Judge rejects bid to block Monsanto mobile phone ads during trial

The judge overseeing the latest trial arguing Monsanto's massively popular weedkillers cause cancer has ruled against a bid to bar the company from sending targeted mobile phone advertisements to jurors and other Bay Area residents over the alleged safety of Roundup.

Alameda County Superior Court Judge Winifred Smith made her decision Thursday following claims by plaintiffs' attorneys who said the Bayer AG-owned company was improperly trying to influence the jury.

Plaintiffs' attorneys argued the advertisements serve to "precondition" jurors by elevating the safety of the weedkiller through references to it being approved by regulators when the jury has not yet been instructed that "mere compliance" with government regulations protects Monsanto from liability.

James S. Azadian of Dykema Gossett PLLC called the plaintiffs' motion a "longshot."

The advertisement in question refers to Roundup being "the most rigorously studied product," with "hundreds of studies submitted to regulators."

Attorneys for Alva and Alberta Pilliod accused Monsanto of geofencing, a process in which GPS, Wi-Fi or cellular data is used to send targeted messages that trigger text messages, alerts and notifications.

"Bayer is pleased that that Court has tentatively denied plaintiffs' request for a temporary restraining order on company advertising which has no basis in law, while plaintiffs and their surrogates continue to saturate the San Francisco market with advertisements that disparage our products and further their litigation interests," company spokeswoman Charla Lord said in an email.

R. Brent Wisner of Baum, Hedlund, Aristei & Goldman PC said he noticed Monsanto increasingly engage in the tactic over the course of the state court case brought by Dewayne Johnson, which resulted in a $78 million award against Monsanto.

"This jury must consider only the evidence; it should not be influenced by such outside proclamations," wrote plaintiffs' attorney Steven J. Brady of the Brady Law Group. "Such advertisements serve to indoctrinate the jury before it has heard the evidence, jeopardizing plaintiff's right to a fair trial."

Plaintiffs argued 35 years of exposure to Roundup's active ingredient, glyphosate, caused their non-Hodgkin lymphoma.

There are more than 250 cases in the consolidated litigation, of which the Pilliod's claims are the first test case. Pilliod v. Monsanto, JCCP004953 (Alameda Super. Ct., filed Nov. 16, 2017).

Monsanto attorneys, in their response, said the other side is seeking a "unilateral gag order" that is "unconstitutional, unnecessary and dripping with hypocrisy."

Plaintiffs' attorneys have strategized to run an "onslaught of disparaging Roundup(r) advertisements across multiple media platforms in the San Francisco Bay Area," wrote defense attorney Kirby Griffis of Hollingsworth LLP.

Monsanto argued a mistrial should be called before opening statements started because the jury pool was exposed to 2,187 anti-Roundup television and radio advertisements leading up to the trial.

Azadian said he was not surprised by Smith's ruling because the Supreme Court has been broadening First Amendment protections, particularly concerning commercial speech.

"We're talking about a state court judge issuing a nationwide order," he said.