(CN) – San Francisco federal judge Vince Chhabria’s decision to split up the pivotal bellwether trials over an alleged link between Monsanto’s herbicide Roundup and cancer was controversial. Long perceived by its critics as deceitful and greedy, the agrochemical giant would finally be judged solely on the science.
But some observers questioned how a jury could judge the science many say Monsanto manipulated for decades, and accused Chhabria of bias. Legal experts predicted the defense-friendly ruling would help exonerate Monsanto because jurors would hear the company’s strongest arguments before allegations of malfeasance. Attorneys representing the plaintiffs worried they no longer had viable cases.
But in March, the federal jury that heard the first bifurcated trial found the Bayer AG subsidiary liable for not warning plaintiff Ed Hardeman of Roundup’s cancer risks and awarded him $80 million in damages.
A 2018 state court trial involving similar claims, also in San Francisco, wasn’t bifurcated. From the start, jurors heard about the alleged tactics Monsanto used to safeguard its signature product against cancer concerns. They heard Monsanto discredited dissenting researchers, ghostwrote purportedly independent studies concluding Roundup’s active ingredient glyphosate is safe, and used fraudulent data to get regulators to clear Roundup for sale, keeping it on the market indefinitely – and making it the most widely used herbicide in the world.
Non-Hodgkin lymphoma patient Dewayne Johnson was awarded $289 million – later reduced to $78.5 million – in that trial. So Monsanto proposed bifurcating Hardeman’s trial and two other bellwether trials in the multidistrict litigation. In the causation phase, jurors would consider, based on the scientific literature, whether Roundup caused the plaintiffs’ cancer. If the jury found causation, a second phase would determine potential liability and damages.
According to Monsanto, bifurcation was the only way it could get a fair trial since inflammatory evidence presented during Johnson’s trial had overwhelmed the science and tainted the jury. Chhabria agreed, and Monsanto’s detractors pilloried him for it.
But the January ruling contemplated more than the trial proceedings. “Monsanto has already lost a $78.5 million judgment in state court, in a trial that was not bifurcated,” Chhabria wrote. “If Monsanto were also to lose on the causation question in a bifurcated trial in federal court, the parties would learn a great deal about Monsanto’s chances of success (or lack thereof) in all future cases, however structured.”
Bifurcation and stricter federal evidence rules meant the Hardeman jury didn’t hear as much negative evidence about Monsanto as the Johnson jury or as the jury in a state court case currently being tried in nearby Oakland, which heard an expert witness testify Monsanto used skin from animals and humans that had been “baked and cooked” and rendered impenetrable to test the dermal absorption of glyphosate. Yet Hardeman won – a feat more remarkable because he also had chronic hepatitis C, a major risk factor for developing non-Hodgkin lymphoma.
Hardeman “tells us the plaintiffs can win these cases when bifurcated,” Alexandra Lahav, a law professor at the University of Connecticut, said by phone. “We thought causation would look weak, relatively speaking. That’s not how it panned out. To me it looks like more of a 50-50 on causation.”
That’s a blow for Monsanto, which has always argued the science proves glyphosate is safe. The company may now try more cases and appeal adverse verdicts before seriously negotiating a settlement.
“Even if they lose, they get them reversed on appeal and take the wind out of their sails,” said Lahav when asked what Monsanto might do post-Hardeman. “Then settle the most egregious cases and leave the rest to settle later for less money.”
But bifurcation and Chhabria’s limitations on trial evidence have arguably strengthened Hardeman’s hand. By isolating causation and liability questions, precluding Hardeman’s attorneys from introducing prejudicial evidence and sanctioning them for trying to sneak it in, Chhabria weakened Monsanto’s appellate arsenal: The company can’t argue it got an unfair trial.
“[T]hat was a very prudent move by Judge Chhabria to bifurcate the trial for that very reason, because it renders the causation verdict much less likely to be reversed,” University of California, Berkeley, School of Law professor Andrew Bradt said by phone.
“Be careful what you wish for,” he added.
A series of airtight bellwether wins for the plaintiffs would give Monsanto little choice but to settle the 13,400 other cancer suits it faces nationwide. But the Hardeman verdict is by no means safe. In posttrial motions, Monsanto will likely challenge the $75 million punitive damages award, the state failure-to-warn claims and the design-defect claim, the validity of which Chhabria questioned during trial. At the Ninth Circuit, the company will probably also challenge the sufficiency of the scientific evidence and the methods Hardeman’s experts used to link Roundup with his cancer, which they said they don’t use with their own patients.
The latter could shift momentum to Monsanto. According to Adam Zimmerman, a professor at Loyola Law School in Los Angeles, a finding the expert evidence was improperly admitted would mean retrying the case on other, weaker, science.
“Its best bet is to limit the scope of the information that has clearly hurt it at trial, because it’s that expert evidence the plaintiffs have relied on to tie Monsanto’s Roundup to their cancers,” Zimmerman said by phone. “If they can exclude it, then there’s not going to be a lot the plaintiffs then have to show general or specific causation.”
Federal judges enjoy wide latitude to decide what expert evidence a jury can hear, so appellate courts are reluctant to reverse them. And the Ninth Circuit probably won’t reverse Chhabria, who criticized Hardeman’s expert evidence but found it passed muster under the Ninth Circuit’s relaxed standards. Monsanto could try again at the U.S. Supreme Court, which prefers reviewing cases involving circuit splits. Whether the high court deems expert evidence worthy of review, however, is up for debate.
Monsanto may be more successful arguing pre-emption. The company says Hardeman’s state failure-to-warn claims are pre-empted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), since the U.S. Environmental Protection Agency approved Roundup labels with no cancer warnings. An adverse ruling from the Ninth Circuit could also trigger retrial or end the case altogether, and one from the Supreme Court would invalidate all federal verdicts for plaintiffs.
Whether the company pursues pre-emption partly depends on how the Supreme Court decides Merck’s pre-emption case over osteoporosis drug Fosamax next month. While current high court precedent says label approval by a federal agency doesn’t pre-empt state-law claims, new justices Neil Gorsuch and Brett Kavanaugh could change that.
“If this court changes the standard, that could have ramifications for lots of types of pre-emption claims when someone goes to the EPA,” said Zimmerman. “The big question is, who do we feel comfortable with deciding these questions – regulators or jurors?”
In addition to an appeal, Monsanto could settle. MDLs almost always settle, and Chhabria recently ordered the parties into private mediation. But Monsanto has vowed to continue defending Roundup, and experts predict it will keep its word as long as shareholders allow.
A prominent expert on bellwether cases, UConn’s Lahav said Monsanto needs to try more bellwethers before choosing a settlement strategy.
“The lesson of Hardeman is that these are very close cases,” Lahav said. “If we did 20 of these, we might find out it was an outlier and the rest are defense verdicts. It’s hard to say from one trial how most cases would do.”
Lahav believes Bayer will try to minimize plaintiff payouts by settling the strongest cases first. That could mean settling with “the best lawyers with the best cases.” Or it could settle the bellwethers before trial to curtail media attention and its opponents’ leverage in settlement talks, she said, adding the practice raises ethics issues because it can negatively affect other plaintiffs.
“It changes the narrative, it changes what you write about, it affects the atmosphere in which large settlements are negotiated,” Lahav said of “picking off” bellwethers.
Elizabeth Chamblee Burch, a law professor at the University of Georgia, analyzed ethics issues in her forthcoming book “Mass Tort Deals.” Using data from 10 public MDL settlements, Burch uncovered a pattern: Plaintiff’s counsel and defense lawyers often broker deals that may force plaintiffs to “settle on the cheap.”
In the MDL over Johnson & Johnson’s acid-reflux medicine Propulsid, only 37 of 6,012 plaintiffs got settlements totaling a paltry $6.5 million – “the equivalent of a regulatory fine,” according to Burch. But lead lawyers got over $27 million in common-benefit attorneys’ fees, the money leaders get for representing all MDL plaintiffs in addition to their own clients.
These deals require leaders to bless provisions that minimize a plaintiff’s recovery, Burch writes, like enrolling nearly 100% of plaintiffs in claims programs, where many claims may be rejected. Non-lead lawyers are often required to drop clients who refuse to settle, making it harder to go to trial for a fairer deal.
“The real danger isn’t to the Hardemans of the world who get to go to trial,” Burch said by phone. “The real danger is to the people waiting behind Hardeman in line who never get to court.”
Burch’s book identifies multiple lead lawyers who have benefitted from these deals; none are leaders in the Roundup litigation.
A final wrinkle: A judge’s success is measured by how quickly they shepherd an MDL to a final settlement, so they may push parties to settle prematurely. Burch says trial-oriented judges who reject this path usually issue merits-based rulings, hold bellwether trials and, importantly, send cases home for trial.
Chhabria has ticked the first two of these boxes and appears willing to tick the third. On April 11, he delayed the next bellwether trial to refocus on “determining which cases must be remanded to state court, and preparing the remaining cases for transfer back to their home districts for federal court trials.”