Closing arguments in the third trial over herbicide Roundup began Wednesday—but not without Monsanto raising a host of concerns, such as plaintiffs attorneys referring to champagne on ice in its boardrooms or taking photos with actor Daryl Hannah in front of jurors.
In a motion filed Monday, Monsanto, now owned by Bayer, said it feared that plaintiffs attorney R. Brent Wisner, of Baum Hedlund Aristei & Goldman in Los Angeles, would repeat some of the controversial remarks he made during his closing argument in the first trial, which ended with a $289 million verdict. Among those comments were that Monsanto executives at a corporate conference room at its headquarters in St. Louis had a “bunch of champagne on ice” waiting for their verdict.
But Monsanto also flagged a May 1 incident in which Baum Hedlund’s managing partner, Michael Baum, posed for photographs with Hannah and her husband, musician Neil Young, as jurors were filing out of the jury room after trial. Both celebrities are environmental advocates who have spoken out against Monsanto.
“This spectacle can be categorized as nothing other than an intentional attempt by plaintiffs’ counsel to use Mr. Young and Ms. Hannah’s celebrity status to improperly influence the jurors and pressure them to find for plaintiffs,” wrote Monsanto attorney Kirby Griffis, a partner at Hollingsworth in Washington, D.C. “Plaintiffs’ counsel also undoubtedly knew that seeing these celebrities associating with plaintiffs’ counsel would likely prompt jurors to research their involvement in the trial.”
He asked the judge to warn the plaintiffs lawyers not to do it again.
A Baum Hedlund spokeswoman did not respond to a request for comment.
At a hearing Tuesday, Alameda County Superior Court Judge Winifred Smith, who has been overseeing the trial, which began March 28, appeared concerned that nobody told her about the celebrity photographs earlier.
“Why didn’t somebody tell me about all of this if you were concerned?” she said, according to the transcript. “I can understand why you might be concerned about it, but nobody alerted me that there was a problem.”
She told lawyers to inform her about any other incidences involving jurors and the celebrities.
“I don’t want this to turn into some, you know, event, because it’s not,” she said.
Yet among those in attendance at Wednesday’s closing arguments was filmmaker Oliver Stone.
The trial is the third in which Roundup has been alleged to have caused someone to get non-Hodgkin lymphoma. After the first verdict, in San Francisco County Superior Court, jurors in federal court in San Francisco came out with an $80 million award in March.
It’s not the first time Monsanto has complained about the conduct of plaintiffs attorneys.
“Throughout this trial, including in opening statement, Monsanto has been forced to move for mistrial or otherwise object to improper argument and actions by plaintiffs’ counsel,” Griffis wrote in Monsanto’s motion.
In addition to the Hannah photographs, Monsanto noted that Wisner, in the first trial, had invited jurors to come out with a verdict that “changes the world” and made personal attacks against Monsanto’s executives, the motion says.
During the latest trial, he wrote, Wisner alluded to a “historic” verdict in the case, and plaintiffs attorneys put on gloves to handle a Roundup bottle that only contained water—even spraying it near the jury twice.
“This dramatic demonstration served no purpose other than to try to scare the jury,” Griffis wrote. “Indeed, the court had to instruct the jury that there was no reason to be concerned because the bottle only contained water.”
In court Tuesday, Smith noted that a juror had asked a question about the Roundup bottle and cautioned plaintiffs attorneys to be careful about how they handled the courtroom prop. She also warned Wisner not to use “extreme language” that “might be prejudicial” in his closings and clarified that she didn’t like the boardroom illustration, his reference to rendering a historic verdict or calling a Monsanto witness “completely bonkers.”
“Don’t set my hair on fire,” she told Wisner, who responded that he was a passionate advocate for his client. “It’s part of who I am,” Wisner replied. “And I have every intention of getting this jury angry at them, getting them very angry at Monsanto within the confines of the evidence.”
In its motion, Monsanto said plaintiffs lawyers made sure the public, and jurors, knew of their alliance with Hannah and Young. In addition to taking photos with then, they sat with them in the courtroom, had lunch with them in public, which they documented on Twitter, and mingled with them in front of the courthouse after trial.
In a declaration, attorney Sandra Edwards, of San Francisco’s Farella Braun + Martel, who represented Monsanto in the first trial but was in the courtroom on the day that Hannah and Young attended, said she overheard one of the jurors say “something to the effect of, ‘I wonder if I could get a picture with them.’”
In another declaration, Monsanto attorney Eugene Brown of Hinshaw & Culbertson in San Francisco said he told plaintiffs lawyer Michael Miller, of The Miller Firm in Orange, Virginia, that the behavior was inappropriate. Miller replied that Baum’s conduct was “outside of his control.”
In court Tuesday, Miller had his own gripe: He said Monsanto had an “untold amount of private investigators” following him and “everyone else in the courtroom.”
“But they’re following jurors and listening to jurors’ conversations?” he said, alluding to Edwards’ declaration. “I think that’s something that ought to be stopped.”
That prompted Monsanto attorney Kelly Evans, of Evans Fears & Schuttert in Las Vegas, to respond: “What are you talking about, counsel? It was said in the hallway.”
Smith abruptly cut off the attorneys, noting that jurors would not be having any conversations once they start deliberating.
“If there are any security issues or issues that need to be addressed regarding everyone’s behavior going forward, we can talk about that,” she said.
Miller declined to comment.
Bayer denied that claim in a statement Wednesday morning: “Mr. Miller made an intentionally false and unsubstantiated statement in open court that portrayed Monsanto in a harshly negative light on the eve of closing arguments to advance his interests in a trial where he is adverse to the company. We have informed Mr. Miller that his statement was knowingly false and of his duty to correct his reckless comments on the court record Wednesday.”