A jury in Oakland, California, awarded more than $2 billion Monday to a California couple who alleged Monsanto Co.’s Roundup herbicide caused them to get non-Hodgkin lymphoma. Brent Wisner, a partner at Baum Hedlund in Los Angeles, lead the trial team for Alva and Alberta Pilliod, the plaintiffs who won Monday’s verdict, which included $55 million in compensatory damages and $2 billion in punitive damages.
The verdict is the third against Monsanto, now owned by Bayer AG, over Roundup. It’s also the largest, with previous juries awarding $289 million and $80 million in cases involving individual plaintiffs. Wisner, who also won the $289 million award, for plaintiff Dewayne “Lee” Johnson, spoke with Law.com about Monday’s verdict.
This interview has been edited for length and clarity.
Law.com: Did the jury’s verdict surprise you?
Wisner: Not really. I was obviously very happy with that award, in the sense that it sends a good message. But I wasn’t surprised.
The jury awarded $1 billion in punitive damages to each of your clients. Is that what you asked for?
I actually didn’t ask for $1 billion. I showed them the Monsanto profits for one year— the last year that the Pilliods used Roundup—and it was $892 million. So, I said, when you decide how much the punishment should be, it should be north of $892 million. Then I showed them an email from Monsanto where a chief scientist said the issue of Monsanto causing cancer is a $1 billion question. That was it. That’s all I said.
You talked to some jurors. What did you learn?
I think two things are going on. When it comes to the witnesses, this has now been consistent across all three verdicts: The jury is across the board impressed with our experts. They are the world-renowned experts in whether pesticides cause cancer. And the thing is, Monsanto hasn’t yet been able to find a person who specializes in pesticides causing cancer to testify on their behalf.
What’s the other thing going on?
We tried the Johnson case with 20% of our evidence. There was a whole bunch of evidence we didn’t get to use because it hadn’t been developed yet. So it was the first time we were able to use all the evidence we had, and that clearly made a difference here.
Much of that new evidence were depositions. Any of them stand out?
A couple of big ones. Dr. Bill Reeves: He was put up as the corporate representative, and he prepared for his testimony for 400 hours. I took his deposition over two days, and we played 4.5 hours of his testimony to the jury and showed the jury Monsanto’s take on things. Literally, jaws were dropping.
Dr. Michael Koch: the head of Monsanto’s product safety center. He openly stated that Monsanto’s conduct with regards to ghost writing was unethical. I got him to admit that, which was pretty cool. These depositions allowed us to introduce evidence to documents I knew existed in the Johnson case.
How could this verdict influence other trials coming up over Roundup? Bayer, in a statement Monday, said it would have “no impact on future cases and trials, as each one has its own factual and legal circumstances.”
There’s a trial set in August in the County of St. Louis. I will not be trying that case. It will be Aimee Wagstaff’s firm. Obviously, we’ll support her and help her in any way we can. That will be an important case because it will be the first one in St. Louis outside of California. Maybe it’s just crazy Californians that Monsanto can’t win over. I don’t think it’s true, but we’ll see.
There’s lots of speculation about Monsanto settling these cases in light of yesterday’s verdict. Is that going to happen?
We’ll see. We have a court-ordered mediation in the MDL, and there are five people on that settlement team on the plaintiffs’ side. I’m one of the five, and we’ll see how that goes. We have a hearing with Judge [Vince] Chhabria on May 22.
Bayer has vowed to appeal this verdict. In its statement, Bayer said numerous scientific studies and regulatory agencies, including an EPA review released this month, found Roundup’s main ingredient, glyphosate, to be safe. Bayer also noted that the Pilliods had “long histories of illnesses known to be substantial risk factors for non-Hodgkin’s lymphoma” and that their lawyers “cherry-picked findings from a tiny fraction of the volume of studies available.” What do you think will be the key appellate arguments?
I’ve seen what they’ve done in Johnson. I’ll be frank: That appellate brief has no merit, and I don’t think it’s going to go anywhere. What will they do here? Probably the same thing. They’re probably going to attack me. They do that frequently. In every single case they tried, they file a brief about how Brent Wisner is a bad lawyer and can’t be trusted. I’m sure they’ll have that similar approach in their appeal.
Legal precedent has found that punitive damages of 10 times the compensatory damages or more are unconstitutional, which makes it unlikely that the $2 billion verdict will stand. In fact, the judge in the Johnson case reduced that verdict to $78.5 million. What do you hope to get in the end?
I don’t know if the $2 billion award will stand, but there’s legal precedent for this. The 10-1 ratio that people talk about can be adjusted when the conduct is particularly egregious. And here, we actually have some pretty unbelievably terrible conduct.