Another verdict against Monsanto to be slashed considerably

OAKLAND — A judge will likely slash as much as 95% of the $2 billion verdict Monsanto was hit with in the most recent trial over its Roundup weed killer, a plaintiffs’ attorney said.

Alameda Superior Court Judge Winifred Y. Smith considered Friday how much she should reduce the award because of “constitutional considerations.” She did not entirely dismiss the verdict in her tentative ruling.

Total damages will likely range from $20 million to $100 million, according to plaintiffs’ attorney R. Brent Wisner. There is no final decision on the matter.

Monsanto urged Smith to go one step farther than trimming the award and grant a new trial because the proceedings were “tainted” by inappropriately prejudicial statements and the improper allowance and exclusion of certain evidence, among other issues.

Short of a retrial, defense attorney Tarek Ismail said the verdict should be meaningfully slashed to reflect that “reasonable people disagree on the science” over Roundup’s safety and the jury’s significant compensatory damages award.

“The jury was acting upon passion, prejudice and the like,” he said.

Smith rejected arguments that she made evidentiary errors or that plaintiffs’ attorneys made assertions that warrant a new trial in her tentative ruling, which held punitive and noneconomic damages have to be cut.

A Bayer spokesperson called the reduction a “step in the right direction.”

An Alameda County jury found in May exposure to Roundup caused a couple, Alva and Alberta Pilliod, to develop non-Hodgkin lymphoma. They were collectively awarded $55 million in compensatory damages and $1 billion each in punitive damages.

Smith indicated punitive damages will be reduced so that they are two to four times that of compensatory damages. Ismail countered that they should equal one another if Smith is inclined to award punitive damages at all, arguing “it’s difficult to make a case of malicious, despicable conduct” when the Environmental Protection Agency approved Roundup and continues to find it is safe.

There are “obviously communications that are not very well phrased,” Ismail added, to which Smith laughed, but “that’s not sufficient evidence for punitives when the issue of Roundup’s association [with cancer] remains under investigations and there are studies on both sides of the issue.”

Ismail added the couple should also not be given future damages for pain and suffering, which accounted for $36 million of the compensatory figure, because the rest of the award is “excessive.” Plaintiffs’ attorney Michael Miller maintained that Smith should “respect the jury’s verdict.” He argued for punitive damages to be nine times that of the compensatory figure, which legal observers have said is the uppermost limit of the ratio.

“If we just come down and arbitrarily set a lower [ratio] than what due process consideration allows, we’ve run afoul,” he said.

Monsanto has lost all three trials over Roundup. More than 13,000 plaintiffs have now sued the company alleging its weed killer causes cancer with dozens more being filed every month in state and federal courts. Roundup Products Cases, JCCP004953 (Alameda Super. Ct., filed Nov. 16, 2016).

After discussing post-trial issues, Smith then considered how to proceed with trying the consolidated cases.

Plaintiffs’ attorneys argued two of their clients, Kathleen Caballero and John Novak who are both over 70 years old, have trial preference. Smith tentatively agreed in a ruling late Thursday.

Wisner said the trial should be scheduled for November.

Monsanto accused plaintiffs’ lawyers of attempting to “pervert” the agreed-upon process of choosing representative cases to go to trial. The procedure to manage the proceedings was for each side to choose eight cases and then select which should be tried first.

Smith should focus on “getting different slices of verdicts and judgments by juries so the parties can evaluate the cases,” said Monsanto attorney Michael Kelly. “Trying every case in San Francisco or Alameda [County] won’t provide that sort of analysis,” he continued.

Sandra Edwards, another lawyer for Monsanto, argued Smith has the discretionary authority on how to manage the preferred cases within the consolidated litigation. She added that “there’s no indication [Caballero’s] disease is progressing or getting worse.”

Wisner said plaintiffs would prefer to try the cases in the Alameda County or San Francisco County.