Monsanto appeals $87 million Roundup verdict

A jury's finding that the Roundup weedkiller caused a couple's cancer is at odds with U.S. law and the state of the science, Monsanto told an appeallate court.

The Bayer AG-owned company asked the 1st District Court of Appeal in a Friday night filing to overturn an $86 million verdict.

The May verdict was the third consecutive loss for Monsanto on accusations its glyphosate-based weedkiller can cause non-Hodgking lymphoma. It drew national attention after the jury awarded more than $2 billion, the majority of which was to punish the company for misconduct, to Alberta and Alva Pilliod.

Alameda County Superior Court Judge Winifred Smith reduced the damages to $86.7 million.

Bayer has maintained that the majority of U.S. and international regulators have repeatedly found glyphosate to be non-carcinogenic and insisted plaintiffs' attorneys improperly prejudiced jurors. The Environmental Protection Agency reaffirmed the safety of glyphosate in January.

"The jury's verdicts and the damages awarded cannot be reconciled with either the law or sound science, and the court should reverse and enter judgment in favor of Monsanto, or in the alternative, order a new trial on all claims," the company said in a statement.

Across appeals of all three losses, Monsanto's chief argument has been liability is preempted by federal law because regulatory agencies have found glyphosate to be safe, and they would not have allowed the company to include a warning label even if it wanted one

"For decades, EPA has exhaustively reviewed the science, repeatedly determined that glyphosate does not cause cancer, and consistently approved Roundup for sale with a label that does not warn of cancer," wrote defense attorneys at Horvitz & Levy LLP and Bryan Cave Leighton Paisner LLP.

Bayer lawyers emphasized claims arguing Monsanto violated state law by not including a warning label should not have been allowed. Federal laws overseeing herbicide regulation prohibits unnecessary labeling, they argued. Pilliod v. Monsanto Co., RG17862702 (Alameda Super. Ct., filed Nov. 16, 2017).

"Before a warning is required, that risk has to be generally accepted in the scientific community," Hollingsworth LLP partner Eric G. Lasker, who represented Monsanto in a federal trial, said in a May interview. "The regulatory evidence that has come in thus far directly undercuts arguments in that regard."

The federal judge overseeing as many as 75,000 Roundup lawsuits filed by at least 42,700 plaintiffs disagreed with Monsanto's argument. Its position is "difficult -- if not impossible -- to square with" Supreme Court precedent that state claims are not barred by federal statutes, according to U.S. District Judge Vince Chhabria. Bates v. Dow Agrosciences LLC (2005).

R. Brent Wisner, lead attorney representing the Pilliods, previously called Bayer's argument a "Hail Mary" that has been "systematically rejected" by various courts after the state court trial concluded in May.

While three trial judges have rejected the defense, a more business-friendly Supreme court might be more receptive to the claim if it reviews the case, according to some legal observers.

University of Florida Law Professor Lars Noah highlighted the "drift in the way the U.S. Supreme Court has been dealing pre-emption defense." The Bates decision is an "outlier," he said.

Bayer attorneys also advanced arguments that the jury did not properly consider findings suggesting the cause of the Pilliods' cancer is most likely unknown, that improper evidence was allowed and damages to punish Monsanto should not have been granted.

Appellate courts have not issued rulings on Bayer's two other appeals.

Several jury trials, including one in San Francisco federal court, have been postponed as it appears a global settlement might be close. Mediator Kenneth Feinberg asked Chhabria to postpone all legal deadlines by one month in a Friday court filing.