Plaintiffs Oppose Splitting MDL Roundup Bellwether Trials into Phases

While a small ground of Roundup lawsuits are being prepared for “bellwether” trials in the federal court system early next year, plaintiffs are urging the U.S. District Judge presiding over the litigation to reject a proposed plan by Monsanto, which calls for each of the cases to be split into two separate phases for trial.

There are currently more than 9,300 product liability lawsuits pending nationwide, each involving similar allegations that Monsanto failed to adequately warn consumers about the cancer risks associated with exposure to Roundup.

About 600 of the cases are centralized in the federal court system for coordinated discovery and pretrial proceedings before U.S. District Judge Vince Chhabria in the Northern District of California, as part of a multidistrict litigation (MDL).

While a number of state court cases are also proceeding to trial, Judge Chhabria has previously established a “bellwether” program in the federal court system, where the first trial is expected to begin in February 2019, to help the parties gauge how juries may respond to certain evidence and testimony that is likely to be repeated throughout the litigation.

Monsanto has proposed bifurcating the bellwether trials into two phases; asking the jury to consider the issue of general causation about whether Roundup exposure can cause cancer, then separately consider specific causation about whether that plaintiff’s diagnosis of non-Hodgkins lymphoma was caused by the controversial weedkiller.

Judge Chhabria previously agreed to bifurcate pretrial proceedings in the Roundup MDL, with the court considering challenges to expert witnesses before any individual cases were prepared for trial. After the Court found that plaintiffs have sufficient causation evidence to present their claims to juries, a small group of cases originally filed in California federal courts were set for trial next year.

In an opposition brief (PDF) filed last week, plaintiffs attorneys asked Judge Chhabria to reject Monsanto’s proposal, indicating that fails under the law and would diminish any benefits of the bellwether trial process.

“The type of reverse bifurcation proposed by Monsanto—where the defendant is permitted to have a trial on its favored defense before reaching any other issue—is unheard of in the modern MDL bellwether process,” plaintiffs argued in the filing. “Indeed, Monsanto has not and cannot cite any MDL implementing such an approach for a bellwether trial. It is simply never done, and for good reason.”

The brief points out that the manufacturer’s plan would impose a “one-sided hurdle” on plaintiffs, which would make the bellwether decisions useless as measuring sticks for the rest of the litigation, and claims that the plan is not permitted under the law since it would create structural and substantive prejudice against plaintiffs.

Monsanto claims that a typical trial would prejudice the jury against the company. The assertion comes after the first Roundup trial in state court in California resulted in a $289 million verdict for the plaintiff, who received an expedited trial under a local law since the plaintiff was dying of non-Hodgkin’s lymphoma. That jury award was later reduced to $78 million, but the judge presiding over the case upheld all of the compensatory damages awarded and reduced the punitive damages to an equal amount.

In addition to the February 2019 trial date before Judge Chhabria in the federal court system, other Roundup cases are set to go to trial in California and Missouri state courts over the next year, including a case involving a husband and wife both dying from non-Hodgkins lymphoma after exposure to Roundup, which is set to go before a California state court jury in March 2019. After a series of state court cases in Missouri, a consolidated trial involving more than a dozen different individuals diagnosed with cancer is expected begin in October 2019.

While Bayer, which acquired Monsanto last summer, has maintained that it intends to defend the cases filed against its Monsanto subsidiary, if the company fails to negotiate Roundup settlements or otherwise resolve the litigation after additional bellwether trials, hundreds of individual trial dates may be scheduled in courts nationwide in the coming years.