By AOJ – Johnson Juror #4
So here we are, back in Federal Court in San Francisco with Judge Vince Chhabria about to consider motions by Monsanto asking for him to toss the jury’s $80M verdict in favor of Edward Hardeman. I am actually getting used to hanging around courtrooms – a year ago I had just been sworn as a juror in Johnson v Monsanto.
This hearing is in a different courtroom down the hall from where the trial was held. It is a mirror image of the previous one, lending a surreal aura to the proceedings. Even Chhabria is thrown off when he enters, commenting on the fact the attorneys are on opposite sides of the room.
It is the same stellar cast of characters. We have Edward and Mary Hardeman, their lead attorneys, Amy Wagstaff and Jennifer Moore, and the Monsanto attorneys – formerly known as the Dream Team – led by Brian Stekloff. But wait, someone is out of place, could it be? Yes! A Hardeman juror is here in the gallery! I can’t describe how happy I am to see a juror here.
Judge Chhabria gets started with a short description of the excusal of Juror #4 (yes, my heart skipped a beat) who was removed, he reveals, because she/he had expressed to other jurors a firm predisposition on a verdict prior to deliberations, a no-no. I am guessing the issue at hand is that Juror #4 called the judge to ask why she/he was removed, so this communication needed to be on the record.
Jennifer and Brian are at the podiums as Chhabria gets into what will turn out to be the only topic he wants to consider in this hearing, which is the compensatory and punitive awards. That is good news and bad news. The good news is that he is not considering tossing the liability. The bad news is he could toss the damages and order a new trial.
Judge Chhabria is refreshingly candid and dives right into the issue by opining that California puts jurors, and judges, in an unfortunate situation with regard to punitive damage awards. The problem is that SCOTUS has ruled that punitive damages should keep to a 9:1 ratio (or less) with the compensatory damages, BUT, judges are not allowed to tell juries of this because jurors might then be inclined to increase the compensatory award to make up for the punitive cap.
Chhabria sets the punitive topic aside for now and gets into what apparently is his central issue, which is what he sees as an imbalance between the jury’s amount of past ($3M) and future damages ($2M). In his opinion, Mr. Hardeman suffered “a great deal of harm” in the four years from his cancer diagnosis to remission, but the harm after he “got a clean bill of health” (coincidentally around the time of the trial) must be substantially less. “I can’t think of a rational justification.”
Chhabria asks Jennifer what the basis is for the future compensation being “close” to the past compensation. She proffers the obvious: the anxiety of wondering if the cancer will return. And the less obvious: Dr. Nabhan testified that a side effect of the chemo that cured Mr. Hardeman is a higher risk for other types of NHL in the future. Furthermore, Jennifer points out, the defense never disputed this testimony. She also points out that the jury awarded Mr. Hardeman way less than the $1M per year for 15 years that the plaintiffs asked for. “Is there something else you can say to support that the future harm will be as bad as past harm?” It is as though he has something in mind but needs the plaintiffs to say it.
At one point, Jennifer refers to the Johnson and Pilliod verdicts prompting Chhabria to ask, “Are you regretting you didn’t ask for $1b in this case?” What a card. Now Chhabria turns to Stekloff with some more reflection: California law is a mess on whether judge can substitute her/his opinion for the jury’s. Stekloff jumps in and says the court serves as the 13th juror. I think of a fellow juror’s astute assessment of that concept, which was: a thirteenth vote would not have changed our verdict. (It would have made it 12-1 instead of 12-0.)
Getting back to the punitive damages, Chhabria weighs the degree of reprehensibility of Monsanto as of 2012, which is when Mr. Hardeman was diagnosed. Stekloff says: “It was the absolute consensus of the world” that glyphosate was not a carcinogen. Chhabria practically scoffs at the notion. The problem, he says, is that Monsanto was “crass,” obviously not caring if its product caused cancer, and at the same time undermined anyone else who suggested otherwise.
He goes on, “Where was the evidence that they cared about getting the truth on this? Stekloff unwisely suggests Dr. Donna Farmer’s testimony would fit that bill. Yes, that sound you hear is a belly flop by Uncle Brian from the high dive of his pool at his Fourth of July BBQ.
GG COMMENT: Can’t stop laughing at this imagery, AOJ. I’m putting this sentence into the GG Hall of Fame.
Chhabria says: “No emails saying, Gee we should take a look at this…might cause cancer? They put out all these bad emails, where were the contemporaneous emails that Monsanto cared about people? The jury has a right not to believe Monsanto when they say it was safe.” Yeah we do! Stekloff, off balance, falls back on the regulators. The EPA and all the others approved glyphosate! (That was literally the first argument I heard, one year ago, by a Monsanto attorney.)
“I never had this issue before.” Chhabria reveals this as we return to a long and confusing discussion in which he asks the parties how he should rule on the damages and possibility of a new trial. It is agreed that the Phase 1 verdict on the science is not at issue, just Phase 2, the punitive damages.
Jennifer takes the opportunity to disagree that the future compensatory damages should be reduced at all, implying that the entire discussion about how much is pointless. She tries a new angle now. She wants Chhabria to look at the past and future damages in terms of per annum. Looking at it that way, the past damages would be $750,000 per year, and the future damages would be only $133,000 per year which is substantially different. Chhabria concedes that it is a “fair point.” Jennifer is very smart to save this for last.
Jennifer and Chhabria get a few last jabs in before we adjourn. Chhabria says that the fact that EPA “said you can sell this stuff” is a “major factor” in punitive damages. Jennifer parries, saying a major factor is what Monsanto knew but didn’t tell customers. Then she literally lays a thick stack of papers on the bench (Chhabria, “Wow, this is heavy.”) which is a pharma case in which 25:1 punitive damages stood.
Chhabria changes the subject and asserts that Monsanto is less reprehensible than the tobacco companies because Monsanto “did not actively conceal evidence,” and that they are “reckless, but not criminal.” Yeah, I know, being less reprehensible than tobacco companies is a very low bar… Chhabria will issue his ruling “next week,” so that means another nervous week ahead.
Post Hearing Thoughts
Every step the legal process since this started (for me) seems momentous. Our verdict. Our JNOV hearing. Bolanos’ reversal. Both Hardeman verdicts, and the Pilliod verdict. The Pilliod JNOV is July 19. At some point relatively soon, there will be a hearing in the appeal and cross appeal in Lee Johnson’s case. And, the first St. Louis trial is coming up in August.
Meanwhile, what has Bayer/Monsanto been up to? Supposedly they are looking into unethical practices by Monsanto PR people. They pledged $5B to look for an alternative to glyphosate. That sorta maybe sounds good but then they hired a new law firm that, according to Bloomberg, is “known for fighting, not settling.”
Oh, I almost forgot to mention that Chhabria formally appointed Kenneth Feinberg as a mediator for settling the MDL cases today after both sides approved. And, some good news today: Austria banned glyphosate. Austria does not use that much of the weedkiller, but they are in Bayer’s backyard, so to speak.
One final note: I talked with Ed and and Mary Hardeman for a little bit outside the courthouse after the hearing. Mary asked me to pass on to all the jurors who have sat on these cases how thankful she is for our service.
© 2019 Robert Howard ALL RIGHTS RESERVED