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Q&A: A Holistic Approach to Pesticide Litigation
Plaintiff attorneys Jennifer A. Moore and Aimee Wagstaff led the team that tried the first bellwether case in federal multidistrict litigation involving allegations that Monsanto’s Roundup weed killer causes non-Hodgkin lymphoma. They spoke with Trial about how they prevailed in that trial, the lessons they learned, and their strategies for approaching complicated science and working with experts in pesticide litigation.
May 2020How did you get involved in the Roundup litigation?
AW: I started working on this litigation in 2015 when the International Agency for Research on Cancer (IARC) issued the 2A classification of glyphosate, which states that glyphosate—the active ingredient in Roundup—is a probable human carcinogen.1 My law firm was one of the first to enter the litigation, and we started by talking with experts. Pesticide litigation and toxic tort litigation often involve confusing scientific propositions, so we hired experts who had authored the literature or who had been studying pesticides their whole careers and asked them to teach us the science. Eventually, I was appointed as colead counsel in the Roundup multidistrict litigation (MDL).
JM: After IARC came out in 2015 stating publicly that glyphosate is a probable human carcinogen, I started receiving phone calls from people suffering from non-Hodgkin lymphoma wanting to know if Roundup caused their cancer. As the litigation progressed, Aimee asked me to try the first (and to date only) federal court case, Hardeman v. Monsanto, with her.2
The Roundup litigation involves thousands of plaintiffs. Does this affect how you approach individual cases or overall strategies and themes?
JM: When we tried the Hardeman case, we knew it would impact thousands of people’s lives. You must be laser-focused for your client, no question—but you also have to understand the overall impact the case could have on others. And that doesn’t really leave you, especially when you walk in the courtroom and every single day it is packed with the team of attorneys from Monsanto, reporters, activists, and the other plaintiffs and plaintiff lawyers who attended our trial. The big picture is extremely important to show the jury how one case can truly change the world.
AW: It affects your approach during discovery. You must be broad enough and ask general enough questions that you capture information for all time frames because when the person was exposed to Roundup makes a difference in how you try the case. But then in trial, you’re just trying that one particular case on behalf of the plaintiff or plaintiffs in the courtroom with you. Once in trial, even though it’s an MDL, you are solely focused on your trial plaintiffs, and you do whatever you can to help them get the best result.
During discovery in pesticide litigation, what should plaintiff attorneys be looking for to build their case?
AW: Look at key events and then tailor discovery around those events, finding emails and communication that occurred during that time. For example, in this litigation, early 2015 was a critical time when IARC’s determination came down. We developed a trial theme that was related to Monsanto’s preparation for, and reaction to, that IARC determination.
Also, you need to identify the key players and trace their communication and actions (or inaction) through high-level document coding. You need to devote countless hours to reviewing documents and developing your trial themes before you take any depositions. Because we approached each corporate deposition as a trial deposition, we spent months and months analyzing the documents before we took any depositions.
Causation often is a hurdle in toxic tort cases. What approach did you take?
JM: It is all about the strong science and teaching the jury through your experts. In the MDL, the judge bifurcated causation with the first phase focused on general causation. Each side produced general causation experts and after extensive Daubert briefing and hearings, the court determined that the plaintiffs had met their burden and that our case could move forward. Then the judge did the same thing in our trial, which is really unheard of—phase one was causation only and phase two was liability and damages. The court limited phase one to science, which was helpful in some ways, because we were able to home in on how strong the science is that Roundup can cause non-Hodgkin lymphoma. We then had our experts come off the stand and teach the jury the science just like teachers do in a classroom.
AW: We presented a “three pillars” approach to teaching jurors the science, and we called the three pillars genotoxicity, epidemiology, and toxicology.3 We let the jurors know that you need to look at all three pillars to understand the science and that looking at just one or two pillars gave an incomplete snapshot of the science. We had all of our experts look at all three pillars. Monsanto took the approach that the pillars need to be analyzed in a silo and had their experts look at only one pillar. Monsanto really had a piecemeal approach, and we had a holistic approach.
How did you use this “three pillars” theme with your experts to present the science to the jurors?
JM: I think presenting causation to jurors is multifactorial. A great deal depends on your experts and their ability to explain things in a way that everyone can understand. And you need to present information in different ways because, for example, some people learn visually and others by listening.
We had an epidemiologist, a toxico-logist, and a genotoxicity expert who opined about the three pillars of science and how looking at them together as a whole puzzle shows that Roundup causes non-Hodgkin lymphoma. When you have experts on general causation, have them review all the epidemiology, all the toxicology, all the genotoxicity, all the cell studies—don’t pigeonhole them into one particular pillar of science. That is really important because if you just look at one piece, it could set your expert up for failure. Monsanto’s experts looked at only one pillar, but if you look only at animal studies and haven’t examined how genotoxic Roundup is, then you really don’t have a clear picture of how toxic this product is.
AW: Despite what Monsanto screams from mountaintops, the science is on our side in this litigation—the true outlier is the one study that Monsanto built its entire defense around. A unique aspect of this case is that you can’t really look at the science on its face because Monsanto had a 40-year head start manipulating it. Look at the conflicts of interest, at where these people work, at who actually funded the science, and at who had the “kill control” on studies and cases. Once we got the documents, we really learned how much Monsanto’s fingerprints were all over everything.
What were some specific presentation methods your experts used?
JM: We used huge blow-ups with our experts. For epidemiology, we had a chart that contained all of the studies showing a link between Roundup and non-Hodgkin lymphoma. It is always effective to bring the expert off the stand. For example, Aimee had our epidemiologist, a professor at UCLA, come down and teach the jurors about the studies. Using visuals, she went through each one and explained odds ratios, confidence intervals, and more.
We had a hematopathologist (who studies diseases of the blood), who used a blow-up to go through a differential etiology with the risk factors for non-Hodgkin lymphoma that the scientific community had identified, including exposure to pesticides such as Roundup. I had him stand in front of the jury with the blow-up and walk the jurors through how he ruled in and ruled out the risk factors and concluded that Roundup was a substantial factor in causing our client’s non-Hodgkin lymphoma. Your experts need to explain things to jurors like they are telling a story.
The industry denies that glyphosate is a carcinogen, and the EPA has released conflicting information. How did you handle this at trial?
AW: Monsanto wanted to make this about glyphosate, but that’s not what we are alleging. Glyphosate is just one ingredient in the secret sauce we call Roundup—there are several other ingredients, some of which have been banned by other countries for safety concerns. Monsanto’s own documents, the scientific literature, and our experts support the fact that Roundup is 100 times more toxic than glyphosate alone. Regulatory bodies—including the EPA—do not regulate Roundup; they only regulate glyphosate. And no one sprays just glyphosate on themselves—our clients are all exposed to the more potent formulated product Roundup. Internal Monsanto documents (from recent years) demonstrate that despite making billions of dollars on Roundup, Monsanto has never done a long-term safety study on the weed killer.
JM: You always have to separate fact from fiction. And documents speak volumes. You keep presenting the jury over and over with documents that show the link between Roundup and non-Hodgkin lymphoma. One way that we would separate the EPA’s position is by saying that the EPA is a regulatory body subject to political shifts and influences, including lobbying. And the jury gets that. You have to look at independent scientists who are not subject to industry influence, and that’s what we kept focusing on—when you look at the independent scientific studies, there’s no doubt that Roundup causes cancer.
What was your strategy for presenting damages?
JM: For compensatory damages, we focused on how this is a cancer case. Whenever you have a horrific disease like cancer, it is better to have people other than your client explain the impact and what they personally have observed the client endure. We did that with Ms. Hardeman, our client’s wife—she told stories about the morning they first went to the chemo lab and how after that first trip, she ended up carrying a bucket in the car because her husband would vomit with any type of movement.
You want to take jurors back to that time because they’re seeing your client today in a courtroom, and they don’t know what that experience has been like or what suffering your client endured. You need to paint a picture of that, and I think one of the best ways to do that is with a loved one, a family member, or a close friend who was there with that person during treatment.
Also, the jury instruction is your friend, so look at all the different components of the damages, and identify the harms your client suffered. In California, you’re entitled to compensation for your pain, suffering, anxiety, fear, anguish—there’s a long list.
For the Hardeman case, I used a flipchart and listed out all the harms our client experienced, from hair loss to nausea to vomiting to anxiety. One of the most powerful things came from his testimony: He said that cancer never leaves you. And when I asked what remission means to him, he said it’s a temporary place that he goes to until he has to do a repeat scan and then all the anxiety comes rushing back. Sometimes, effective storytelling doesn’t come from the attorney; it’s from your witness or your client or your client’s loved ones.
From the punitive damages standpoint, we had multiple examples on the liability front of Monsanto’s wrongful conduct over 40 years, and we wove that together with why this company should be punished. We went back to the 1970s and the 1980s when Monsanto knew that this product had issues. And then you look at a time line of all the money it made on sales since then, where it spent its money, the net profits it made, what its cash on hand is, and you paint that all together.
AW: Instead of arguing the strength of the evidence, Monsanto’s main trial theme was to argue that there is actually “no evidence” across the board that glyphosate or Roundup causes cancer. That was really an absurd position to advocate, but Jennifer and I embraced that theme as our own. In our closing argument, we played a clip of the corporate representative saying “no evidence” and then showed a time line of the evidence. That glaring inconsistency tends to upset jurors.
Are there any other takeaways you’d like to share?
AW: Don’t take everything given to you at face value. Keep digging in the documents, and you must outwork your opponent. This defendant was a massive global company, and the defense team was composed of dozens of law firms. You need to find yourself great colleagues whom you trust and be ready for the fight of your life. Our team was the best group of lawyers I’ve ever worked with. They were fantastic, and they all worked really hard.
JM: Here were two women taking on a company like Monsanto, and we would joke that they had more attorneys in the courtroom than Aimee and I had between our two law firms combined. But there is no doubt that with hard work, determination, and an incredible team of attorneys and dedicated staff, justice will prevail, especially with amazing clients like the Hardemans.
Jennifer A. Moore is the founder of the Moore Law Group in Louisville, Ky. She was plaintiff counsel in Hardeman v. Monsanto and is involved with state-level Roundup cases and can be reached at jennifer@moorelawgroup.com. Aimee Wagstaff is a founder of Andrus Wagstaff in Denver and is colead plaintiffs’ counsel in the Roundup MDL and can be reached at aimee.wagstaff@andruswagstaff.com. Kate Halloran is the senior associate editor for Trial.
Notes
- IARC Monograph on Glyphosate, Int’l Agency for Research on Cancer, https://www.iarc.fr/featured-news/media-centre-iarc-news-glyphosate/.
- MDL No. 2741, No. 3:16-md-02741-VC (N.D. Cal. Mar. 27, 2019). An appeal is currently pending in the Ninth Circuit. See Hardeman v. Monsanto Co., No. 19-16636 (9th Cir. filed Dec. 13, 2019).
- Genotoxicity shows how chemical properties damage cells to cause cancer. Epidemiology studies the patterns and causes of diseases among human populations. Toxicology studies the exposure to chemicals and other substances, their safety, and their effects on animals and humans.