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In re Roundup Products Liability Litgation

United States District Court, N.D. California

July 12, 2019

Monsanto Co., 16-cv-0525-VC This document relates to Hardeman



         This ruling addresses Monsanto's post-trial motions other than those related to damages. The Court will file a separate ruling relating to damages on Monday.

         1. There was no material difference between the quality of the causation evidence presented pretrial and at trial. If anything, the testimony of the plaintiffs' causation experts at trial was more reliable than their testimony during the Daubert hearings, because the Court barred them from offering certain portions of their opinions at trial that were without any scientific basis. Thus, for the reasons expressed in Pretrial Orders Nos. 45 and 85, Mr. Hardeman presented sufficient admissible evidence of causation. See Dkt. Nos. 1596, 2799. One note relating to the trial testimony: although Monsanto is correct that Dr. Weisenburger's estimates of Mr. Hardeman's exposure levels were higher than could be supported by Mr. Hardeman's own testimony, the difference is merely a matter of degree. Mr. Hardeman's exposure levels still far exceeded the threshold used in most of the epidemiological literature, and specifically the McDuffie and Eriksson studies.

         2. For the reasons expressed in Pretrial Order No. 101 and at the hearing on July 2, 2019, Mr. Hardeman's claims are neither expressly nor impliedly preempted under current Supreme Court caselaw. See Dkt. No. 2937, 4453; see also Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005).

         3. Although the most strenuous objections to the causation instruction came from the plaintiff, Monsanto now seeks relief based on it. The instruction, which included a modification to CACI 430, was not error, largely for the reasons stated on the record during trial. With respect to the discrete points Monsanto now raises in its motion, it bears noting that nowhere does the causation instruction refer to hepatitis C. Monsanto objects that the modification discouraged the jury from “considering other causes or the possibility of an unknown cause, ” but the instruction refers generically to “other factors” that might cause non-Hodgkin's lymphoma. If the jury focused on hepatitis C, that is a product not of the instruction, but of the evidence presented at trial. Nor did the modification shift the burden of proof to Monsanto; it asked the jury to consider whether Mr. Hardeman had or had not proven that his exposure to Roundup was sufficient to cause his NHL.

         4. For the reasons expressed in Pretrial Order No. 101 and at the hearing on July 2, 2019, there was no error in either the negligent or strict liability failure-to-warn instructions. See Dkt. Nos. 2937, 4453. Nor was it error to list the amount of stipulated damages in the verdict form.

         5. Monsanto is not entitled to a new trial based on the excusal of Juror #4. To begin, Monsanto waived this argument by failing to object at trial. Defense counsel requested that the Court conduct a further investigation before excusing her, but did not object on the record, and in fact stated that Monsanto would “defer to” the Court. In any event, it was appropriate to excuse Juror #4 after three separate jurors confirmed her statement - made after the second day of trial - that she already knew how she was going to vote, and nothing would change her mind. See Harrell v. Taylor, No. C 00-2516 PJH (PR), 2008 WL 4344582, at *15 (N.D. Cal. Sept. 22, 2008) (describing the trial court's discretion surrounding investigations of juror misconduct). And as explained at the July 2, 2019, hearing, the Court's telephone conversation with Juror #4 after her excusal effectively confirmed her conduct.

         6. Under California law, a design defect claim has an amoeba-like quality that makes it near impossible to define with any degree of precision. See Barker v. Lull Eng'g Co., 20 Cal.3d 413, 427 (1978) (“[T]he term defect as utilized in the strict liability context is neither self-defining nor susceptible to a single definition applicable in all contexts.”). Mr. Hardeman's lawyers did not do much to help clarify this ambiguity. Their theory shifted from hearing to hearing (sometimes within the same hearing), and it was difficult to pin them down on the contours of the design defect claim.

         Taking that as a backdrop, there could be two possible bases for the jury's design defect verdict. One is that Roundup was defective because it was sold without a warning. That theory largely, if not entirely, overlaps with the failure-to-warn claim, but that isn't necessarily a problem. It appears that California law allows design defect claims of this nature, although the law, as mentioned, is far from clear. Cf. Arena v. Owens-Corning Fiberglas Corp., 63 Cal.App.4th 1178, 1186 (1998) (explaining that the term design defect “relates more to a legal conclusion that a product has deviated in some manner from what is reasonably expected, than it does to a description of a specific mechanical shortcoming or flaw”). And even if one or the other claim is extraneous in this context, they will simply rise and fall together.[1]

         The second basis - which is the theory Mr. Hardeman's lawyers ultimately told the Court they intended to pursue - is that, warning or no warning, Roundup is so dangerous that it should not be on the market at all, at least for purchase by residential users. It appears that California law also allows design defect claims of this nature. See Arnold v. Dow Chem. Co., 91 Cal.App.4th 698, 716 (2001) (“Appellants' claim is that, due to the content and properties of the products, they cannot safely be used in the home. Period.”).[2]

         Based on the evidence presented at trial and on closing argument by Mr. Hardeman's counsel, the jury verdict must be understood to reflect the first theory: Roundup is defective when sold without a warning. In other words, the defect was the absence of a warning, which effectively caused the design defect claim to merge into the failure-to-warn claim. Perhaps Monsanto's counsel put it best in closing argument: “The first is design defect, and what they are saying is that an ordinary consumer who used Roundup like Mr. Hardeman did would not have thought there was cancer associated with it so there should have been a warning.” See Dkt. No. 3237 at 2749. Construed that way, there is no reason to overturn the jury's verdict on the design defect claim. There was sufficient evidence to support a finding that Roundup is “defective” within the meaning of California law when sold without a warning.

         But to the extent Mr. Hardeman believes that he won a jury verdict on the design defect theory he offered to the Court during discussion of jury instructions (namely, that Roundup should not have been sold for residential use regardless of whether there was a warning), it's worth clarifying that he did not. Mr. Hardeman presented no evidence that Roundup is inherently defective regardless of whether accompanied by a warning. He presented no expert testimony that Roundup could not be used safely with the proper precautions. And he made no argument to the jury that Roundup simply shouldn't be on the shelves for residential use. Indeed, no colorable argument could be made in this regard, at least based on the evidence at trial and the evidence the Court has reviewed in this case over the past several years.

         In sum, the evidence showed no greater defect than the absence of a warning. If this Court were incorrect in interpreting California law as permitting a design defect claim based on the absence of a warning, and if thus Mr. Hardeman's only true path to victory on the design defect claim were the theory that Roundup should not have been sold for residential use at all, then judgment as a matter of law would be entered for Monsanto on the design defect claim.[3]

         7. Monsanto argues that the jury was presented an inaccurate view of the scientific and regulatory landscape based on the Court's “selective admission” of evidence regarding global regulatory approvals. This argument is fundamentally about the scope of the trial. While Monsanto is correct that the jury wasn't presented with the entire regulatory landscape, that is primarily a function of the evidentiary parameters Monsanto itself requested, and was largely granted, in response to motions in limine. Of course, determining which evidence to admit - and for what purpose - required a certain amount of line-drawing. ...

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