Judge pointedly rejects Monsanto defense even as she reduces verdict

The judge who oversaw the most recent trial against Monsanto departed from others who have tried the cases over alleged harm caused by its Roundup weedkiller, firmly agreeing that its campaign to influence the science was successful, according to legal experts.

Some observers said that the Bayer AG-owned company should more seriously consider settlement in the wake of the ruling, while others questioned if it may come back to haunt plaintiffs' prospects moving forward.

"On one hand, she's validating what plaintiffs have been saying, but will the Court of Appeal look at this and take umbrage and end up hurting them?" said Amy B. Alderfer, a products liability attorney who is not involved in the case.

The judge trimmed on Thursday a $2 billion verdict against Monsanto to $86.7 million, upholding findings concerning its "conscious disregard" for public health over objections that it never "hid evidence" or "captured" scientists and regulators.

"Monsanto's success in those efforts is not relevant to whether the efforts were reprehensible," wrote Alameda County Superior Court Judge Winifred Smith. "By analogy, an attempted crime is still a crime even if it was unsuccessful."

Plaintiffs Alva and Alberta Pilliod will collectively receive roughly $17 million in compensatory and $69 million in punitive damages, down from $55 million and $2 billion respectively. They have the choice of accepting the reduced verdict or a retrial.

R. Brent Wisner, a lawyer for the couple, noted in a statement that the ruling "rejected every argument Monsanto raised." He did not immediately respond to whether the Pilliods will take the now $86.7 million award.

Smith awarded the most in punitive damages allowed under due process, legal experts agreed.

Bayer has lost all three trials over whether use of Roundup causes cancer. It said in a statement that the reduction is a "step in the right direction."

"Bayer expects to appeal on multiple grounds, including that the causation determination and failure to warn claims cannot stand given that leading health regulators around the world have repeatedly concluded that Bayer's glyphosate-based herbicides can be used safely as directed and that glyphosate is not carcinogenic," said spokesperson Chris Loder.

There are 13,400 plaintiffs who have sued the company alleging Roundup 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).

UC Hastings School of Law professor David Levine called the ruling "the strongest of the three in accepting the plaintiffs' case." He noted several unfavorable variables for Monsanto moving forward, including more evidence of the company's alleged misconduct being allowed and public sentiment hurting its brand.

"It may be time to wrap it up," he said, adding that the company is losing ground as it waits for rulings from the appellate courts and trials in other states.

Case Western School of Law professor Andrew Pollis agreed, saying Bayer's foremost consideration may not be the jury verdicts but how the litigation impacts Roundup sales.

"The plaintiffs have the wind on their backs," he said. "Monsanto ought to really consider exposure in a way they didn't before. Whatever arguments they're making aren't working."

All the trial judges have agreed that there is a genuine dispute on the state of the science over the safety of Roundup, but Smith "used much stronger language than we've seen in the other cases" to find that there is only a disagreement because of Monsanto's efforts to distort the science, according to Alderfer.

Alderfer added that appellate courts may identify "inferences," as Smith described in her ruling, as potential vulnerabilities.

"There's still unknowns," she said.