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California Judge Berates Monsanto Lawyer Over Brief in Roundup Cancer Appeal

A California appellate judge said he was seriously considering tossing Monsanto's appeal of a multimillion-dollar verdict due to what he called the agrochemical company's "distortion of facts."

(CN) --- A California appellate judge chastised a lawyer for Monsanto on Tuesday for misleading the court about the evidence at hand for Roundup’s potential for causing cancer in humans. 

First Appellate District Justice J. Anthony Kline told David Axelrad, attorney for Monsanto, that his presentation of evidence in briefs leading up to Tuesday's hearing amounted to a “distortion of facts.” 

“I’m rather astonished at the briefing in this case,” Kline said at the beginning of the hearing. He told Axelrad that he was seriously considering a motion filed by the plaintiffs to toss the appeal because of distortions in the brief.

But Axelrad said Monsanto is not acting with malice or using trickery or deception and is instead advocating a well-supported position that the used herbicide glyphosate --- the main ingredient in RoundUp --- is safe for consumer use.

“There is no evidence of an attempt to conceal information,” Axelrad said. “And there is no evidence that would support and clear and convincing basis for the awarding of punitive damages.”

The case pits a Livermore, California, couple, Alva and Alberta Pilliod, who attributed their cancer diagnoses to years of Roundup use. A jury awarded them $2 billion in damages last year, but a judge slashed the award to about $11 million for Alva and $6 million for Alberta. 

Monsanto appealed, asking for a further reduction in damages or to have the case dismissed entirely. Axelrad argued for dismissal based on the legal concept of federal preemption, where state governments cannot override federal law across a broad range of statutes. 

“By the state court granting California’ right to put a cancer warning on the label they are creating a preemption to the EPA position and creating false and misleading information that is leading the product to be mislabeled,” Axelrad said. 

Because the U.S. Environmental Protection Agency has repeatedly declined to say glyphosate is a potential carcinogen, the states have to abide by those determinations or take their case to the EPA, Axelrad said. 

But the Pilliods' attorney Michael Miller said many federal courts have carved out legal territory where states are allowed to grapple with new and relevant information to update their labeling procedures. 

“Contrary to Monsanto’s arguments, labels can be changed without EPA permission,” Miller said. 

He also argued that his clients’ punitive damages should not be reduced and that high damage awards are necessary to deter corporate America from similar malfeasance in the future. 

“Intentionally marketing a product you know to be harmful is highly reprehensible,” Miller said. “We hope you accept the jury’s conclusions.”

Damages are often calculated by the degree of reprehensibility of the offending conduct and other considerations such as the offender’s wealth, which in the case of Monsanto and its parent company, German chemical giant Bayer, is considerable. 

“Laughing and playing whack-a-mole while my clients got lymphoma that destroyed their lives is one of the most reprehensive things I have seen in my career,” Miller said. “Punitive damages have to deter.”

Justices Marla Miller and James Richman joined Kline on the panel, which took the matter under submission. The judges did not indicate when or how they will rule.

Follow Matthew Renda on Twitter

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