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December 18, 2018

Monsanto/Bayer Lawyers Respond

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Monsanto/Bayer lawyers responded Friday to de-designation requests concerning several hundred internal Monsanto records, seeking to keep most of them sealed in opposition to requests from plaintiffs’ attorneys. Company lawyers did agree to the release of some internal documents, which could be made public this week.

In the meantime both sides are awaiting a ruling from U.S. District Court Judge Vince Chhabria on a motion made by Monsanto attorneys to reverse bifurcate the first federal court trial in the mass Roundup cancer litigation. That trial is set to begin Feb. 25 and is considered a bellwether that will set the stage for how and if other cases proceed and/or are resolved.

Monsanto would like the federal court trials to be conducted in two phases—a first phase focused on medical causation – did the company’s herbicides cause the specific plaintiff’s cancer – and a second phase to address liability only if plaintiffs prevail in the first phase.

The issues of causation and compensatory damages are “separate and distinct from Monsanto’s alleged negligence and company conduct and would involve testimony from different witnesses,” the company argued. Bifurcation would avoid “undue delay in resolving this case…”

Plaintiffs’ attorneys object to the bifurcation saying the idea is “unheard of” in modern multi district litigation (MDL), which is what Chhabria is overseeing. More than 600 lawsuits are pending in his court alleging that Monsanto’s glyphosate-based herbicides caused plaintiffs’ cancers, and Monsanto failed to warn consumers of the dangers of its products.

“It is simply never done, and for good reason,” plaintiffs’ attorneys argued in a Dec. 13 court filing. “The purpose of a bellwether trial is to allow each side to test their theories and evidence against a real-world jury and, hopefully, learn important information about the strengths and weaknesses of the case to inform collective resolution. Imposing a one-sided procedural hurdle—one that would be a de facto outlier for the 10,000 cases proceeding around the country—does not accomplish that goal. It renders any verdict in this MDL, no matter which side prevails, unhelpful.”

The next hearing in the case is set for Jan. 4.