Monsanto complains plaintiffs’ lawyers control which weed killer cases are tried first

OAKLAND -- Monsanto has accused plaintiffs' attorneys of improperly trying to "unilaterally" decide the cases that go to trial in spite of an agreed-upon process.

The Bayer-AG owned company's lawyer, Kelly A. Evans, said in a Tuesday court hearing it is "fundamentally unfair and inconsistent with the notion of this case" that the opposition can disregard the procedure of choosing test cases by abruptly moving for plaintiffs who are dying, over 70 or under 14 to be tried first.

Plaintiffs' attorneys argued one of their juvenile clients should have trial preference.

"The case law is very clear on this," said R. Brent Wisner. "We have clients that we're legally obligated to get to trial as quickly as possible."

Alameda County Superior Court Judge Winifred Y. Smith must address the larger issue of plaintiffs who supposedly have preference in the context of the consolidated proceedings, according to Evans. He added that Smith has the discretionary authority on how to manage the preferred cases.

"There needs to be a process to get meaningful information," Evans said, referring to the procedure of choosing and trying test cases.

Wisner responded that the preferred plaintiffs "trump" typical procedures in coordinated proceedings such as this. He warned that appellate courts have overturned superior courts "trying to do exactly what they are suggesting."

The still-living plaintiffs in two California state court trials resulting in awards of more than $2 billion were dying or over the age of 70, their attorneys claimed.

In the most recent trial, an Oakland jury awarded $2.055 billion to Alva and Alberta Pilliod in May, finding exposure to Roundup substantially contributed to their non-Hodgkin lymphoma. Evans argued that the Pilliods were not dying.

Plaintiffs have won all three trials arguing Monsanto's glyphosate-based weed killer causes cancer. Roundup Products Cases, JCCP004953 (Alameda Super. Ct., filed Nov. 16, 2016).

The procedure to manage the consolidated proceedings was for each side to choose eight cases and then select which should go to trial. Evans argued the preferred cases should count toward plaintiffs' attorneys' selections.

"For a fair process, we ought to have some recognition that you can't have each side selecting eight, and then there's as many preferred cases they want to bring that can then supersede those," the Evans Fears & Shuttert LLP attorney said. "We still think you have discretion."

Wisner, of Baum, Hedlund, Aristei & Goldman PC, shot back that the preferred plaintiffs are not their best cases. Although the Pilliods' trial resulted in a favorable verdict, there are "problems with proving causation" for the elderly and minors.

Smith agreed with Monsanto that trying the preferred plaintiffs "interrupts what we're trying to establish" since they "in some ways do become the test cases."

But with an eye toward the appellate courts, the judge added, "A dying plaintiff is a dying plaintiff."

Evans responded that the Pilliods "had medical conditions but weren't dying" and that the husband was in "complete remission."

"As I stand here, I don't think any of these preference motions are with respect to a dying plaintiff, but I don't know," he said.

Regardless of how she rules on this issue, Smith said the first test cases will be chosen near in August or September. The judge also has to decide whether to bring the preferred juvenile plaintiff into the coordinated proceedings or keep that case in Lake County.

Wisner said plaintiffs' attorneys would prefer to try the case in Alameda County Superior Court. Lake County only has one civil judge.