2/26/19 REUTERS LEGAL 23:12:36
Copyright (c) 2019 Thomson Reuters
February 26, 2019
Drawing judge’s ire, lead plaintiffs’ lawyer in Roundup MDL urges him not to sanction
(Reuters) – The lawyer leading a lawsuit alleging Bayer AG’s glyphosate-based weedkiller Roundup causes cancer on Monday urged a federal judge not to sanction her over her opening statement at trial.
U.S. District Judge Vince Chhabria had admonished Aimee Wagstaff of Andrus Wagstaff while she was giving her opening statement earlier on Monday for referring to evidence the judge had restricted from the initial phase of the trial in San Francisco. He asked her to show cause why she should not be sanctioned.
Wagstaff in response said she had not intended to violate the judge’s order and imposing sanctions on her would be unfair and improper.
“Given the ambiguity surrounding some of the court’s prior evidentiary rulings, the judgment calls made by Ms. Wagstaff and her team regarding what is relevant to Phase 1, were reasonable and in compliance with the court’s orders,” Wagstaff wrote.
Monday’s opening statements were in the case of Edwin Hardeman, the second Roundup lawsuit to got to trial and the first to be heard in federal court.
The trial comes six months after a California state court jury awarded $289 million to a man who blamed his non-Hodgkin’s lymphoma on glyphosate-based products.
That verdict was later cut back to $78 million and Bayer is appealing, but the company, which denies the allegations, faces more than 9,300 Roundup cancer lawsuits nationwide. Some 760 of those cases are consolidated before Chhabria in the federal litigation, in which Hardeman’s case is serving as a bellwether.
The case is proceeding differently from last year’s state court trial following a January order by Chhabria to split test trials into a causation and liability phase.
The judge mainly excluded plaintiffs’ evidence of alleged corporate misconduct from the first phase, instead initially focusing the trial on scientific evidence to determine whether Roundup caused Hardeman’s cancer.
Chhabria accused Wagstaff of violating those orders on Monday, repeatedly interrupting her opening remarks and reprimanding her.
“Ms. Wagstaff, you have crossed the line so many times in your opening statement, it’s obvious that it’s deliberate,” Chhabria said, according to a transcript.
Wagstaff drew the judge’s ire when she raised Hardeman’s personal life and his family, attempted to discuss the U.S. Environmental Protection Agency’s work and ventured into an explanation of a glyphosate assessment by the World Health Organization’s cancer unit – all issues Chhabria had excluded from the causation phase.
The EPA and other regulators around the world have concluded glyphosate is not likely carcinogenic to humans. But the World Health Organization’s cancer arm in 2015 classified the chemical as “probably carcinogenic to humans.”
“You were talking about the EPA and you were referring to the EPA being vulnerable to political pressure,” Chhabria said. “Totally inappropriate. Totally inconsistent with everything we’ve discussed over the past several months.”
Chhabria said he tentatively weighed sanctioning Wagstaff $1,000 for her “transgressions,” and asked her to respond to his order to show cause for “willfully and repeatedly” violating the court’s orders by the end of Monday.
But Wagstaff in her Monday response pointed to the judge’s “complex set” of evidentiary rulings that left “considerable room for debate about what evidence might be allowed during trial.”
“Ms. Wagstaff and her team of lawyers simply did not see the line drawn in the same place that the court did,” Wagstaff wrote, urging the court to refrain from sanctions.
The case is In re Roundup Products Liability Litigation, U.S. District Court of the Northern District of California, No. 16-md-02741.
For plaintiffs: Aimee Wagstaff, David Wool and Kathryn Forgie of Andrus Wagstaff; Robin Greenwald of Weitz & Luxenberg; Michael Miller of the Miller Law Firm; Michael Baum, Pedram Esfandiary and R. Brent Wisner of Baum Hedlund Aristei & Goldman
For Monsanto: Brian Stekloff of Wilkinson Walsh & Eskovitz; Joe Hollingsworth, Eric Lasker, Martin Calhoun and Heather Pigman of Hollingsworth; Pamela Yates and Andrew Solow of Arnold & Porter Kaye Scholer
—- Index References —-
Company: ARNOLD AND PORTER LLP; BAYER AG; KAYE SCHOLER LLP; Miller Law Firm; MONSANTO CO; WEITZ AND LUXENBERG P C
News Subject: (Judicial Cases & Rulings (1JU36); Legal (1LE33); Liability (1LI55); Regulatory Affairs (1RE51); United Nations (1UN54); World Health Organization (1WO40); World Organizations (1IN77))
Region: (Americas (1AM92); California (1CA98); North America (1NO39); U.S. West Region (1WE46); USA (1US73))
Other Indexing: (Pedra