SAN FRANCISCO (CN) – In a win for Monsanto following more than $2 billion in cancer-trial losses in California against the company’s popular weed killer Roundup, the federal judge overseeing nationwide litigation over the product said Wednesday Monsanto can choose where upcoming cases will be tried.
The tentative bench ruling by U.S. District Judge Vince Chhabria could help Bayer AG-owned Monsanto win future cases by trying them in agricultural states where farmers heavily depend on the company’s glyphosate-based herbicides Roundup and Ranger Pro, and where medical-causation laws favor the defendants.
With roughly 1,200 cases pending in the multidistrict litigation in San Francisco, Chhabria had proposed sending them back to their home districts for trial in phases, starting with 16 cases filed in California. Cases filed in other states would be transferred in subsequent phases.
The proposal comes after a federal jury awarded plaintiff Ed Hardeman $80 million in the first bellwether trial before Chhabria in San Francisco in March. Hardeman claimed decades of Roundup use had caused his non-Hodgkin lymphoma.
Monsanto’s attorney Brian Stekloff, of Washington-based firm Wilkinson Walsh Eskovitz, opposed the plan in court Wednesday. Remanding California cases first likely means getting verdicts in those cases first, which Stekloff said would provide no new data about the litigation given Monsanto’s three trial losses in the state. Additional losses would further weaken the company’s bargaining position in court-ordered settlement discussions.
In addition to the $80 million Hardeman verdict, Monsanto has been ordered to pay $2 billion to a married couple and $289 million – later reduced to $78.5 million – to a school groundskeeper in state court trials in Oakland and San Francisco, respectively. All three plaintiffs alleged they developed non-Hodgkin lymphoma after using Roundup. The World Health Organization’s cancer agency declared Roundup’s main ingredient glyphosate a probable human carcinogen in 2015.
Chhabria rejected Stekloff’s argument by noting the California cases will be sent to federal courts spanning the entire state.
“California is a pretty diverse state,” the judge said. “It’s not like the Bay Area.”
Some observers contend Bay Area residents are too liberal to find for Monsanto.
In a follow-up question, Chhabria clarified Stekloff’s position. “You’d want to pick a state where you think the law on causation is different?” he asked. “More favorable to the defendants?”
“Correct,” Stekloff replied.
Earlier in Wednesday’s hearing, Stekloff said Monsanto wants to try cases in states where glyphosate is “used heavily in agriculture” and has a positive reputation.
Chhabria agreed to remand cases from one additional state during the first phase, but said he will revert to just California cases if the process becomes unwieldy.
Both parties can choose states for subsequent remands. Chhabria suggested they take turns for each remand phase and group states together based on similar laws on medical causation.
Chhabria split up the San Francisco bellwether trials into causation and liability phases to avoid biasing the jury against Monsanto, and Stekloff on Wednesday asked him to formally recommend that judges who get remanded cases also bifurcate their trials.
Chhabria demurred. But “[i]f somebody called me and asked me, I’d say aside from the misconduct in the opening statement, bifurcation worked well,” he said. “It’s a little more challenging for the judge, but I think it worked well.”
The judge recently sanctioned Hardeman’s two lead trial attorneys $500 each for presenting prohibited evidence in their opening statement to the jury.
Also Wednesday, Chhabria set a Feb. 10, 2020, trial date for the next bellwether case. Originally set for this month, Chhabria postponed it to prepare the remaining cases for summary judgment by late 2019.
He also appointed Kenneth Feinberg to mediate settlement discussions between Monsanto and the plaintiff’s MDL Executive Committee.
Feinberg has served as Special Master of the September 11 Victim Compensation Fund and the Asbestos Personal Injury Litigation, and as administrator of the BP Deepwater Horizon Disaster Victim Compensation Fund.
The parties will meet with Feinberg within two weeks.
Aimee Wagstaff, of Andrus Wagstaff in Lakewood, Colorado, argued for the plaintiffs.