Monsanto attorneys ask federal judge to avoid California in next phase of Roundup cases

Monsanto attorneys urged a federal judge to avoid California during the next phase of litigation over allegations the Bayer AG-owned company's Roundup weed iller causes cancer.

While two trials are already scheduled, in Missouri and San Francisco, company attorneys argue U.S. District Judge Vince Chhabria of the Northern District of California should adopt a "first-in, first-out" approach for other trials in which groups of 50 cases are sent back to their home districts in the order they were filed.

Future trials should bypass California so the parties can properly "value and evaluate the litigation," defense attorneys argued in court filings submitted Wednesday night.

"The court's proposal, coupled with the developments in the trials to date, accordingly would allow the often unique legal aspects and perspective of one state to distort unfairly a national litigation that spans 66 jurisdictions," wrote Monsanto attorney Brian Stekloff of Wilkinson Walsh Eskovitz.

The defense said California verdicts are no longer helpful in reaching a global settlement because of the state's lower standard to prove causation, a jury pool biased by unfair media coverage and no limit to punitive damages.

California is a "poor candidate to be the sole source of preliminary information about this litigation," said the defense filing.

A "first-in, first-out" approach would offer insight as to how the cases will fare in other states.

At a May 22 hearing, Chhabria allowed the defense to choose a state to try a case.

Monsanto proposed Nebraska and North Carolina, but took issue with the California plaintiffs who would also go to trial in the first wave of cases to be returned to their home districts.

The company's legal counsel appears to be trying to avoid as many California trials as possible.

"The court's plan continues to give one state -- California -- disproportionate weight and thereby has significant potential to impede the overall resolution of this multidistrict litigation," Stekloff wrote.

Three California juries have hit Monsanto with more than $2 billion in the past year. Bayer's stock has plummeted by 47% since acquiring Monsanto a year ago.

More than 13,400 plaintiffs across the nation have alleged exposure to Roundup caused their non-Hodgkin lymphoma. In re: Roundup Products Liability Litigation, 16-MD02741 (N.D. Cal., filed Oct. 4, 2016). Monsanto has indicated it will continue to take the ir cases to trial and says the science is firmly on its side that the ingredients in the weedkiller do not cause cancer in humans.

The next test case before Chhabria in San Francisco federal court will start Feb. 10, 2010 in a lawsuit brought by Elaine Stevick. Meanwhile, another trial in St. Louis County Circuit Court starts Aug. 19.

Plaintiffs' attorneys accused Monsanto of improperly disregarding Chhabria's orders in its proposal. The judge should focus on "the most efficient manner to remand the cases" instead of "selection of a particular venue," argued Aimee H. Wagstaff.

"Resolving the California cases first would substantially reduce the necessary motions practice in subsequent cases resulting in a more efficient process," the Andrus Wagstaff PC partner wrote.

Nebraska-based plaintiffs' attorney David Domina said Monsanto is taking a "big bet" by forum-shopping in Nebraska because the jury pool would most likely not affect the trial outcome but that the company risks losing a significant portion of the Roundup market in the state if public opinion on the weedkiller shifts as he claims it did in California.

Nebraska does not allow punitive damages, which have accounted for the bulk of verdicts against Monsanto, Domina added, but said it would be "peanuts" if litigation leads to a decline in Roundup sales.

But losing a trial in Nebraska would be constructive in starting to craft a settlement, he said.

"Getting decapitated is one helpful way to lose a fight," he said.

Monsanto attorneys may have proposed North Carolina because, unlike California, it does not employ strict product liability, according to plaintiffs' attorney Bo B. Caudill, who is representing a plaintiff in the state.