Yesterday, we took another incremental step towards justice in the second Roundup case to go to trial against Monsanto.  The jury in Edwin Hardeman’s Roundup case against Monsanto determined that Roundup caused him to develop non-Hodgkin’s lymphoma.  The case was full of fireworks with Judge Vince Chhabria sanctioning counsel for Mr. Hardeman and threatening to dismiss the case if there was further mention of internal Monsanto documents showing that the company attempted to hide Roundup’s cancer risk from the public by altering scientific studies and influencing the EPA.  Nevertheless, Aimee Wagstaff and Jennifer Moore, co-counsel for Mr. Hardeman, did a nice job under challenging circumstances and proved to the jury that Monsanto caused Mr. Hardeman’s cancer.

By way of background, Mr. Hardeman’s case is pending before Judge Chhabria and is the first bellwether case in the federal consolidated multi-district litigation (MDL) to go before a jury.  My client, Dewayne “Lee” Johnson’s case was the first Roundup trial overall in the national litigation and was heard in nearby also in San Francisco, but in California state court resulting in a $289 million jury verdict (the jury’s decision was later changed by the presiding judge with the verdict reduced to $78.5 million).  In a somewhat unprecedented move, Judge Chhabria agreed to Monsanto’s demand that the case be bifurcated (split into two parts) and that the jury would first be tasked with deciding only whether Roundup caused Mr. Hardeman’s non-Hodgkin’s lymphoma or whether, as argued by Monsanto, obesity and Hepatitis were to blame for his cancer.  This bifurcation meant that the truth was hidden from the jury in the first phase about Monsanto’s efforts to manipulate the science and influence published studies about the risks associated with glyphosate, the “active” ingredient in Roundup.  Likewise, plaintiff’s counsel was severely hamstrung in evidence and testimony that could be shown to the jury about the devastating impact of Mr. Hardeman’s cancer on him and his family.  The jury was instead tasked with listening only to the hard science and unpacking the dense and complicated medical studies and expert testimony to determine simply: was Mr. Hardeman’s Roundup exposure a substantial factor in causing his non-Hodgkin’s lymphoma?  The jury’s answer: Yes, it was.

The trial now continues with Mr. Hardeman’s attorneys having somewhat more latitude to show the jury evidence of Monsanto’s wrongdoing and explain how contracting cancer due to his Roundup exposure has irreparably changed the lives of Mr. Hardeman and his family.

Many following the national Roundup litigation have remarked on the highly unusual reverse bifurcation of the Hardeman trial, and the harsh criticism that Judge Chhabria has offered related to the plaintiffs’ Roundup experts, and now criticism and sanctions for some of the attorneys who have sought justice on behalf of those harmed by the Monsanto product.  It has been pointed out that Covington & Burling, LLP, a firm where Judge Chhabria worked from 2002-2004, has defended Monsanto’s interests with respect to recombinant bovine growth hormone rBGH in dairy products.  Notably though, Monsanto was never a client of Judge Chhabria, and he worked for Covington for a relatively short time more than a decade ago.  While Mr. Hardeman’s counsel characterized Judge Chhabria as “attacking” her at times, some of the judge’s rulings have gone against Monsanto.  The judge also sharply rebuked Monsanto’s failed Motion for Summary Judgment, observing, “The plaintiffs have presented a great deal of evidence that Monsanto has not taken a responsible, objective approach to the safety of its product.”  Judge Chhabria will preside over the second phase of the Hardeman trial as well as all other trials in the consolidated federal MDL.  State court cases will be heard by other judges.

The next trial, Pilliod v. Monsanto, is slated to begin March 25, 2019 in Superior Court of California for the County of Alameda before Judge Winifred Smith.

 

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