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May 13, 2019

In Their Hands – Jurors in 3rd Monsanto Roundup Cancer Trial Weigh Evidence

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Jury deliberations were set to resume Monday morning in Oakland, California in the case of an elderly married couple who allege that many years of use of Monsanto’s Roundup herbicide caused them each to develop debilitating non-Hodgkin lymphoma.

Lawyers for plaintiffs Alva and Alberta Pilliod and legal counsel for Monsanto and its German owner Bayer AG presented contrasting closing arguments last week. Jurors then had one day of deliberations on Thursday before taking Friday and the weekend off.

Jurors have a lot of evidence to sift through after 17 days of trial testimony that included 16 live witnesses and 11 more testifying via video. The trial transcript, as noted by Monsanto attorney Tarek Ismail, is more than 5,000 pages long.

The 12-member jury has already had several questions, sending notes to Alameda County Superior Court Judge Winifred Smith with queries about some medical articles and about the testimony of Monsanto expert witness  Dr. Celeste Bello, a medical oncologist hematologist who practices at the Moffitt Cancer Center in Florida. Bello testified that epidemiological data does not show a valid association  between Roundup and non-Hodgkin lymphoma. She said that both Alva and Alberta Pilliod had a history of medical problems and weakened immune systems, which likely led to their cancers. Bello told jurors she agreed with the Environmental Protection Agency’s determination that glyphosate, the key ingredient in Roundup, is not likely to be carcinogenic to humans.

Jurors also asked about some medical articles and a query about how many of the jurors need to agree on individual questions on the verdict forms.  That question prompted Monsanto attorney Ismail to comment to the judge that “we obviously have — seemingly have some sort of split in the jury.”

Nine of the 12 jurors must agree on a verdict but Ismail noted that the instructions to the jury
allows for different groups of nine jurors to agree on different parts of the verdict form. Here is a bit of his exchange with Judge Smith on the company’s concern:

Mr. ISMAIL: “So, for example, Jurors 1 through 9 could say  yes on question 1, and Jurors 4 through 12 agree on — say yes to question 2, but you only have six people who think liability is found.

THE COURT: That’s a function of California law.

MR. ISMAIL: It is. I recognize that. I know you’re not going to change it here. But I’m preserving the objection that it is —

THE COURT: I understand what you’re saying.

MR. ISMAIL: It seems like an inconsistency in the way — where it’s written that a verdict requires nine, and a verdict here would actually potentially not require nine; it could require fewer than nine. And I understand Your Honor is bound by the way the law is written in the CACI, but we’re preserving that objection in light of that.

THE COURT: Well, I have to follow California law, which does explicitly say that not all nine have to answer each question the same way.

Both Pilliods have diffuse large B-cell lymphoma though Alberta’s developed in her brain while Alva’s invaded his pelvis and spine.  Pilliod attorney Brent Wisner asked the jury to award approximately $37 million in compensatory damages for Alberta Pilliod and $18 million for Alva Pilliod. He suggested jurors should consider a punitive damage award for the couple of $1 billion.