SAN FRANCISCO (CN) — Roundup manufacturer Monsanto urged three Ninth Circuit judges on Friday to overturn a jury’s verdict finding the weed killer caused a California man’s cancer, arguing that the federal judge overseeing the trial allowed the jury to hear from an unreliable expert witness.
Former U.S. Solicitor General Seth Waxman, now a civil litigator with WilmerHale, argued on behalf of the Bayer-owned agrochemical company.
"The trial in this case never should have been held,” he said.
U.S. District Judge Vincent Chhabria held a week’s worth of hearings in 2018 on whether the science supporting claims that Roundup causes cancer in humans was strong enough to present to a jury.
In July 2018, Chhabria ruled that expert opinions offered by three of plaintiff’s experts on a causal connection between exposure to Roundup’s main ingredient glyphosate and cancer were “shaky but admissible,” advancing the first federal bellwether jury trial centered around Ed Hardeman, a Sonoma County man who was diagnosed with non-Hodgkin lymphoma in 2015.
Chhabria split the trial into two parts, the first focusing on causation and the second on determining Monsanto’s liability and Hardeman’s damages.
In 2019, a six-person jury awarded Hardeman $75 million in punitive damages and $5 million in compensatory damages for past and future pain and suffering. Chhabria later reduced the punitive damages award by $50 million, finding it excessive.
Waxman said Friday that the jury should have never heard from pathologist Dr. Dennis Weisenberger, whose testimony did not pass the gatekeeping standard for admitting expert testimony that the U.S. Supreme Court enshrined in Daubert v. Merrell Dow Pharmaceuticals.
He said Chhabria applied a more lenient standard than other circuits, finding district courts in the Ninth Circuit "must be more tolerant of borderline expert opinions than in other circuits.”
Judge Ryan Nelson, a Trump appointee, said although he was worried about a circuit split on Daubert, Chhabria probably didn't abuse his discretion when he concluded that the jury should have the chance to weigh plaintiff’s expert testimony.
“It’s a pretty tight minefield here for you,” he told Waxman.
“At a minimum, this court needs to state quite clearly that it hasn't diverged from all the other circuits in the Daubert standard that is applied,” Waxman said. “The gatekeeping function is a real one and that courts cannot allow irrelevant or unreliable testimony to go to the jury on a theory that, well, cross examination can handle this.”
Waxman said an expert could not properly opine that Hardeman’s cancer was more likely than not caused by years of glyphosate exposure. He noted that 70% or more of non-Hodgkin’s lymphoma cases are idiopathic, meaning they have no known cause, though Weisenberger said he was able to rule out idiopathy because of the level of exposure Hardeman had while using Roundup for over 25 years.
Nelson pointed to the Ninth Circuit’s reversals in Wendell v. GlaxoSmithKline and Messick v Novartis, where the courts were found to have improperly excluded expert testimony on causation.
“It strikes me that we’ve got a lot of cases where district courts exclude and then get reversed. I’m sympathetic to the district court here who said ‘I’ve learned my lesson.’ We like district courts who learn the lesson. He seems to have done the right thing here,” Nelson said.
Judge Michael Daly Hawkins, a Clinton appointee, said the jury could have disregarded Weisenberger’s testimony.
“That is always the case,” Waxman said, but “his testimony was so unreliable that it should not have gone to the jury under the gatekeeping function.”
Nonetheless, Chhabria found the fact that a disease’s overwhelming idiopathy does defeat the ability to demonstrate specific causation.
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