Plaintiffs’ attorney urges state jury to join ‘historic fight’ in new Monsanto case

OAKLAND -- An attorney representing a couple arguing Monsanto's massively popular weedkillers cause cancer urged a jury Thursday to join a "historic fight", this time in state court, against the Bayer-AG owned company.

A day after a San Francisco federal jury hit Monsanto for over $80 million for recklessly advertising and selling Roundup, R. Brent Wisner laid out what he said was a concerted effort by company executives to preserve its "blockbuster product" by manipulating public opinion.

"This is just the tip of a very large iceberg," the Baum, Hedlund, Aristei & Goldman PC attorney said toward the end of his two-and-a-half hour opening statement in a state-court trial.

Alameda County Superior Court Judge Winifred Y. Smith asked the jury before opening statements whether it heard of any Monsanto-related news over the last 24 hours. One juror raised his hand but no action was taken.

Wisner, who was also lead counsel in a San Francisco County Superior Court trial against Monsanto that wrapped up in August with a plaintiff's verdict, extensively previewed the "three pillars of science" indicating exposure to Roundup's active ingredient, glyphosate, was a substantial contributing factor to the couple's development of non-Hodgkin lymphoma.

He pressed what he said was the unlikelihood of both of them getting cancer after collectively spraying roughly 1,500 gallons over three decades of use, arguing their conditions were a result of "environmental exposure."

The Roundup label did not warn of cancer risk, and the couple did not wear any protective equipment when applying the weedkiller because commercials showed people spraying in shirts and shorts.

Wisner next accused Monsanto of trying to influence the state of the science. The Environmental Protection Agency intended to categorize glyphosate as a possible human carcinogen decades ago based off of a 1983 animal study, but the company redid the analysis to invalidate the previous finding.

"A theme in this case will be that Monsanto sat down with the EPA to see if they could fix things," Wisner said.

Referring to the incident as the "Parry affair," Wisner argued the company refused to conduct studies recommended by its own scientist.

Monsanto has to "develop someone comfortable" with Roundup's potential cancer risk who is "influential with regulators," wrote the company's chief of regulatory science in an email.

"We simply aren't going to do the studies [James] Parry suggests," the email continues.

Defense attorney Tarek Ismail objected just once during Wisner's lengthy opening remarks when the plaintiff's attorney said Monsanto is "bamboozling regulatory agencies."

The defense wanted to bifurcate the trial as happened in the federal Monsanto cases, but Smith denied the motion.

There are more than 250 cases in the consolidated litigation, of which Alva and Alberta Pilliod's allegations are supposed to serve as the first test case. Pilliod v. Monsanto, JCCP004953 (Alameda Super. Ct., filed Nov. 16, 2017).

Michael J. Miller of the The Miller Firm LLC is also a lead plaintiffs' attorney.

A federal jury found Monsanto liable for causing plaintiff Edwin Hardeman's cancer after a month-long, two-part trial in the first of the test cases before U.S. District Judge Vince Chhabria of San Francisco alleging Roundup causes non-Hodgkin lymphoma. In re: Roundup Liability Litigation, 16-MD02741 (N.D. Cal., filed Oct. 4, 2016).

The six-person jury hit Monsanto with over $75 million in punitive damages, along with just over $5 million in compensatory damages, for recklessly marketing and selling its glyphosate-based weedkillers.

Bayer denied the federal jury's verdict will have any impact on future litigation.

Wisner said he expects Monsanto attorneys to argue the couple had various medical conditions that most likely led to their illlnesses. Alva Pilliod contracted viral meningitis when he was young, which led to a compromised immune system and could have caused his non-Hodgkin lymphoma, which the plaintiff's attorney called a "pie-in-the-sky theory."

Monsanto attorneys gave their opening statement Thursday afternoon.

In a motion for summary judgment, defense attorney Kirby Griffis argued the EPA and international regulators agree glyphosate does not cause cancer and the company cannot be liable for failure to warn claims because the it cannot alter its warning label without EPA approval, which it would not have gotten.

"Many courts have held that claims are preempted when the evidence shows that the federal regulatory agency had considered the safety risk but nevertheless rejected concerns about that risk," Griffis wrote. "Here, there is clear evidence the EPA would reject any attempt to add a cancer warning to the applicable Roundup label or to change the formulation."

Juries in the San Francisco Superior Court and the San Francisco federal court trials have rejected that theory.

The trial will most likely last a month.