OAKLAND, Calif. (CN) – Ahead of closing arguments in a trial over whether best-selling weed killer Roundup caused a couple’s cancer, Monsanto’s lawyers blocked the plaintiffs’ attorney Tuesday from telling jurors that unless they award hefty punitive damages “champagne corks will pop” and celebratory cries of “attaboy” will ring throughout Monsanto’s boardroom.
Alameda County Superior Court Judge Winifred Smith advised Brent Wisner, attorney for a Livermore couple who attribute their non-Hodgkin lymphoma diagnoses to decades of spraying Roundup, to hold back on dramatic flair.
“Don’t set my hair on fire. That’s not a good idea,” she said. “I don’t like inflammatory language. I don’t like provocative language. You know me well enough. We’re not setting this house on fire.”
Attorneys for Monsanto, now a subsidiary of the German chemical giant Bayer AG, filed a motion early Tuesday morning seeking to bar Wisner from saying anything that might “inflame the jury” in his closing statement.
Alva Pilliod was diagnosed with systemic diffuse Large B-Cell lymphoma in 2011; Alberta was diagnosed with primary central nervous system lymphoma in 2015. Both are types of non-Hodgkin lymphoma.
The Pilliods sued Monsanto after the cancer research arm of the World Health Organization declared Roundup’s active ingredient glyphosate a probable human carcinogen in 2015.
Monsanto attorney Kelly Evans said Wisner had made inappropriate arguments about the corporation at a prior trial, where a jury awarded non-Hodgkin lymphoma patient Dewayne Johnson $289 million in punitive damages. According to their motion, he had said “in that board room, there’s a bunch of executives waiting for the phone to ring. Behind them is champagne on ice.”
While the judge in that case sustained Monsanto’s objection, Wisner continued according to the motion filed Tuesday.
“The number you have to come out with is the number that tells those people – they hear it, and they have to put the phone down, look at each other and say, ‘We have to change what we’re doing.’ Because if the number comes out and it’s not significant enough, champagne corks will pop. ‘Attaboys,’ are everywhere,” he said.
Evans wanted Smith to ensure Wisner is precluded from referencing champagne and “attaboys” during closing arguments Wednesday.
“There were some inappropriate arguments in the Johnson case,” Evans said. “The concept as articulated with respect to what’s going on at Monsanto’s headquarters while jurors are deliberating, we just think is inappropriate.”
Wisner countered: “I have every right to accuse Monsanto of engaging in outrageous malicious conduct. I have every intention of getting this jury angry at Monsanto.”
He said sending Monsanto a message to change its conduct is the whole point of awarding punitive damages, and he’s allowed to argue that a scant award will have a negligible effect.
“If this jury comes back with a small amount of punitive damages, that will be a win for Monsanto because they won’t have to change their conduct. Champagne is an illustration. We’re getting into the realm of limiting improper argument when the case law is pretty darn clear that you can use illustrations to argue legal points,” Wisner said.
“Yes and no,” Smith said. There’s a fine line. If your illustrations and images are ‘They’re happy back at Monsanto and poor Mr. and Mrs. Pilliod have non-Hodgkin lymphoma and they don’t care,’ you have to walk a fine line. What’s passionate and what crosses the line, I think you know where you should draw the line.”
As for the boardroom reference specifically, she said, “I’m not crazy about that one. I understand you think they’ve acted maliciously. But the suggestion that there are going to be ‘attaboys’ around someone’s pain, you don’t need to go there to make your point about what you see as bad corporate behavior.”
Smith said she doesn’t like to interrupt closing argument, but has no compunction about getting involved if necessary.
“Anything that implies, ‘Be an advocate of good over evil,’ just don’t do that. I like to allow the lawyers to present and argue their case, but if I see something that is really crazy, I’ll say something,” she said.
She also said that while Wisner may bring a Roundup bottle to display to the jury, he is not allowed to touch it. Monsanto’s motion made much of an incident during the trial where Wisner demonstrated how the Pilliods sprayed Roundup and nearly hit jurors with a liquid substance which turned out to be water. He also made sure to put on gloves before picking it up.
“This dramatic demonstration served no purpose other than to try to scare the jury,” Monsanto said in its motion. The tactic apparently worked, as a juror passed Smith a note expressing concern.
“The juror asked a question about it and I don’t want that to come up in any context,” Smith said Tuesday.
Wisner said, “I’m going to argue how it was handled. I’m not going to use it.”
The motion also blasted Wisner and his firm, Baum Hedlund Aristei Goldman in Los Angeles, of trying to influence the jury by taking photos with celebrities outside the courtroom. Daryl Hannah and Neil Young showed up for one day of testimony, a fact that did not go unnoticed by the jury.
“One of the jurors was asking about the option of taking a photograph with them,” Monsanto’s attorney Evans said, accusing Baum Hedlund of turning the hallway into a “photo booth.”
“This spectacle can be categorized as nothing other than an intentional attempt by plaintiffs’ counsel to use Mr. Young and Ms. Hannah’s celebrity status to improperly influence the jurors and pressure them to find for plaintiffs,” the motion said. “Plaintiffs’ counsel also undoubtedly knew that seeing these celebrities associating with plaintiffs’ counsel would likely prompt jurors to research their involvement in the trial. If any members of the jury were to perform a simple Google search for Mr. Young or Ms. Hannah, they would quickly learn of their strong anti-Monsanto sentiment.”
The motion also referenced a tweet by Hannah about her courtroom experience during the trial.
“Well that was a trip! – of course I know these skeevy corporate cronies manipulate & lie – but to see it right in front of your eyes is soooo depressing & creepy,” Hannah tweeted.
Smith said someone should have told her about this earlier.
“Nobody told me that Daryl Hannah was here! Or there were issues about taking pictures,” Smith said. “Someone should have said something to me. Any juror that’s approached or is involved with any person who is attending is potentially an issue.”
But, she added, “That ship sailed.”
Michael Miller, another attorney representing the Pilliods, then asked Smith to put a stop to Monsanto using private investigators to spy on jurors’ conversations.
“They have private investigators following us around and they are following jurors and listening to jurors’ conversations,” he said.
Evans said, shocked: “What are you talking about?”
Miller noted an affidavit had been filed by an attorney who is listening to jurors’ conversations.
But Smith said there shouldn’t be any more conversations at this point since the jury will be starting deliberations.
“Hopefully everything will go smoothly tomorrow,” she said.
On Wednesday, Bayer issued a statement calling Miller’s remark “intentionally false and unsubstantiated” and demanding a correction.
“Mr. Miller made an intentionally false and unsubstantiated statement in open court that portrayed Monsanto in a harshly negative light on the eve of closing arguments to advance his interests in a trial where he is adverse to the company,” Bayer said in a statement. “We have informed Mr. Miller that his statement was knowingly false and of his duty to correct his reckless comments on the court record Wednesday.”