PHILADELPHIA – The manufacturers of weedkiller Roundup are facing a second loss at trial in Philadelphia to the tune of $3.5 million, just weeks after another local jury handed down a $175 million verdict award to plaintiffs in the first case in a series of trials.
Plaintiff Kelly Jo Martel initially filed suit in the Philadelphia County Court of Common Pleas in September 2021 versus Nouryon Chemicals, LLC, Nouryon Surface Chemistry, LLC, Nouryon, USA, LLC and Monsanto Company.
Bayer AG, which acquired Monsanto in 2018, was not named as a party to the suit – whereas this was the first case where Nouryon was named as a defendant.
Counsel for Martel contended that Nouryon, a Radnor-based company, created a chemical compound which enhanced the carcinogenic capacity of Roundup and allegedly caused Martel to develop non-Hodgkin lymphoma.
Martel claimed the manufacturers of Roundup, which she said she used for about 15 years, concealed evidence that the product and its active component, glyphosate, was carcinogenic.
A Philadelphia jury agreed on Tuesday, awarding Martel $3.5 million – $500,000 of which were compensatory damages against both Monsanto and Nouryon, and $3 million in punitive damages against Monsanto alone.
Furthermore, the jury found Monsanto 92.5% liable for Martel’s injuries and Nouryon only 7.5% liable.
The defense had argued many cases of non-Hodgkin lymphoma are caused by other mutations, as opposed to environmental factors. But in that event, the defense also asserted that Martel’s habit as a smoker could have been just such an environmental factor that led to her development of cancer.
On Dec. 1, defense counsel had filed a motion for a mistrial, believing Philadelphia County Court of Common Pleas Judge Genece Brinkley conducted “improper questioning of trial witnesses.”
The motion outlined instances where the defense felt Brinkley “inappropriately commented on the answers of trial witnesses in front of the jury” and “initiated [her] own questioning of numerous trial witnesses in a manner that illustrates a bias in favor of the plaintiff and [was] highly prejudicial to the defendants.”
In one instance, the motion pointed to several moments where Brinkley appeared to show exasperation at and interrupted defense counsel’s cross-examination, which, the motion argued, constituted “an improper intrusion…and hindered the defendants’ ability to put on a defense of their choosing – a key component of due process.”
“The Court’s examination of trial witnesses in this case has been unquestionably biased towards the plaintiff and have been significantly prejudicial to defendants. The Court’s questioning of Dr. Allen, Dr. Levy, plaintiff and Dr. MacLean were far from ‘neutral’ and unbiased; rather, the questions took on an advocacy role and clearly demonstrated favoritism for plaintiff,” the mistrial motion stated, in part.
“The Court’s repeated and disproportionate rebuke of Dr. Farmer likewise demonstrated bias in favor of plaintiff and against defendants by suggesting that she was not ‘working hard to answer the question[s].’ The Court’s heavily biased questioning and remarks in this case amount to reversible error. No curative instruction could cure the unfair prejudice stemming from these improper questions and remarks. The Court must grant a mistrial.”
The defense also sought to secure a directed verdict, having argued in its motion that Martel had “failed to offer sufficient evidence that her Roundup use actually caused her non-Hodgkin lymphoma.”
“Plaintiff’s specific cause expert, Dr. Levy, testified that he could not determine whether Ms. Martel would not have gotten cancer even without being exposed to Roundup – this alone is fatal to all of plaintiff’s claims. Furthermore, the facts that Dr. Levy used for his exposure-days methodology were completely contradicted by plaintiff’s own trial testimony. Without reliable expert testimony on specific causation, plaintiff is unable to establish a crucial element of her claims,” per the motion.
Bayer’s Head of External Relations, Chris Loder, issued a statement in response to the verdict.
“We disagree with the jury’s divided verdict and the modest damages award that conflicts with the overwhelming weight of scientific evidence and worldwide regulatory and scientific assessments, and believe that we have strong arguments on appeal to get this verdict overturned,” Loder said.
“We have a winning record in the Roundup litigation – having won nine of the last 14 cases at trial – and have resolved the majority of claims filed in this litigation. The company remains committed to taking cases to trial, as our track record demonstrates that we win when plaintiffs’ attorneys and their experts are not allowed to misrepresent the worldwide regulatory and scientific assessments that continue to support the products’ safety.”
Monsanto had won nine straight trials over use of its Roundup product – but it has now lost five consecutive trials in a six-week period, across a variety of jurisdictions nationwide.
Monsanto’s streak was first snapped on Oct. 20 by a $1.25 million jury verdict for plaintiff John Durnell in a St. Louis, Missouri courtroom, while another similar case in San Diego was decided in favor of plaintiff Mike Dennis soon afterwards, for $332 million.
Another in Jefferson City, Missouri saw an astonishing $1.56 billion awarded to plaintiffs James Draeger, Valorie Gunther and Dan Anderson on Nov. 17.
The first Roundup case in Philadelphia saw plaintiffs Ernest and Carmela Caranci be awarded $175 million in damages at the end of October – though the damages award is being appealed, after defense counsel believed the presiding judge gave “highly coercive” instructions to the jury in that case.
According to both Monsanto and Bayer, Roundup and its main component glyphosate are safe for use and are not linked to cancer.
While Bayer settled the vast majority of Roundup-based lawsuit against it in 2020 for $10.9 billion, almost 40,000 such cases against the company remain to be decided.
A third Roundup case in Philadelphia will go to trial in January.
Philadelphia County Court of Common Pleas case 210900084
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com