causing Hardeman's cancer.

UCLA professor of epidemiology Beate Ritz also took aim at Monsanto's key study backing its claim there is no association between the weedkiller and Non-Hodgkin lymphoma.

Despite the defense's assertions the National Cancer Institute's Agricultural Health Study is the most comprehensive analysis of the issue, its authors made a critical oversight when they failed to obtain follow-up information on the participants' exposure, which may have obscured its findings, Ritz testified.

"You don't really know whether they used what they said they used," she told the jury.

The study followed nearly 45,000 farmers who used glyphosate-based products for decades and found no link between exposure and cancer.

Monsanto lead medical sciences and outreach officer Daniel Goldstein, whose deposition was also played Tuesday, previously called it the "gold standard" because it tracked the largest number of participants over the longest period of time.

But Ritz said the study's authors may have misclassified a large portion of its participants regarding glyphosate exposure.

Researchers gave the farmers a questionnaire during initial enrollment of the study, which inquired about pesticide use and practices. But after the study participants submitted their answers, there was a "radical change in farming practices," which led to a massive spike in the use of glyphosate-based weedkillers.

"You have no idea what happens after the baseline as to what their practices are, what pesticides they are using and how they have changed," she said.

To account for nonresponsive participants in the followup effort, the study's authors then made an "informed guess" as to what their likely exposure would be using statistical modeling, Ritz continued. Roughly 38 percent of the farmers' exposure was classified using this method.

Wagstaff also asked Ritz about criticisms from Monsanto epidemiologist John Acquavella of the study in 2006.

He said "there was a problem with the baseline questionnaire" and that the study suffered from "substantial exposure misclassification."

The trial continues Wednesday with the video deposition of Goldstein.