Judge Sanctions Attorney in Second Day of Roundup Trial

SAN FRANCISCO (CN) – The San Francisco judge overseeing a string of federal jury trials over whether Monsanto’s Roundup weed killer causes cancer on Tuesday sanctioned a lead trial attorney for discussing prohibited evidence in opening statements to the jury.

In a written order issued Tuesday evening, U.S. District Judge Vince Chhabria imposed $500 in sanctions on plaintiff attorney Aimee Wagstaff, of Colorado-based Andrus Wagstaff, ruling she intentionally violated court orders not to reference evidence blocked from the first part of the trial while delivering her opening statement Monday. He said he might also sanction the rest of the lawyers representing California man Edward Hardeman, but will defer ruling until after the four-week trial has wrapped.

“Taken together, the first five violations were intentional and committed in bad faith,” Chhabria wrote in a 3-page order. “These were not slips of the tongue – they were included in the slides Wagstaff and her team prepared and used for her opening statement, and they were on issues that Wagstaff and her team have made clear throughout the pretrial proceedings they believe are important for the jury to hear at the same time it hears the evidence on causation.”

The violations include describing to the jury Hardeman’s personal history and the circumstances surrounding his late 2014 non-Hodgkin lymphoma diagnosis, presumably to engender juror sympathy; presenting a slide that contained a quote from a prohibited document; discussing aspects of the World Health Organization’s International Agency for Research on Cancer, which in 2015 deemed Roundup’s active ingredient glyphosate a probable human carcinogen; and telling the jury the U.S. Environmental Protection Agency is vulnerable to “political” and “internal” shifts, ostensibly to cast doubt on the agency’s conclusion that glyphosate is safe.

Chhabria’s order follows a volatile hearing held after trial proceedings Tuesday, in which he said he believed Wagstaff’s conduct was “premeditated.”

“You didn’t need any clarification; it was obvious. It was obvious and it was obvious yesterday,” he told Jennifer Moore, a Kentucky-based attorney who also represents Hardeman and who argued on Wagstaff’s behalf Tuesday, after listing Wagstaff’s violations. “It’s not news to you right now that those were the violations.”

The fiasco over evidence arguably stems from the bifurcated nature of Hardeman’s trial on claims that 26 years of heavy Roundup use caused his cancer. In January, Chhabria granted a motion by Bayer-owned Monsanto to split each of the three Roundup trials over which he is presiding this year into a medical causation phase addressing only whether Roundup and its active ingredient glyphosate caused the plaintiffs’ non-Hodgkin lymphoma, and a potential second phase addressing Monsanto’s liability and damages.

Chhabria concluded in a written order that although bifurcation is “unusual,” it is warranted because the plaintiffs’ case “involves attacks on Monsanto for attempting to influence regulatory agencies and manipulate public opinion regarding glyphosate.” These issues are relevant to punitive damages and liability, Chhabria explained, but irrelevant to whether glyphosate caused the plaintiffs’ cancer.

“[T]hese issues are mostly a distraction, and a significant one at that,” he wrote in January.

Moore addressed the bifurcation issue in court Tuesday afternoon. Disputing the notion that Wagstaff intentionally violated court orders, Moore instead attributed her colleague’s conduct to confusion over what evidence is allowed in Phase 1 of the trial stemming from Chhabria’s decision to bifurcate the proceedings.

“It has created confusion on both sides of the aisle,” Moore said, adding, “There is absolutely no evidence of intent on the part of Ms. Wagstaff.”

Chhabria disagreed. “She was clearly ready for it,” he said of his rebukes of Wagstaff as she delivered her opening remarks. “She had clearly braced herself for the fact that I was going to come down hard on her. She was very steely because she knew I was going to come down hard on her.”

Wagstaff cut in. “The fact that I can handle you coming down in front of the jury should not be used against me,” she said. “The fact that I have composure when you’re attacking me should not be used against me. You just said the fact that I was able to compose myself is evidence of intent, and that’s just not fair.”

Chhabria also suggested Tuesday that he will sanction the rest of Hardeman’s trial team, saying it was unlikely that Wagstaff had prepared the prohibited slide or her opening remarks alone.

Moore disputed this and shifted the discussion back to bifurcation.

“We were trying to find the best way under these unusual circumstances where we can only talk about the science in Phase 1 and still try to represent Mr. Hardeman to the best of our abilities,” she said.

“Your job is to represent Mr. Hardeman consistent with the court’s rulings,” Chhabria shot back. “Your job is not to violate the court’s rulings because you think it’s more important for Mr. Hardeman to win.”

Moore, choking back tears, couldn’t finish her reply.

Chhabria also addressed Hardeman before closing Tuesday’s hearing.

“I have no reason to believe you are approaching this case in bad faith in any way, but you are in charge of this case,” Chhabria told him.

“You have hired these lawyers; ultimately you are responsible for what these lawyers do in this courtroom. So it seems to me that you have a decision to make,” he said. “You can either tell your lawyers to conduct themselves the way they conducted themselves yesterday, or you can tell them to play it straight.

“If the sanctions don’t work, I have the authority to dismiss your case, which means you lose,” he said. “It’s really up to you how your lawyers conduct themselves for the rest of the trial.”

In a hushed voice, Hardeman addressed the judge. “I understand, your honor.”

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