Federal judge sanctions plaintiff’s lead lawyer, possibly others, in Monsanto trial

SAN FRANCISCO -- A federal judge overseeing a series of cases arguing Monsanto's weedkiller causes cancer sanctioned the plaintiff's lead attorney for intentionally violating court orders not to discuss prohibited evidence in the first phase of the trial.

Aimee H. Wagstaff, founding partner of Andrus Wagstaff PC, "committed several acts of misconduct" during her opening statement, according to U.S. District Judge Vince Chhabria of San Francisco.

"Taken together, the first five violations were intentional and committed in bad faith," Chhabria wrote in his order issued Tuesday.

In a contentious opening week in the first federal Roundup case to go to trial, Chhabria also ordered Wagstaff, who was sanctioned $500, to identify attorneys who helped prepare her opening statement because the "violations were premeditated." They will be required to show cause as to why they should not be sanctioned within 21 days of the end of the trial.

"These were not slips of the tongue -- they were included in the slides Wagstaff and her team prepared and used for her opening statement, and they were on issues that Wagstaff and her team have made clear throughout the pretrial proceedings they believe are important for the jury to hear at the same time it hears the evidence on causation," he wrote.

Biostatistician Chris Portier testified Wednesday on the mechanism through which he said exposure to Roundup's active ingredient, glyphosate, causes cancer.

The former director of the National Center for Environmental Health was a plaintiff's expert witness last summer in the San Francisco County Superior Court trial, which ended with the jury awarding $289 million to the plaintiff. A judge subsequently reduced the award to $78 million. Johnson v. Monsanto Co. et al., CGC-16-550128 (San Francisco County Sup. Ct., filed Jan. 28, 2016).

Roundup causes tumors in mammals, genetic damage and Non-Hodgkin lymphoma in humans at real world exposure levels, according to Portier.

Plaintiff Edwin Hardeman alleges exposure to Roundup was a substantial contributing factor to his development of the disease. In re: Roundup Products Liability Litigation, 16-MD02741 (N.D. Cal., filed Oct. 4, 2016).

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

After discussing three studies that found increased genetic damage in people exposed to glyphosate compared to those who were not, the special adviser to the International Agency for Research on Cancer's glyphosate working group also criticized how the Environmental Protection Agency conducted its studies..

On Tuesday, Chhabria ordered Hardeman to attend the sanctions hearing.

"We were trying to find the best way under these unusual circumstances where we can only talk about the science in Phase 1 and still try to represent Mr. Hardeman to the best of our abilities," plaintiff's attorney Jennifer Moore of the Moore Law Group said.

"Your job is to represent Mr. Hardeman consistent with the court's rulings," Chhabria responded. "Your job is not to violate the court's rulings because you think it's more important for Mr. Hardeman to win." Moore said, "To start the trial off and award sanctions," but did not finish her response.

"I have no reason to believe you are approaching this case in bad faith in any way, but you are in charge of this case," Chhabria said to Hardeman, adding his lawsuit could be dismissed if there is more similar misconduct.

A juror was also dismissed Wednesday for undisclosed reasons after Chhabria excused an alternate on Monday for financial hardship. winston_cho@dailyjournal.com