A federal judge has sanctioned a second lawyer who “intentionally joined in the bad faith misconduct” during opening statements of a trial against Monsanto Co. over its herbicide Roundup.
On Tuesday, U.S. District Judge Vince Chhabria of the Northern District of California sanctioned Jennifer Moore, co-lead trial counsel in the second trial over Roundup. The order follows a Feb. 26 decision in which Chhabria sanctioned plaintiffs attorney Aimee Wagstaff, of Andrus Wagstaff in Lakewood, Colorado, for “obvious violations” of his pretrial orders during her opening statement. At that time, he ordered Wagstaff to provide the names of other attorneys who worked with her on that opening statement, which she did last month.
On Tuesday, Chhabria concluded that Moore “intentionally joined in the bad faith misconduct for which Wagstaff was sanctioned.” As he did with Wagstaff, Chhabria ordered Moore to pay $500.
“I strongly disagree with the court’s order,” wrote Moore, of the Moore Law Group in Louisville, Kentucky, in an email. “There is no legal or factual basis for sanctioning Ms. Wagstaff or me and we are considering our options.”
But Chhabria declined to sanction the other five attorneys on the plaintiffs’ trial team, finding he could not “determine with sufficient confidence” whether they had “intentionally committed misconduct.”
Those attorneys were Michael Baum and R. Brent Wisner, partners at Baum Hedlund Aristei & Goldman in Los Angeles; Mark Burton, of counsel at San Francisco’s Audet & Partners; and David Wool and Kathryn Forgie of Andrus Wagstaff.
Wisner declined to comment. The other lawyers did not respond to a request for comment.
The trial, which was the first in the federal multidistrict litigation over Roundup, involved plaintiff Edwin Hardeman, who is in remission from non-Hodgkin lymphoma allegedly caused after he used Monsanto’s herbicide to clear poison oak from his property.
A jury awarded an $80 million verdict for Wagstaff’s client March 27. It was the second award against Monsanto, now owned by Bayer AG, with the first ending in a $289 million verdict last year in San Francisco Superior Court. A third trial ended this month when a jury in Alameda County Superior Court awarded $2 billion to a California couple who both had non-Hodgkin lymphoma.
Lawyers on the plaintiffs’ team in the trial before Chhabria had submitted their responses to his sanctions probe under seal. In Tuesday’s order, Chhabria, after reviewing those documents, found that Moore played a more active role than the other attorneys did in finalizing the opening statement in the days before the trial began.
“It is clear from the attorney submissions—particularly Wool’s—that the issue of violating the court’s pretrial rulings was very much on the team’s radar as of at least February 23rd, but that did not prevent Moore and Wagstaff from going forward with an opening statement that so obviously violated those pretrial rulings,” he wrote.
Wagstaff previously insisted in court documents last month that she had “ultimate decision making responsibility” as to trial strategy, and had not presented the opening statement “in bad faith.” She urged Chhabria not to sanction any member of her trial team.
Moore, at a hearing over Wagstaff’s sanctions in February, defended the opening statement in light of the “unique nature of this trial.” Chhabria had 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.