(Bloomberg) -- Bayer AG is trying to undo a $289 million verdict over Monsanto’s Roundup weedkiller that it blames on misinformation fed to a jury, while also seeking to avoid having its next test cases go to trial on an accelerated schedule.
If the company can persuade a judge to erase or chip away at the nine-figure verdict -- the first case to go to a jury among 8,700 people in the U.S. who blame the popular herbicide for their cancer -- legal experts say some plaintiffs may be less eager to pursue their claims. Bayer is also fighting to prevent a "rush to trial after trial" that it says will disrupt the orderly flow of litigation if a judge in California applies a rule that allows sick or old plaintiffs to jump to the head of the line.
Jonas Oxgaard, an analyst at Sanford C. Bernstein & Co., estimates that Bayer’s market value is discounted by as much as $15 billion because the San Francisco verdict in August represents the larger cloud of Roundup liability trailing the company after it acquired Monsanto this year. More trials are scheduled for February.
“Getting the first ruling overturned would be huge for Bayer -- likely reversing most of the discount,” Oxgaard said in an email.
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At a hearing Wednesday in San Francisco, Bayer will argue before a state court judge that the scientific studies that helped lawyers for an ex-school groundskeeper win his blockbuster award didn’t actually prove Roundup caused his cancer. The judge has the power to void the verdict or reduce the amount.
“The jury’s decision is wholly at odds with over 40 years of real-world use” of glyphostate-based herbicides, along with scientific data proving the chemical is safe that has been thoroughly reviewed by authorities around the world, Bayer said in a statement.
The $289 million award was the second-largest of the year for a product defect case in the U.S. and the ninth-largest verdict overall. The punitive part of the award is so “excessive” that it “shocks the conscience,” Monsanto argued in a court filing. If the verdict isn’t set aside, Monsanto wants the judge to order a new trial.
“The jury’s hard work should be celebrated, not swept aside,” lawyers for plaintiff Lee Johnson fired back in their own filing, casting Monsanto’s arguments as a “rehash.”
Jurors awarded Johnson $39 million to compensate for the cancer he contracted at age 42 and the resulting loss of work and enjoyment of life. His wife, Areceli, works two full-time jobs since Johnson stopped working, his lawyers argue.
The jury also awarded $250 million to punish Monsanto after finding it liable for a design defect and failing to warn of Roundup’s risks. Johnson argued at trial that Monsanto was well aware of the herbicide’s dangers, and hid them from consumers. He also testified that he was getting scared about his exposure and called the company twice over his concerns and never got a call back.
At issue in a hearing held Tuesday in Oakland, California, was a request to hold a trial as early as December for an elderly couple who both blame their their non-Hodgkin lymphoma on exposure to Roundup’s key ingredient, glyphosate. Alva and Alberta Pilliod, in their mid-70s, claim they’re entitled to an expedited trial “before they die” under the same law that allowed Johnson to fast-track his case.
Monsanto is asking the judge in that case to block the couple’s request because it would undermine the process already established for 250 plaintiffs whose cases are grouped in that court. Allowing the Pilliods to expedite their case would open the floodgates for others to make the same request, as so many plaintiffs in the Oakland cases are older than 70, the company said in a filing.
"Fortunately, the Pilliods are both in remission, and there is no indication of any imminent cancer recurrence that would justify granting them a trial scheduling preference," Bayer said in an emailed statement.
Judge Ioana Petrou in Oakland sided with Monsanto in a tentative ruling last week, but indicated at the hearing that she may reverse herself. She said that if she does, a trial isn’t likely until January, at the earliest. The judge told both sides she wants to review Alberta Pilliod’s updated medical records and scheduled another hearing for Nov. 7.
Steven Kazan, a plaintiffs’ lawyer who has litigated asbestos cases, said other states allow old or sick plaintiffs to request expedited trials. But California is the only state in which damages for pain and suffering are irretrievable when a plaintiff dies. That difference can motivate the state’s judges to grant the requests, he said.
“Monsanto would like for these cases to sit somewhere for years,” Kazan said. “Delay is their friend. It is not a friend for those who are aging, especially if they are sick.”
The San Francisco case is Dewayne Johnson v. Monsanto Co., CGC-16-550128, California Superior Court, County of San Francisco (San Francisco). The Oakland case is Pilliod v. Monsanto Company, RG17862702, California Superior Court, County of Alameda (Oakland).
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