Monsanto recently motioned to toss an earlier $25 million jury verdict in a Roundup cancer lawsuit, arguing that the trial shouldn’t have ever taken place.

According to Monsanto and parent company Bayer’s lawyers, the trial was invalid because U.S. District Judge Vincent Chhabria allowed unreliable expert witnesses to present their findings to the jury. Due to these inadmissible opinions, Monsanto says that “the trial in this case never should have been held” and asks the Ninth Circuit panel to reverse the verdict.

Judge Chhabria allowed the opinions to move forward in July 2018, finding that the opinions on glyphosate and cancer contended by the expert witnesses were “shaky but admissible.” As a result of Judge Chhabria’s ruling, the case could move forward to the first federal bellwether trial surrounding Roundup cancer.

In 2019, the six-person jury at this trial awarded a California man $75 million in punitive damages and $5 million in compensatory damages for his 2015 non- Hodgkin’s lymphoma diagnosis. Judge Chhabria later reduced punitive damages to $20 million.

Now, Roundup lawyers seek a reversal of this trial and subsequent verdict. Specifically, the company lawyers take issue with the opinion heard from pathologist Dr. Dennis Wiesenberger.

Dr. Wiesenberger’s testimony failed to pass the U.S. Supreme Court’s gatekeeping standard for expert testimonies. Despite this, Judge Chhabria allowed his testimony to be considered by jurors. The court reportedly applied a more lenient standard for expert testimonies than those seen by other circuit courts.

“At a minimum, this court needs to state quite clearly that it hasn’t diverged from all the other circuits in the [U.S. Supreme Court case] standard that is applied,” Monsanto’s lawyers said. “The gatekeeping function is a real one and that courts cannot allow irrelevant or unreliable testimony to go to the jury on a theory that, well, cross examination can handle this.”

U.S. Circuit Judge Ryan Nelson noted that Monsanto’s lawyers have “a pretty tight minefield” to work within if they want the Roundup verdict to be reversed. Judge Nelson pointed to several other reversals in the Ninth Circuit in which courts improperly excluded expert testimonies, the reverse of the current situation.

“It strikes me that we’ve got a lot of cases where district courts exclude and then get reversed,” Judge Nelson said. “I’m sympathetic to the district court here who said ‘I’ve learned my lesson.’ We like district courts who learn the lesson. He seems to have done the right thing here.”

Monsanto Says Testimony Shouldn’t Have Been Heard by the Jury

However, Monsanto and Bayer lawyers say that Wiesenberger’s testimony was “so unreliable” that it should have never been heard by the jury.

For example, during the trial, Wiesenberger opposed this view by concluding that the California man’s non-Hodgkin’s lymphoma was not idiopathic – or without a known cause – due to the level of exposure to glyphosate he experienced over his 25 year career working with Roundup. However, company lawyers say that over 70% of non-Hodgkin’s lymphoma cases are idiopathic.

Plaintiff attorneys have rejected this argument, noting that Wiesenberger is a reputable pathologist and has been researching the relationship between non-Hodgkin’s lymphoma and pesticides like glyphosate for over 30 years.

Other Roundup Verdict News

This is not the first Roundup verdict that Monsanto and Bayer have contested. Not all of Monsanto’s attempts have been victories. Some of these attempts have been successful, while others have failed.

In July 2019, Monsanto successfully appealed a $2 billion jury verdict which was awarded to a California couple who both developed non-Hodgkin’s lymphoma after being exposed to Roundup. Initially, the jury awarded the couple $55 million in compensatory damages and $2 billion in punitive damages.

Although Monsanto couldn’t completely wipe out the verdict, the court did agree that such high damages were excessive and unconstitutional. As a result, the plaintiffs award was reduced to $17 million in compensatory damages and $69 in punitive damages.

In July 2020, a California appeals court refused to overturn a $289.2 million jury verdict awarded in August 2018 to a school groundskeeper. Shortly after being handed down by the jury, this award was reduced to $78.5 million – though Monsanto asked later for the award to be entirely dismissed. Like in the 2019 case, this award was not overturned but was reduced by 74% to include $20.5 million in damages.

These awards were not part of an ongoing settlement which is being negotiated between Bayer and consumer lawyers. Earlier this year, a settlement seemed as if it were on the horizon, but troubles continue to mount for Bayer. In fact, the company has threatened to file bankruptcy in the face of mounting Roundup verdicts and legal liability.