A federal judge in the first bellwether trial over Monsanto Co.’s Roundup herbicide has sanctioned lead plaintiffs attorney Aimee Wagstaff for “obvious violations” of his pretrial orders.
Wagstaff, of Andrus Wagstaff in Lakewood, Colorado, violated court orders numerous times in her opening statement Monday, according to U.S. District Judge Vince Chhabria of the Northern District of California’s sanctions order Tuesday. He ordered Wagstaff to pay $500 in seven days and, within two weeks after end of the trial, provide a list of every attorney who worked on her opening statement for possible sanctions, as well.
Chhabria, in his order, pointed out six times that Wagstaff violated his evidentiary rulings during her opening.
“Taken together, the first five violations were intentional and committed in bad faith,” Chhabria wrote. “These were not slips of the tongue—they were included in the slides Wagstaff and her team prepared and used for her opening statement, and they were on issues that Wagstaff and her team have made clear throughout the pretrial proceedings they believe are important for the jury to hear at the same time it hears the evidence on causation. Nor were the violations borderline—they were obvious violations of both the letter and spirit of the court’s pretrial rulings.”
Wagstaff did not respond to a request for comment.
Other plaintiffs lawyers in the trial included Wagstaff’s co-counsel, Jennifer A. Moore, of the Moore Law Group in Louisville, Kentucky, and R. Brent Wisner of Baum, Hedlund, Aristei and Goldman in Los Angeles, who got a $289 million verdict last year in San Francisco Superior Court in the first trial nationwide.
Moore declined to provide immediate comment about the sanctions order. Baum Hedlund senior managing partner Michael Baum said he disagreed with Chhabria’s findings.
“That the court has made recriminations against Ms. Wagstaff so public is unfortunate,” he wrote in an emailed statement. ”The lines the court claims Ms. Wagstaff crossed were not clear to us, or even the defendants, a fact underscored by the fact that Monsanto’s lawyers did not object to most of the issues during the opening. We are considering our options and will take the next appropriate action after having more time to digest the court’s order.”
Monsanto, now owned by Bayer AG, faces several more trials this year in federal court and in state court in Missouri.
The sanctions order follows an explosive start to the first federal bellwether trial alleging Roundup caused non-Hodgkin lymphoma. The trial involves plaintiff Edwin Hardeman, who is in remission from non-Hodgkin lymphoma allegedly caused after he used Roundup to clear poison oak from his property.
At Monday’s opening statements, Chhabria, who is in San Francisco, interrupted Wagstaff several times, held sidebars and threatened to sanction her for violating his evidentiary orders. At one point, he told her, “You have crossed the line so many times in your opening statements it’s obvious that it’s deliberate.”
Chhabria bifurcated the trial so that the first phase focused on whether Hardeman’s use of Roundup caused his non-Hodgkin lymphoma, while a second phase would address Monsanto’s conduct. In a court filing to show in writing why Chhabria shouldn’t sanction her, Wagstaff said such an action would be “unfair and improper,” noting that she had offered to exchange opening PowerPoint presentations with Monsanto’s lawyers and complied with the judge’s instructions during trial. The bifurcation of the trial, she wrote, led to evidentiary rules that were “intricate and sometimes difficult to discern.”
On Tuesday, at a hearing on possible sanctions, Moore defended Wagstaff’s opening, noting the “unique nature of this trial.” In his statement, Baum attributed the ”entire controversy” to the bifurcation, which plaintiff’s attorneys opposed, and “complex orders on what is admissible or not” during the trial’s two phases, plus a “massive amount of last-minute preparation and discovery.”
But Chhabria said that Wagstaff had showed “bad faith” by defying orders to stick to scientific evidence during openings. In his sanctions order, Chhabria wrote that Wagstaff referenced topics that were off limits. In particular, he wrote, she told the jury what the trial’s second phase would involve, spent a “significant amount of time” on Hardeman’s personal life, and referenced several pieces of excluded evidence, particularly involving the U.S. Environmental Protection Agency and the International Agency for Research on Cancer, or IARC.
“In addition, because the violations were premediated, it appears that the other members of the trial team should be sanctioned as well,” he wrote.
He ordered each of those attorneys to show why he shouldn’t sanction them, as well, by responding within 21 days after trial.