(UPDATE – Another juror has just been dismissed. One of the seven women jurors has been dismissed in morning proceedings. That leaves one man and six women. A total of six jurors are required and all must be unanimous in their verdict.)
As day three opens in the first federal trial over claims that Monsanto’s Roundup products can cause cancer, U.S. District Judge Vince Chhabria has made it clear that he has no fondness for plaintiff Edwin Hardeman’s legal team.
Chhabria on Tuesday issued a ruling sanctioning Hardeman’s lead counsel Aimee Wagstaff for what the judge deemed as “several acts of misconduct,” fining her $500 and ordering her to provide a list of all others on her team who participated in drafting her opening statement so that those lawyers may also be sanctioned.
At issue – various remarks made by Wagstaff that Judge Chhabria thought exceeded the tight restrictions he has placed on what evidence the jury can hear. Chhabria wants jurors to hear only about scientific evidence without context about Monsanto’s conduct seeking to influence the scientific record and knowledge of certain scientific findings. Additionally, even though there were no restrictions in place pertaining to the introduction of plaintiff Hardeman to the jury, the judge took issue with Wagstaff’s manner of introduction and description of how he came to learn he had non-Hodgkin lymphoma.
In Monday’s proceedings the judge made his anger at Wagstaff clear, interrupting her multiple times as she addressed the jury and ordering her to alter her presentation. He also instructed the jury more than once not to consider what Wagstaff said as evidence.
In court on Tuesday he chastised Wagstaff and said that he knew her actions were intentionally aimed at flouting his directives because she did not wither under his “coming down hard on her” in court Monday during her opening statement.
Below is a portion of those proceedings from Tuesday. (References to Moore mean Jennifer Moore, who is co-counsel on the Hardeman case.)
THE COURT: All arrows point to this being bad faith, including, by the way, Ms. Wagstaff’s reactions to the objections. She was clearly ready for it. She clearly braced herself for the fact that I was going to come down hard on her. And she was — to her credit perhaps, she was very steely in her response to my coming down hard on her because she knew it was coming and she braced herself for that.
MS. MOORE: Well, I — Your Honor, I don’t think that is not fair; and that is based on assumptions on the Court’s part.
THE COURT: That is based on my observations of body language and facial expressions.
MS. WAGSTAFF: Well, actually, Your Honor, I would just like to talk about that for just one moment. The fact that I can handle you coming down in front of a jury should not be used against me. I have been coming in front of you now for, what, three years. So I’m used to this communication back and forth. And the fact that I was prepared for anything that you had to say to me — and that you interrupted my opening statement a few times in a row — should not be used against me. The fact that I have composure when you are attacking me, it should not be used against me.
THE COURT: I was not attacking you. I was enforcing the rules, the pretrial rules.
MS. WAGSTAFF: You just said the fact that I was able to compose myself is evidence of intent, and that is just not fair.
Plaintiffs’ attorneys in the case believe that the judge’s directive to separate the trial into two phases and sharply limit the evidence they can present to the jury is extremely favorable to Monsanto and prejudicial to their ability to meet the burden of proof in the case. They also say that the judge’s guidance on what evidence can come in and what cannot is confusing. And they point out that Monsanto’s attorney also in opening statements introduced evidence that was banned by the judge, though he was not sanctioned.
Below is a bit more from Tuesday’s proceedings:
THE COURT: And that is — that is relevant to intent. That is relevant to bad faith. The fact that the Plaintiffs have made so clear that they are so desperate to get this information into Phase One is evidence that it was not just a mistake that they happen to put this information in their opening statements.
MS. MOORE: Your Honor, I did not say we were desperate. What I was trying to explain is that the way the trial is set up is unusual. And I think, Your Honor, that you recognize that after the bifurcation order came out; that this is a unique situation where you limit a trial when we are talking about product case like this to only science in the first phase, and it has created confusion on both sides of the aisle.
That’s for sure.
Joke of the day – told to me by a lawyer who wishes to remain unnamed:
Q: “Who is Monsanto’s best lawyer?”
A: “Judge Chhabria.”
