Plaintiff’s lawyer pushes the envelope in Monsanto closing argument

SAN FRANCISCO -- The initial stage in the first of three test cases arguing Monsanto's signature weedkiller causes cancer wrapped up Tuesday with an attorney for the plaintiff again pushing up against the limits of the judge's orders, this time by telling the jury to consider whether multiple factors contributed to her client's illness.

Aimee H. Wagstaff said the jury must find the company liable for plaintiff Edwin Hardeman's cancer "even if you believe that other factors were sufficient on their own to cause his Non-Hodgkin lymphoma."

Monsanto attorney Brian Stekloff, who drew praise from U.S. District Judge Vince Chhabria when he did not raise credible objections during Wagstaff's opening statement, immediately objected and requested a sidebar.

The judge told the jury to disregard the Andrus Anderson attorney's "last two sentences" but stopped short of issuing curative instructions.

Stekloff urged Chhabria to issue such instructions so the jury knows it "cannot consider the possibility Roundup and any other factor worked together to cause" Hardeman's cancer.

Chhabria said further instructions are not necessary "in light of that statement alone" and questioned whether Stekloff's remedy is accurate.

Despite the judge's order denying plaintiff's attorneys' motion for the jury to be able to consider multiple theories of causation, Wagstaff's argument "may be possible the way evidence came in," Chhabria continued.

"The point you really want to make is that the jury is not permitted to do what Wagstaff suggested they do during that moment in her closing: Conclude that hepatitis and Roundup combined to cause his Non-Hodgkin lymhpoma," Chhabria said to Stekloff. He added that he will issue a curative instruction if it happens again.

"There's multiple interpretations of what was said," Wagstaff said. "It's been more than cured."

Stekloff dedicated the majority of his closing statement to building up the credibility of the analysis offered by Harvard epidemiologist Lorelei Mucci. Chhabria has repeatedly said the his focus is on getting the jury to properly weigh testimony by both sides' experts.

While plaintiff's attorneys presented their studies "without a single criticism," Mucci was forthcoming about potential flaws in the Agricultural Health Study, including potential exposure misclassification which she said was properly addressed, and still found it to be the best analysis of the allegations, according to Stekloff.

"When they try to cherry-pick data and not tell you the whole story, and then we bring out the full story and data, what does that tell you about the opinion they're offering to you?" Stekloff said.

The plaintiff's attorneys have argued the "entirety of the scientific literature" -- the epidemiological, animal and mechanistic studies -- says Roundup and the weedkiller's active ingredient, glyphosate, cause Non-Hodgkin lymphoma and that Monsanto is ignoring inconvenient evidence.

The defense, in turn, has argued the National Cancer Institute's Agricultural Health Study, which followed the health outcomes of nearly 45,000 farmers who sprayed glyphosate-based weedkillers, is the "highest level of evidence" on the matter and that the other side is presenting significantly flawed studies by experts with questionable credentials and interests. In re Roundup Products Liability Litigation, 16-MD02741 (N.D. Cal., filed Oct. 4, 2016).

Bayer AG-owned Monsanto has maintained Hardeman's Non-Hodgkin lymphoma was most likely caused by the 70-year-old man's other medical conditions, including Hepatitis B and C.

Since the trial is split into two phases, the six-person jury, the minimum for federal court, will only hear accusations of misconduct and whether additional damages are warranted if it finds the agrochemical company liable for causing Hardeman's cancer.

Both sides submitted their presentations in advance after the judge sanctioned Wagstaff $500 for discussing inadmissible evidence during her opening remarks.

Stekloff and Tammara M. Johnson are both with Wilkinson, Walsh & Eskovitz.

Jennifer Moore of the Moore Law Firm was also a lead attorney representing Hardeman along with Wagstaff.

In her closing statement, Wagstaff discussed a critical 1983 mouse study which she alleged proves Monsanto was successful in influencing the science over Roundup and glyphosate. She argued the Environmental Protection Agency was going to categorize the chemical as a "possible human carcinogen" when Monsanto hired a scientist to review the study in its favor.

"The EPA asked Monsanto to redo the study, and it hasn't been redone," she said. "Since then, every mouse study has found the tumor that Hardeman has."

The jury will deliberate until 4 p.m. each weekday, with the exception of Thursday.