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.”
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