OAKLAND, Calif. (CN) – A California judge cited the First Amendment in her refusal to bar Monsanto from sending geo-targeted mobile phone ads to jurors and other members of the public Thursday, the latest wrinkle in a trial on a San Francisco Bay Area couple’s claims that Roundup weed killer gave them cancer.
Plaintiff attorney Steven Brady with the San Francisco-based Brady Law Group, said Monsanto has been sending in-app pop-up ads to people inside the Alameda County Administration Building, where the trial is being held.
He filed a motion Tuesday asking Alameda County Superior Court Judge Winifred Smith to keep Monsanto from sending such ads for the duration of the trial.
Brady specifically accused Monsanto of geofencing, a process by which one can use GPS, Wi-Fi or cellular data to draw a virtual boundary around a specific location. It can trigger text messages, alerts, notifications or send targeted ads on social media.
At a hearing on the motion Thursday, Brady told the judge: “These aren’t ads selling Roundup, they’re touting safety and scientific studies in this building. It’s going too far,” he said.
The judge disagreed.
“You’re talking about the First Amendment,” Smith said. “Prior restraint is serious and I can’t do that.” She added the plaintiffs’ attorneys were asking her to “assign a subjective intent that I don’t know exists.”
“It’s still jury tampering,” answered plaintiff lawyer Brent Wisner, the lead attorney for plaintiffs Alva Pilliod, 76, and Alberta Pilliod, 74, with the Los Angeles firm Baum Hedlund Aristei Goldman.
Wisner and Brady along with an extensive legal team represent the elderly couple.
In their opposition filed Wednesday, Monsanto’s lawyers called the plaintiff motion “unconstitutional, unnecessary, and dripping with hypocrisy,” because plaintiff law firms have been engaged in a blitz of advertising “disparaging Roundup across multiple media platforms in the San Francisco Bay Area.”
The opposition also pointed to a $5 million ad campaign in 2018 by plaintiff law firms that intensified this year. The campaign included an ad featuring environmental crusader Erin Brockovich, saying “corporations [are] putting their profits over our safety and it’s happening now with Monsanto.”
The defense lawyers also noted that they had moved for a mistrial at the outset of the current trial, “because the jury pool in this case was bombarded with 2,187 anti-Roundup television and radio ads from Dec. 1, 2018 to March 21, 2019, in the local media market alone.”
In the underlying case, the Pilliod couple claim that 35 years of spraying Roundup and its active ingredient glyphosate gave both of them non-Hodgkin lymphoma.
Their case is the second against Monsanto to go to trial in California state court. In the first case last year, a jury awarded San Francisco Bay Area groundskeeper Dewayne Johnson $289 million in damages after finding glyphosate caused his terminal non-Hodgkin lymphoma. A judge later reduced the award to $78 million.
In ruling from the bench, Smith apparently followed a tentative ruling that has not yet been made public. “Unless and until they can no longer sell Roundup,” she said, “I can’t order that they cannot advertise.”