Latest Monsanto dispute concerns expert testimony

Monsanto Co. is trying to improperly change its strategy midstream in the federal Roundup cases by trying to admit new experts and opinions in forthcoming trials, argued attorneys representing nearly 2,000 cancer-stricken people on Friday.

After three losses, the Bayer AG-owned company maintained it is simply refining its defense, according to court filings. It accused the other side of employing an "explicit, strategic gambit" to preclude evidence over changes in the scientific and regulatory landscape, in addition to plaintiffs' theories, concerning allegations Roundup causes cancer.

The Environmental Protection Agency reaffirmed in April Roundup's active ingredient, glyphosate, poses "no risks to public health." Alameda County Superior Court Judge Winifred Smith, presiding over the second state court trial over allegations the weed killer causes cancer, denied Monsanto's attempt to present the development to the jury.

The next federal trial is scheduled to start Feb. 24, 2020.

The latest dispute concerns Monsanto's decision to have its experts, old and new, all testify on epidemiological, animal and mechanistic studies -- like plaintiffs' experts -- as opposed to each individually opining on one of the three.

"Monsanto's experts, therefore, did not offer the ultimate conclusion that Roundup does not cause [cancer]," wrote lead attorney Aimee Wagstaff. "Instead, they offered siloed opinions about each discipline."

Plaintiffs' attorneys have said their experts are more credible because they testified on what they called all the "pillars of science."

The parties spent over two years with U.S. District Judge Vince Chhabria, who is overseeing the consolidated litigation, contentiously vetting experts and their opinions. Wagstaff said allowing new experts to testify would render that meaningless.

The Denver-based Andrus Wagstaff partner argued Monsanto is stuck with its seven chosen experts on allegations exposure to Roundup is capable of causing non-Hodgkin lymphoma, which has been referred to as general causation. She said the problem is of the company's own creation because it won a major pretrial battle to split the trial into two phases on causation and misconduct.

Chhabria rejected a similar proposal from the defense to offer new experts last year, according to court filings.

"I don't think it's appropriate, given everything we've been through already as a team, to be adding general causation experts," Chhabria wrote.

The federal litigation consisted of 122 cases with 217 plaintiffs when Monsanto disclosed its seven experts in 2017. It now has 1,828 cases with 1,980 plaintiffs. In re: Roundup Products Liability Litigation, 16-MD02741 (N.D. Cal., filed Oct. 4, 2016).

The Bayer-owned company is facing as much as $10 billion to settle the lawsuits, according to legal experts. Its shares have lost more than a third of their value, roughly $34 billion, since the first state court verdict finding it negligently and recklessly refused to warn users Roundup could cause cancer.

Monsanto attorney Brian Stekloff disputed the meaning of "earlier rulings requir[ing] such an absurd result."

Referring to an order in which Chhabria finds "the parties may challenge the admissibility of such later-designated expert testimony," Stekloff argued the judge did not mean to "lock in a slate" of experts for all of the consolidated cases. The purpose was instead to determine whether Monsanto could dismiss the lawsuits entirely before they went to trial.

Given that the state of the science and regulation concerning Roundup continues to evolve, plaintiffs' position is unworkable, according to Stekloff.