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In a controversial move, the U.S. District Judge presiding over all federal Roundup cancer lawsuits has decided to split a series of upcoming trials into two phases, with the jury first considering whether the plaintiff’s cancer diagnosis was caused by exposure to the weedkiller, before determining Monsanto’s liability for failure to warn and any damages.
Monsanto currently faces nearly 10,000 claims brought in state and federal courts nationwide on behalf of individuals diagnosed with non-Hodgkins lymphoma (NHL) after exposure to the glyphosate-based weedkiller Roundup.
Last year, a California state court judge ordered Monsanto to pay $78.5 million to a former school groundskeeper, after a jury determined that the company knew or should have known about the cancer risk with Roundup, yet withheld information from consumers and federal regulators.
Given similar questions of fact and law raised in complaints brought by individuals throughout the federal court system, U.S. District Judge Vince Chhabria in the U.S. District Court for the Northern District of California has been presiding over consolidated discovery pretrial proceedings for the federal litigation.
After previously determining that plaintiffs have presented sufficiently reliable expert witness testimony on the link between Roundup and cancer to proceed to trial, a series of early “bellwether” trials have been scheduled in the federal court system, with the first set to begin on February 25.
While the outcome of the trial will not be binding on other claims pending, it is being closely watched by lawyers involved in the litigation to provide insight into how other juries may respond to similar evidence and testimony that is likely to be repeated throughout the litigation.
In an unusual move for mass tort litigation, Monsanto recently filed a request to “bifurcate” the upcoming federal trials, seeking to first present the jury with the question of whether the specific plaintiff’s cancer was caused by their exposure to Roundup, before allowing the jury to consider any evidence that is only relevant to the issue of liability or damages.
Despite opposition from plaintiffs, Judge Chhabria issued a pretrial order (PDF) on January 3, agreeing to split the first three federal trials into two separate phases.
“Although this type of bifurcation is unusual and should be done with caution – both generally and in the context of MDL bellwether trials – it is warranted here,” wrote Judge Chhabria in the decision. “A significant portion of the plaintiff’s case involves attacks on Monsanto for attempting to influence regulatory agencies and manipulate public opinion regarding glyphosate. These issues are relevant to punitive damages and some liability questions. But when it comes to whether glyphosate caused a plaintiff’s NHL, these issues are mostly a distraction, and a significant one at that.”
Plaintiffs had argued that bifurcating the trial would cause undue prejudice, and leave jurors wondering during the causation phase how glyphosate could be dangerous if it has largely gone unregulated for decades. However, Judge Chhabria indicated that this was a “relatively minor” concern, which is best addressed by a jury instruction. He also determined that the jury will likely learn during the causation phase that glyphosate was classified as a probably human carcinogen in mid-2015, and that if there is evidence that Monsanto manipulated the outcome of scientific studies, that evidence may also be admissible during the causation phase.
Since bellwether trials are also designed to help the parties weigh the relative strengths and weaknesses of their claims, plaintiffs also asserted that addressing case-specific causation separately from the remaining issues would also limit the informational value of the early trial date. However, Judge Chhabria disagreed.
“[T]he plaintiffs are likely wrong, at least in the context of this particular MDL, that bifurcation would diminish the informational value of the bellwethers,” according to the order. “Monsanto has already lost a $78.5 million judgment in state court, in a trial that was not bifurcated. If Monsanto were also to lose on the causation question in a bifurcated trial in federal court, the parties would learn a great deal about Monsanto’s chances of success (or lack thereof) in all future cases, however structured. And even if a jury found for Monsanto on causation, that would still offer the parties another data point (in addition to the state court trial from 2018 and the anticipated state court trials in 2019) as they attempt to value the cases for settlement purposes.”
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.
Following these bellwether trials, if Monsanto fails to negotiate Roundup settlements or otherwise resolve the litigation, the company is likely to face an increasing number of individual trial dates in courts nationwide in the coming years.