Related: Monsanto Lawsuit
The California federal judge admonished both sides in the contentious hearing August 24, 2017. Monsanto lawyers alleged that an opposing attorney improperly leaked confidential documents in the multidistrict litigation over Roundup weedkiller’s alleged propensity to cause cancer.
Judge Chhabria: “Plenty of Blame to Go Around”
U.S. District Judge Vince Chhabria said there was “plenty of blame to go around” over the legal dust up. It all stemmed from a July 2017 meeting during which Monsanto lawyers argued that 86 disputed documents were irrelevant to the litigation and should remain under seal. Plaintiffs’ attorney R. Brent Wisner then waited 30 days for Monsanto to file a declaration to defend its protective order. Law360 reported that Monsanto wrote no such declaration. Therefore, Mr. Wisner assumed Monsanto had decided not to pursue its argument that the documents couldn’t be unsealed, because the judge had threatened to sanction Monsanto if it continued to make what he called “frivolous filings.”
Judge Admonishes Both Sides’ Lawyers
Judge Chhabria noted Thursday that the confusion came from ambiguity in his protective order. Nevertheless, he said he was tempted to dismiss Mr. Wisner and possibly his law firm from the case for leaking documents which the judge said they knew involved a confidentiality dispute. The judge said the plaintiffs’ knowledge of the confusion was made clear in a motion to clarify the order, filed as the evidence was being posted online. But the judge also admonished Monsanto lawyers for claiming the documents’ confidentiality couldn’t be questioned because they weren’t relevant to the litigation. Judge Chhabria called that Monsanto contention “almost laughable.”
The judge said: “Mr. Wisner, along with other members of the leadership group, decided to ignore that this was a live dispute. It seems obvious that these documents are relevant to the general causation phase of this litigation. It seems clear the position Monsanto was taking in the meet and confer was unreasonable. … The great irony here is had you teed this up before me in a joint discovery letter or a motion, I would have no doubt ruled in your favor and I would probably have had Monsanto pay the litigation costs.”
Glyphosate causes Cancer, says Monsanto Lawsuit
The multidistrict litigation consolidated in California alleges glyphosate – in Monsanto’s Roundup weedkiller – causes cancer. Monsanto disputes that allegation. Monsanto company executives and attorneys claim that decades of studies have found no link between glyphosate and cancer.
Roundup / Glyphosate Cancer Link
On the plaintiff’s side, the World Health Organization and several studies dispute Monsanto’s claims that Roundup is safe. Several studies have found Roundup, of which glyphosate is only the main listed ingredient, to be a “probable carcinogen,” or a likely one.
The August 24 hearing on a recent order to show cause stems from a March 2017 pretrial order from Judge Chhabria. The judge said then that he would not consider the plaintiffs’ challenges to the confidentiality of documents proffered by Monsanto, unless they were proven to be relevant to the case. The judge also said that he would sanction Monsanto for unreasonable attempts to get or maintain confidentiality.
Mr. Wisner was accused of posting the documents on his firm’s website and of leaking them to The New York Times. The Times reported that internal emails suggest Monsanto may have influenced research on its Roundup weedkiller product through EPA employees, and may have manipulated public opinion in the process.
Mr. Wisner brought a legal ethics expert, U.C. Hastings Professor Richard Zitrin, to represent him in Thursday’s hearings. Mr. Zitrin said the documents were released in good faith, because Monsanto had failed to responded within the 30 days of Mr. Wisner’s challenging the protective order. Mr. Zitrin said it was not Mr. Wisner’s job to warn Monsanto that its time was running out.
Judge: Lawyer became PR Man
The judge took exception to that Mr. Zitrin’s argument. He said, “In light of the fact there was a live dispute, it absolutely was [Mr. Wisner’s] obligation. The problem is he was not focused on being a lawyer. He was more interested in being a PR man. … You’re saying he didn’t file a motion because Monsanto didn’t file a declaration, but he said to Monsanto, ‘We’re going to decide whether to file a joint letter or we’re going to file a motion.’ That was recognition.’”
When Mr. Wisner and Mr. Zitrin then began to debate about who should speak next , the judge told Mr. Zitrin to sit down or he would call security.
Judge: Monsanto Argument “almost laughable”
Judge Chhabria also scorned Monsanto’s arguments concerning confidentiality. The documents at issue include internal communications in which employees at the company claim to have “ghostwritten” review articles that upheld findings that glyphosate does not cause lymphoma.
“How could you have taken this position that these documents are not relevant to the general causation of this case?” the judge asked Monsanto attorney Joe Hollingsworth.
Mr. Hollingsworth said they weren’t original scientific reports, but “literary surveys” that his client hadn’t cited as evidence in the case. “Those aren’t original reports by epidemiologists,” he said. “What none of those documents refer to is any original science that’s going to have to form the basis for an expert’s opinion. They’re irrelevant to Daubert inquiry.”
The judge said they contributed to Monsanto’s assertion that the scientific consensus was that there was no link between glyphosate and cancer, but a plaintiffs’ attorney pointed to a motion to dismiss that had cited a few of the articles Monsanto allegedly helped write.
The judge did not indicate how he would rule on the matter.
Monsanto Roundup Fight Erupts in Calif. Court
The MDL is In re: Roundup Products Liability Litigation, case number 3:16-md-02741, in the U.S. District Court for the Northern District of California.