(Transcript of today’s proceedings) 

Lawyers for Edwin Hardeman have substantially cut down the number of witnesses and evidence to present to jurors who must decide if Monsanto and its new owner Bayer are liable for Hardeman’s development of non-Hodgkin lymphoma after years of use of Monsanto’s Roundup. They have but a few hours left allotted to them by the judge, who has said he expects closing arguments by Tuesday.

The six-member jury team decided last week that Roundup was in fact a substantial factor in causing Hardeman’s cancer. The trial is now focused on whether or not Monsanto should be blamed, and if so, how much – if anything – the company should pay Hardeman in damages.

But making that case may be difficult given the short amount of time the plaintiff’s attorneys have left in the total “time clock” that Judge Vince Chhabria set. He gave each side 30 hours to make their case.

Hardeman’s attorneys used most of their time in the first half of the trial and now have but a few remaining hours. As a result, they have informed the judge that they will not be calling planned testimony from Monsanto executives Daniel Goldstein, Steven Gould, David Heering, or Daniel Jenkins. They also will not be presenting planned testimony from Roger McClellan, editor of the scientific journal Critical Reviews in Toxicology (CRT), and at least four other witnesses.

McClellan was overseeing CRT when the journal published a series of papers in September 2016 that rebuked the finding by the International Agency for Research on Cancer (IARC) finding that glyphosate was a probable human carcinogen. The papers purported to be written by independent scientists who found that the weight of evidence showed the weed killer was unlikely to pose any carcinogenic risk to people. But internal Monsanto documents  show that the papers were conceptualized from the outset as a strategy by Monsanto to discredit IARC. One of Monsanto’s top scientists not only  reviewed the manuscripts  but had a hand in drafting and editing them, though that was not disclosed by CRT.

Hardeman’s attorneys plan about three more hours of testimony from various witnesses, including former Monsanto Chairman and CEO Hugh Grant, who received an exit payment of about $32 million when Bayer AG bought Monsanto last summer.

Discussion of Damages

Both sides have already agreed that Hardeman has suffered a loss of approximately $200,000 in economic damages, but Hardeman’s attorneys are expected to ask for many tens of millions of dollars, and possibly hundreds of millions of dollars for total damages, including punitive.

Lawyers for Monsanto have objected to any discussion of Monsanto’s wealth and the $63 billion Bayer paid for Monsanto, but the judge has allowed some financial information to be shared with jurors.

Jurors may not ever be told exactly how much money Monsanto has made over the years in sales of its glyphosate herbicides, but a look at just one year of financials – 2012, the year Hardeman stopped using Roundup – shows the company made roughly $2 billion in total profits that year.

Judge Chhabria noted in discussions with attorneys out of the presence of the jury that Hardeman’s attorneys might want to argue that Monsanto spent a lot of money on advertising and payouts to executives rather than conducting long-term safety studies on its products. The money issues might be relevant to jurors’ deliberation over potential punitive damages, Chhabria said.

“It may be relevant to Monsanto’s ability to pay, but it seems even more relevant to the issue of what was knowable — both liability and punitive damages, whether Monsanto’s conduct was extreme and outrageous,” Judge Chhabria said.  “Why can’t they argue, look at all the money Monsanto has been willing to spend on advertising and it’s not willing to,  you know, conduct any sort of objective inquiry into the safety of its product.”

“It is not as much about the company’s ability to pay as it is about the company’s conduct with respect to the safety of its product,” Chhabria said. “Look at all these things that the company is spending extreme amounts of money on, and it’s not willing to lift a finger to conduct any sort of objective inquiry about the safety of its product.  That, I assume, is their argument.”

Chhabria said the evidence of Monsanto’s finance could be “probative” of the  “outrageousness of the company’s conduct.”

Pilliod Trial Beginning 

A third Roundup cancer trial gets underway this week in Alameda County Superior Court in Oakland, California.  Alva and Alberta Pilliod,   husband and wife, take on Monsanto and Bayer with claims they both are suffering from non-Hodgkin lymphoma due to exposure to Monsanto’s Roundup products. Voir dire for jury selection begins today in Oakland and opening statements are expected to begin Thursday.  See documents related to that case at this link. 

The judge in the Pilliod case rejected Monsanto’s request to bifurcate the trial. The legal team presenting the Pilliod case includes Los Angeles attorney Brent Wisner, who gained notoriety for the win by plaintiff Dewayne “Lee” Johnson over Monsanto in the first-ever Roundup cancer trial last summer.