Bayer to pick 1st non-California Roundup case

SAN FRANCISCO -- Monsanto scored a critical victory Wednesday as the federal judge overseeing the consolidated Roundup litigation allowed the Bayer-AG owned company to choose the first non-California case to go to trial.

After a state court jury hit Monsanto for more than $2 billion in May, U.S. District Judge Vince Chhabria said he wants to "set an aggressive schedule" by prioritizing the preparation of a case outside of the state for trial and addressing which of the California cases should be dismissed.

"I think we're going to let Monsanto choose a state," he said. "Things have been going well for [plaintiffs]. Let's give Monsanto a chance."

While the defense will choose the first case outside California in the next wave of litigation to go to trial, it will still have to deal with the remaining two test cases before Chhabria in the federal litigation.

The judge set a trial date for Feb. 10 in the lawsuit brought by Elaine Stevick, which will serve as the second test case of three. Chhabria said he wants to focus on getting the remainder of the 16 California cases eligible to be tried and a case from another state "out and trial ready."

In his pursuit of a speedy resolution of all claims, Chhabria also appointed Kenneth Feinberg to mediate settlement discussions. Plaintiffs' attorney Aimee Wagstaff and Bayer national strategy lead William Hoffman will serve as the primary contact for each side.

Chhabria almost sided with plaintiffs' attorneys on the matter of which state will get the next trial.

Defense attorney Brian Stekloff first argued the defense's plan sought to "get data points outside" of the state, because there are thousands of plaintiffs across the country, an argument Chhabria said he did not find persuasive. He said the standards of causation, among other differences in state law, would vary as well.

"What would be your favorite state to go to?" the judge asked.

Stekloff said Monsanto would most likely choose a "rural state given the benefits [Roundup] provides and that people aren't developing non-Hodgkin lymphoma."

Chhabria shot back that Stekloff's favored venue sounds like Missouri, in which a federal trial is already scheduled to start in the fall.

Stekloff eventually convinced the judge of his position when he suggested the court prepare two cases -- one in the state and one outside -- for trial, considering there are only 16 remaining California lawsuits in the next wave of litigation. It would make sense to try a case outside of the state because there are thousands of plaintiffs across the country, the Monsanto attorney continued.

"Let's decide it's workable to do California and one other state," Chhabria ruled.

More than 13,400 plaintiffs across the country have alleged exposure to Roundup caused their non-Hodgkin lymphoma. In re: Roundup Liability Litigation, 16-MD02741 (N.D. Cal., filed Oct. 4, 2016).

In a decision the judge said would have "implications for many other cases," Chhabria sided with plaintiffs' attorneys on a ruling considering whether Monsanto has a year or 30 days to argue that a state court case actually belongs in federal court and whether it is appropriate to proceed with multi-plaintiff lawsuits.

Chhabria appeared to agree with Monsanto that it should have a year to argue to remand the cases before plaintiffs' attorney Brent Wisner, who was a lead attorney in two state court Roundup cases, stepped in.

Monsanto could hypothetically argue a state case actually belongs in federal court before Chhabria on the eve of trial, Wisner argued.

Following a lunch break to further consider the issue, Chhabria ruled in the plaintiffs' favor, explaining to the defense, "If you really wanted to remove the cases, you should have filed a motion in superior court earlier. And if the state court says no, then again, you're out of luck."

Defense attorney Rakesh Kilaru, also with Wilkinson, Walsh & Eskovitz, shot back with a hypothetical of his own. The state court judge in future cases may defer on ruling on the issue until the defense can no longer argue to have the case remanded to federal court because a year passed.

"That creates an incentive to say, 'Let's put this in state court and let the clock run,'" he said. "That's what [the Alameda Superior court] cases reflect."

Chhabria responded he has a "real obligation in this case to think about how it will apply in other cases."