The jury discovers Bayer Roundup's defense strategy: experts

NEW YORK (Reuters) – Bayer AG was hoping a new trial strategy centered on scientific evidence would allow jurors to smother the growing stream of US lawsuits over its weed killer Roundup to glyphosate base. the company's options, said some legal experts.

FILE PHOTO: Werner Baumann, CEO of Bayer AG, poses for a photo at the German Pharmaceutical Manufacturer's Annual Press Conference in Leverkusen, Germany, on February 27, 2019. REUTERS / Wolfgang Rattay / File Photo

Bayer shares fell by more than 12% on Wednesday after a unanimous jury of the San Francisco federal court ruled that Roundup was an "important factor" in Edwin Hardeman's non-Hodgkin's lymphoma, residing in California.

The jury's decision was a blow to Bayer after the Hardeman judge, at the request of the company, split the case, severely limiting the evidence that plaintiffs could submit in the first phase. . Tuesday's defeat on conditions deemed advantageous for Bayer makes the second phase even tougher and limits the reasons why the company could appeal the final verdict, the experts said.

"The fact that Bayer lost this lawsuit despite being organized in the most beneficial way for them is a huge setback," said Thomas Rohback, a Connecticut-based defense lawyer.

In a statement on Tuesday, Bayer said he was supportive of Roundup's safety and was confident that the evidence presented in the second phase of the trial would show that Monsanto's conduct was appropriate and that the company was not responsible for the cancer. from Hardeman.

The company, which bought Monsanto last year, declined Wednesday to comment.

Tuesday's conclusion did not deal with liability, which will be determined following the second phase of the trial that began Wednesday.

Bayer denies that glyphosate or Roundup causes cancer. The German company faces more than 11,200 lawsuits against the famous weed killer. Last August, following the first Roundup trial, a California state court jury handed down a $ 289 million verdict against the company.

Two weeks after this verdict, which had subsequently been reduced to $ 78 million and was appealed, Bayer's chief executive, Werner Baumann, assured analysts that the company had adopted a new legal strategy of focusing jurors on scientific evidence.

"Bayer and the joint litigation team are working to ensure that this extremely rich science gets all the attention it deserves," Baumann told a conference call.

Many at stake

Bayer, which acquired the $ 63 billion Roundup Monsanto manufacturer last year, is struggling with many issues. Although Bayer does not disclose Roundup sales figures, glyphosate is the most widely used weed killer in the world and Roundup is the leading brand.

Bayer's new strategy was to avoid the complainants' allegations that the company improperly influenced scientists, regulators and the public about Roundup's safety. Bayer denied having acted inappropriately and stated in public statements following the verdict of August that she thought the jury was inflamed by the allegations of professional misconduct.

Vince Chhabria, the San Francisco federal judge who oversaw the Hardeman case, concurred with the company's argument that this evidence was a "distraction" from the scientific question of whether glyphosate caused cancer. He agreed to split the trial in a January order.

If Bayer had won the first phase, there would have been no second phase dealing with the company's responsibility. Now that it has been lost, almost all previously excluded evidence can be presented to the jury.

The plaintiffs' lawyers struck Bayer with these allegations in their opening statements for Wednesday's second phase. Aimee Wagstaff, one of Hardeman's lawyers, said Monsanto had influenced Roundup's science through its "warm" relationship with regulators.

In the second phase, Bayer was able to convince the jury that, although they concluded that Roundup played an important role in Hardeman's cancer, the company was not responsible. Experts said it was unlikely.

"They could demonstrate how much care they took to develop Roundup, but it's a tough battle because scientific evidence is their main argument," said Alexandra Lahav, a law professor at the University of Connecticut.

A Bayer lawyer argued on Wednesday that Bayer's liability could not be incurred because the US Environmental Protection Agency, as well as other regulators around the world, had approved Roundup with no warning against cancer.

If the Hardeman trial had not been divided and if a final verdict had been pronounced against Bayer, the company could have appealed any compensation to the Court of Appeals of the 9th US Circuit by asserting that the jury had unduly influenced by inflammatory evidence, said Lori Jarvis. , a mass tort defense lawyer based in Virginia. This argument will now be difficult to make.

"It would not be surprising at all for Circuit 9 to maintain what the jury did in this case, particularly given Chhabria's considerable efforts to create a level playing field for Monsanto," Jarvis said.

Some lawyers stated that Bayer could always claim on appeal that the complainants' experts and their scientific evidence were insufficient and statistically invalid and that they should not have been admitted to trial. But they noted that the 9th Circuit, which oversees the San Francisco Federal Court, has generally been permissive in allowing expert testimony.

However, experts said it was probably too early to cancel Bayer's legal strategy, pointing out that future Roundup cases could lead to different results.

"This is a relatively early phase of this litigation as a whole and we simply need to see more lawsuits to understand Bayer's responsibility," said Adam Zimmerman, law professor at Los Angeles-based Loyola Law School. .

Report by Tina Bellon; Edited by Anthony Lin and Bill Berkrot

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