Lawyers for Edwin Hardeman presented their closing argument today in U.S. District Court in San Francisco, asking jurors to punish Monsanto for failing to warn about the cancer risks of its Roundup herbicide.
Attorney Jennifer Moore presented the close for the plaintiff’s legal team, and Monsanto attorney Brian Stekloff made his closing argument, winding down a month-long trial that already recorded a first phase jury verdict finding Roundup was a “substantial factor” in causing Hardeman’s non-Hodgkin lymphoma.
The jury’s decision now is simply a matter of money – whether or not Monsanto should pay damages, including punitive damages, to Hardeman. Though jurors already decided Roundup caused the harm to Hardeman, they have yet to determine if Monsanto should be held responsible for that harm. The jury instructions call for jurors to answer three questions in order to be able to determine damages: Was Roundup’s design defective? Did Roundup lacked sufficient warning of potential risks? And was Monsanto negligent by not using reasonable care to warn about the risks posed by Roundup?
Monsanto’s attorneys have not changed their position that Roundup does not cause cancer. But for the issue of liability they have argued that during the period Hardeman used Roundup – from 1986 to 2012 – no regulatory or health organization required a warning on Roundup labels regarding cancer, and Monsanto had no evidence leading it to believe a warning was necessary.
In testimony Monday, former Monsanto Chairman Hugh Grant defended the company’s conduct surrounding Roundup though he acknowledged the company never did any epidemiology study of Roundup even though the company spent more than $1 billion annually researching new products.
“Monsanto acted responsibly,” company attorney Brian Stekloff told the jury last week. Telling jurors “this is not a popularity contest,” he said there was no evidence Monsanto acted negligently. “Monsanto, consistent with the science, consistent with how the science was being viewed around the rest of the world, did act responsibly and should not be found liable,” he said.
Hardeman’s attorneys have told jurors that there was a wealth of scientific evidence showing cancer risks associated with Roundup but Monsanto chose to try to suppress and/or discredit the information rather than warn customers like Hardeman.
If the jurors find that Monsanto is liable, the parties have already agreed to a figure of $200,967.10 for economic losses. But jurors could elect to add ‘noneconomic damages” to the tally, and they could add punitive damages.
Judge Vince Chhabria said in an earlier ruling that there was “a great deal of evidence” to support a punitive damages award against Monsanto and to show that the company “has not taken a responsible, objective approach to the safety of its product.”
The judge said there is “strong evidence from which a jury could conclude that Monsanto does not particularly care whether its product is in fact giving people cancer, focusing instead on manipulating public opinion and undermining anyone who raises genuine and legitimate concerns about the issue.”
In the first Roundup cancer trial, a jury last August awarded $289 million to plaintiff Dewayne “Lee” Johnson, though the judge reduced the verdict to $78 million.
As Jury Deliberates, a New Study Shows Cancer Links to Glyphosate
Jurors will continue deliberating today, while lawyers for both sides were busy preparing for a second phase in the event the jury finds for plaintiff Edwin Hardeman in this first phase. As part of the preparation, lawyers for both sides have been jockeying over many issues, including what witnesses will and will not be allowed to testify about in a second phase, what type of liability Hardeman’s lawyers can argue, and even how much time Hardeman’s attorneys should be allowed to present their evidence.
Judge Chhabria set specific parameters for how much time each side would have for the trial in total, and Hardeman’s lawyers used much more of their time than did Monsanto’s lawyers during the first phase. As it stands, Hardeman’s side has but 7-1/2 hours left while Monsanto has more than 18 hours left.
Judge Chhabria said he would consider adding some time for the plaintiff, given that side had the burden of proof and had used a good deal of time explaining many scientific principles to the jury necessary for them to understand evidence put on by both sides.
Monsanto attorney Brian Stekloff said that Hardeman’s attorneys had not been as efficient as they could have been, giving a two-hour opening in the first phase. “I don’t know if that was necessary,” he told the judge.
Hardeman’s attorneys have also made it clear that they will be putting on a good deal of evidence about Monsanto’s knowledge of the dangers of its Roundup formulations. “Plaintiff intends to introduce even more evidence in Phase 2 that Roundup is more dangerous than glyphosate because surfactants increase the danger of glyphosate exponentially,” plaintiff’s attorneys told the judge.
Chhabria has agreed – over Monsanto’s objections – to allow Hardeman’s attorneys to proceed in the second phase with a “design defect” argument, though with several caveats.
Meanwhile, yet another new study has been published showing links between glyphosate herbicides and non-Hodgkin lymphoma. The study analyzes data from more than 300,000 farmers and agricultural workers from studies done in France, Norway, and the United States. The researchers said that they found “elevations in risks” of non-Hodgkin lymphoma associated with certain insecticides and with glyphosate herbicides. With respect to glyphosate, the specific type of non-Hodgkin lymphoma linked to glyphosate exposure was diffuse large B-cell lymphoma, the same type of cancer Hardeman has.
3:30 p.m. –Jury is dismissed by judge but lawyers in Roundup cancer trial still discussing how evidence can or can’t be used. He’s still furious over plaintiff’s lawyer Aimee Wagstaff daring to talk about 1983 @EPA dox showing cancer concerns with glyphosate.
Judge is ripping into Aimee Wagstaff again saying he wants to sanction her $1,000 and maybe the whole plaintiff’s legal team as well. Calling her actions “incredibly dumb.”
2:30p.m. post lunch updates:
As Monsanto Roundup cancer trial resumes, plaintiff’s expert witness Beate Ritz talks to jurors about risk ratios, confidence intervals & statistical significance of cancer science. Touts the value of meta-analyses. @Bayer
Dr. Ritz is testifying about the various studies showing increased risk for cancer from glyphosate exposure.
Plaintiff Edwin Hardeman & his wife watch quietly, but during a break express frustration over how much Judge Chhabria has limited evidence the jury is hearing.
Sure-fire way to draw an objection from @Bayer Monsanto attorneys at Roundup cancer trial: mention @IARCWHO scientific classification of glyphosate as a probable carcinogen.
Day one of @Bayer Monsanto Roundup cancer trial concludes after lengthy testimony from scientist Beate Ritz walking jurors through research that shows risks of NHL from exposure to glyphosate herbicides. Judge thanks jurors for being attentive; tells them to stay away from media.
Only one day in and Roundup cancer trial is losing a juror. One of the two men on jury claims work hardship; he can’t afford to lose paycheck. That leaves 7 women and 1 man to decide case. Verdict must be unanimous for plaintiff to win.
11:10 a.m. Monsanto/Bayer wraps up its opening and now preparing for first witness, plaintiff scientist Beate Ritz. More updates from opening statement:
Plaintiff’s attorney calls for sidebar as those statements were barred by pre-trial orders but judge overrules her.
Now Monsanto attorney shows chart saying while glyphosate use has increased over decades, rates of NHL have not. He then says that despite @IARCWHO classification as glyphosate as probable carcinogen @EPA & foreign regulators disagree.
Defense attorney for Monsanto @Bayer on a roll; telling jurors all about the Agricultural Health Study, which showed no ties between glyphosate and non-Hodgkin lymphoma. Lawyer makes point Monsanto had nothing to do with the study.
10:45 a.m.Now it’s @Bayer Monsanto’s turn for opening statements – attorney Brian Stekloff tells jury “Roundup did not cause Mr. Hardeman’s non-Hodgkin lymphoma.”
Judge just orders another Monsanto @Bayer slide removed, interrupting defense attorney opening statement. Playing hardball with both sides.
Plaintiff’s attorney objects to one of Monsanto attorneys slides; judge agrees and slide is removed. Defense attorney making case that Hardeman’s history of Hepatitis C likely to blame for his NHL.
He tells jurors NHL is common type of cancer and most NHL victims are not Roundup users; there is no test a doctor can run to tell a patient his disease was or was not caused by Roundup.
10:15 updates on opening remarks of plaintiff’s attorney Aimee Wagstaff:
Judge now threatening to sanction plaintiff’s attorney and pondering if he should refuse to allow jury to see the plaintiff’s slides. @Bayer Monsanto lawyer says yes. Aimee asks to address his concern; judge cuts her off.
Judge now dismisses jury for break and then RIPS into plaintiff’s attorney – says she has “crossed the line” and is “totally inappropriate” in her opening statements. Says this is her “final warning.” Never a dull moment at the @Bayer Monsanto Roundup cancer trial.
Judge also tells her to “move on” when she tries to explain that @EPA only assesses glyphosate and not whole product.
She is allowed brief mention of @IARCWHO classification of glyphosate as probable human carcinogen but judge cuts her off before she can say much.
In opening statement for @Bayer Monsanto Roundup cancer trial plaintiff’s attorney points to new meta-analysis showing compelling ties to cancer (see Guardian story).
In opening statement for Roundup cancer trial plaintiff’s attorney reads from 1980s-era @EPA memo “glyphosate is suspect” & goes through the story of how Monsanto engineered a reversal of EPA concerns. Jurors look a little confused by all this science stuff.
9:35 a.m. Now plaintiff attorney telling the story of the 1983 mouse study that caused @EPAscientists to find glyphosate cancer causing… before Monsanto convinced them not to. oops. Judge cuts her off again. Sidebar. @BayerMonsanto has to love this. For more on the 1983 mouse study, see 2017 article, “Of Mice, Monsanto and a Mysterious Tumor.“
9:30 a.m. The main theme this morning is the judge is giving no leeway to the plaintiff’s attorney, via @careygillam:
8:49 a.m. Judge Chhabria is showing an early tight rein on this Roundup cancer trial. He stopped plaintiff’s attorney Aimee Wagstaff within minutes of her opening for a sidebar. Wagstaff opened by introducing the wife of the plaintiff, and began telling the story of their life and Hardeman finding the lump in his neck. The judge interrupted to tell Wagstaff to stick to comments dealing with causation only.
8:10 a.m. “Court is now in session”. Courtroom is packed for opening statements in Roundup cancer trial. Right off the bat, Monsanto Bayer, and plaintiff’s attorneys are already in conflict over evidence to be introduced.
8:00 a.m. And we’re off. Six months after a California jury decided Monsanto’s weed killers caused a groundskeeper’s cancer, another California jury is getting ready to hear similar arguments against Monsanto.
This time the case is being heard in federal court, not state court. Importantly, the judge has agreed with a request from Monsanto to try the case in two phases with evidence of potential negligent and deceptive conduct by Monsanto withheld during the first phase to allow the jury to focus solely on evidence pertaining to the question of whether or not the company’s products were to blame for the plaintiff’s cancer.
Plainitiff Edwin Hardeman suffers from B-cell non-Hodgkin lymphoma, which was diagnosed in February 2015, one month before the International Agency for Research on Cancer (IARC) classified glyphosate, a key ingredient in Monsanto’s Roundup and other herbicide brands, as a “probable human carcinogen.
Hardeman used Roundup products regularly to treat weeds and overgrowth on a 56-acre tract he owned in Sonoma County. Documents filed in federal court pertaining to the Hardeman trial can be found here.
Seven women and two men were selected as jurors to hear the Hardeman case. The judge has said the case should run through the end of March. Yesterday Judge Chhabria denied Monsanto a motion for summary judgement.
With the next trial in the mass Roundup cancer litigation set for Feb. 25 in San Francisco, attorneys for Monsanto and plaintiffs are scrambling to take more than two dozen depositions in the waning weeks of December and into January even as they debate how the trial should be organized.
Monsanto attorneys on Dec. 10 filed a motion to “reverse bifurcate” the next trial, Edwin Hardeman V. Monsanto (3:16-cv-00525). Monsanto wants the jury only to hear evidence focused on specific medical causation first – did its herbicide cause the plaintiff’s cancer – with a second phase that would address Monsanto’s liability and damages only necessary if the jury found in plaintiff’s favor in the first phase. See Monsanto’s argument here. Judge Chhabria granted a request from plaintiff’s attorneys to be allowed until Thursday to file their response.
Edwin Hardeman and his wife spent many years living on a 56-acre, former exotic animal refuge in Sonoma County, California where Hardeman routinely used Roundup products to treat overgrown grasses and weeds since the 1980s. He was diagnosed with B-cell non-Hodgkin lymphoma in February 2015, just a month before the International Agency for Research on Cancer declared glyphosate to be a probable human carcinogen.
Hardeman’s case was selected as the first to be tried in federal court in San Francisco (Northern District of California) in front of Judge Vince Chhabria. Attorney Aimee Wagstaff of Denver, Colorado, is lead plaintiff’s counsel on the case. Attorney Brent Wisner of the Baum Hedlund law firm in Los Angeles, and the lawyer credited with leading the victory in Dewayne Lee Johnson’s historic August victory over Monsanto, had been expected to help try the case but now has another case scheduled to begin in March. That case is Pilliod, et al V. Monsanto in Alameda County Superior Court. See related documents on the Monsanto Papers main page.
Monsanto’s new owner Bayer AG is not content to rely on Monsanto’s trial team that lost the Johnson case and is bringing in its own legal defense team. The Bayer team, which helped the German company win litigation over the Xarelto blood thinner, now includes Pamela Yates and Andrew Solow of Arnold & Porter Kaye Scholer and Brian Stekloff of Wilkinson Walsh Eskovitz.
Hearings on specific causation issues are set in the Hardeman case for Feb. 4, 6, 11, and 13 with jury selection scheduled for Feb. 20. Opening arguments would then begin Feb. 25, according to the current schedule.
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