Oct. 12, 2018
The lawyer most responsible for winning a $289 million verdict against Bayer AG may end up wiping it out.
Brent Wisner was the lead trial attorney who in August convinced a jury that Monsanto Co.'s Roundup weed killer caused his client's cancer. His compelling arguments and marshaling of evidence resulted in a blockbuster verdict that has spooked investors looking ahead to thousands of similar lawsuits across the U.S. pending against Monsanto, which Bayer acquired in June.
But Wisner's closing arguments at trial irked the judge handling the case so profoundly that she's considering tossing the verdict and ordering a new trial. The lawyer told jurors that Monsanto executives in a company board room were "waiting for the phone to ring" and that "behind them is a bunch of champagne on ice," according to a court filing. He said that "if the damages number isn't significant enough, champagne corks will pop."
At a hearing Wednesday, San Francisco Judge Suzanne Ramos Bolanos cited a number of reasons why she's inclined to set aside or dramatically cut the verdict. But she singled out the champagne comment as she questioned whether Wisner's impassioned rhetoric crossed a line. Wisner also told jurors their decision could "change the world" and they could become a "part of history." Bolanos said the comments may prove "sufficiently prejudicial" to warrant a new trial.
The judge reminded Wisner, who joined the hearing by telephone, that she took him aside during the trial's closing arguments and warned him about his champagne comments. "In front of the jury you disregarded my order, and again repeated the same objectionable statement," she said.
Bolanos was incredulous when Wisner seemed to suggest that he wasn't aware of the objection to the champagne reference in particular.
Robin McCall, a spokeswoman for Wisner's law firm, said the organization declined to comment. Michael Baum, one of Wisner's partners, said Bolanos's concerns "aren't issues" because under the law the jury is "entitled to the deference they are afforded."
Last year, a federal judge in San Francisco handling hundreds of Roundup lawsuits against Monsanto threatened to remove Wisner or his firm from the massive litigation because the lawyer made headlines when he publicly released company emails that his firm said demonstrated manipulation of public opinion about Roundup's health risks.
Wisner "was not focused on being a lawyer, he was focused on being a PR man," U.S. District Judge Vince Chhabria said at a hearing. "He was more focused in getting these documents released, and getting them released fast, than he was in being a lawyer."
Monsanto's lawyer, George Lombardi, told Bolanos the champagne comment "was thumbing his nose" at the judge. "Think of the image that creates," he said. "It was objected to, it was not factual. It is punishing Monsanto for having a board member, it's punishing Monsanto for being a big company."
By the end of the hearing Bolanos said she was considering options including setting aside the punitive damages of $250 million, whittling down the compensatory damages from $33 million to about $9 million, and ordering a new trial. American depositary shares of Leverkusen, Germany-based Bayer jumped 6.3 percent Wednesday to close at $79.50 in New York.
The judge is examining the company's arguments that there no basis for the jury to conclude that Monsanto is liable for plaintiff Lee Johnson's non-Hodgkin lymphoma based on his exposure to the key ingredient in Roundup, glyphosate.
Lombardi said the medical evidence at trial was "legally insufficient" to prove exposure to Roundup caused Johnson's disease. He argued that the diagnosis provided by the plaintiff's medical expert was "extraordinarily simplistic and deceptive."
Michael Miller, a lawyer for Johnson, told Bolanos that there's "not a scintilla of evidence" that the "well-educated, very attentive, note-taking" jury didn't follow the judge's instructions.
While Miller acknowledged that the plaintiff might have lost if the case was decided by Bolanos, he said there was no error that justifies "taking away a verdict of a dying man."
The case is Dewayne Johnson v. Monsanto Co., CGC-16-550128, California Superior Court, County of San Francisco (San Francisco).