Bayer attorneys want appellate rulings as they challenge weedkiller verdicts

Attorneys on both sides of the landmark Monsanto weedkiller litigation indicated they are not willing to settle after three multimillion-dollar verdicts against the Bayer-AG owned company.

Bayer's attorneys said in a media briefing Wednesday they will wait before seriously engaging in settlement discussions because they are optimistic they will prevail on key appellate issues such as allowing state claims that should have been prohibited and what they described as "shaky" expert testimony.

"It's important in litigation like this to assess cases over the long term and go through some of those key steps -- get some appellate guidance on some issues," said Bayer national strategy lead William Hoffman of Arnold & Porter Kaye Scholer LLP. "Those are critical factors for any kind of assessment."

The attorneys who have prevailed in the three jury trials against Monsanto and continue to represent thousands of plaintiffs responded that they want to try their cases.

"They've never been willing or interested in settling," said R. Brent Wisner, who was lead attorney in two state court trials against Monsanto on accusations that its weedkiller causes cancer. "Frankly, at this point, I don't know if we would settle."

Aimee H. Wagstaff, who was the lead attorney in the first federal Monsanto trial that concluded in March, said, "There's no signal to suggest that we won't continue to have great success at the trial courts."

Both sides said they will approach settlement discussions in good faith and ultimately do what is best for their clients.

Bayer attorneys emphasized that various trial judges should not have allowed claims arguing that Monsanto should have included a warning label on weedkillers containing glyphosate, Roundup's active ingredient.

The Environmental Protection Agency does not require a warning and would have rejected a request to add one if Monsanto had asked, according to defense attorney Eric G. Lasker.

"Before a warning is required, that risk has to be generally accepted in the scientific community," the Hollingsworth LLP partner said. "The regulatory evidence that has come in thus far directly undercuts any argument in that regard." U.S. District Judge Vince Chhabria, who oversees the consolidated federal litigation, agreed with the plaintiffs' attorneys in March, ruling, "Monsanto's argument reflects a misreading of the statute" in an order rejecting the company's motion to dismiss the case.

Monsanto's position is "difficult -- if not impossible -- to square with" Supreme Court precedent that state claims for defective designs are not barred by federal statutes, Chhabria wrote. Bates v. Dow Agrosciences LLC (2005).

Wisner called Bayer's interpretation of federal pre-emption on the failure to warn claims a "Hail Mary" that has been "systematically rejected" by various courts.

Loyola School of Law Professor Adam Zimmerman agreed with Chhabria's interpretation of the issue. He added that Bayer's best chance on appeal is challenging judges' decisions to allow some of the plaintiffs' expert testimony.

Bayer attorney Lee Marshall called the testimony by pathologist Dennis Weisenburger, who opined on issues of specific causation, a "significant issue on appeal."

"In essence, these experts are concluding that no matter the medical history or risk factors, that somehow Roundup is always the cause of the disease, even when the majority of the causes are unknown," said the Bryan Cave Leighton Paisner LLP partner.

Plaintiffs in each of the three trials had medical conditions associated with an increased risk of non-Hodgkin lymphoma, which the defense argued were the most likely causes of their cancers.

Other issues Hoffman highlighted included Alameda County Superior Court Judge Winifred Y. Smith denying Bayer's request to split the trial into two phases on causation and then misconduct, the prohibition of evidence that the EPA reaffirmed its position that glyphosate does not cause cancer and whether punitive damages should even be allowed given the "scientific and regulatory record that existed at the time."

Wagstaff shot back that plaintiffs' attorneys were barred from presenting the majority of evidence they wanted to introduce.

"We probably got in 30 percent of the evidence," she said. "There are some story lines that have never made it into any trial yet. There's a lot more to come."

An Alameda County jury most recently hit Bayer with a $2.055 billion verdict on Monday after a Northern District federal jury awarded more than $80 million to a 70-year-old man who also argued exposure to Monsanto's weedkillers caused his non-Hodgkin lymphoma. Pilliod v. Monsanto Co., RG17862702 (Alameda Super. Ct., filed Nov. 16, 2017).

Both trials were the first in a series of test cases in consolidated state and federal court litigation. In re Roundup Products Liability Litigation, 16-MD02741 (N.D. Cal., filed Oct. 4, 2016).

A San Francisco County jury, in the first trial against Bayer last August, also awarded a dying groundskeeper $289 million, which was later reduced to $78 million by the trial judge. Johnson v. Monsanto Co., CGC-16-550128 (San Francisco Sup. Ct., filed Jan. 28, 2016).