Thread by @doratki

I’m covering the next trial over claims tha Monsanto’s Roundup causes cancer, which begins this morning in Oakland. This case is brought by a couple in their 70s who both developed non-Hodgkin lymphoma. The courtroom is small and packed. Stay tuned...

This is the 3rd trial over claims that Monsanto's Roundup causes cancer. The 1st trial was held in state court in SF last summer, resulting in a ~$78M verdict. The 2nd was held in federal court in SF, culminating yesterday in an ~$80M verdict. Bayer said it plans to appeal both.

Here's a picture of plaintiffs Alva and Alberta Pilliod. (From their attorneys' press person.)

This courtroom has ~40 seats in the gallery for the public and they are all taken, mostly by attorneys it seems. People were starting to bring in chairs, but the clerk told them it's a fire hazard and once the gallery is full, anyone who doesn't have a seat needs to wait outside.

Needless to say, this is problematic for any journalists who haven't gotten here by now. There's no overflow room and the trial isn't being taped. Opening arguments are expected to start in about 25 minutes.

Michael Miller of The Miller Firm and Brent Wisner of @baumhedlund are co-lead counsel for the Pilliods. In pretrial hearings, Monsanto was represented by Kelly A. Evans of Evans Fears & Schuttert LLP and Kirby T. Griffis of Hollingsworth LLP.

I'm not sure at this point who will be representing Monsanto at trial. Hollingsworth LLP and @baumhedlund both were lead counsel in the first case over Monsanto's Roundup to go to trial in San Francisco last summer.

All electronics are banned from the courtroom. So no live tweets. Blame the judge.

Trial is taking a 15 minute break. We’re still in the middle of plaintiffs’ opening arguments. Gotta say a lot of journos are pretty peeved at the no electronics and lack of seating. As one journo told the clerk, it’s a public access issue.

One man who also watched the federal trial just said to me: “The seats are more comfortable here, but everything else is worse.”

Brent Wisner of @baumhedlund wrapped opening arguments on behalf of the Pilliods and trial is taking a lunch break until 1:40. Wisner covered a lot of ground, most of which was mentioned in the Hardeman trial.

Wisner brought up new details regarding Monsanto's alleged involvement in creating and promoting a cancer study that the EPA based its initial Roundup approval on in the early 1970s. The study was later invalidated in the 80s.

Wisner didn't say how much the Pilliods are asking for in damages yet, but he said he'll give the jury numbers during closings. He also repeatedly mentioned that Monsanto spent $1.6B on research & dev in 1 year, which is slightly higher than the $1.5B stat the Hardeman jury heard

Wisner told the jury in 2018 Monsanto made $3.7 billion in net sales of agricultural chemicals - this also was not a stat mentioned to the Hardeman jury.

Wisner also mentioned that in 2015, the California EPA determined that glyphosate is a known cause of cancer. This wasn't brought up during the Hardeman trial.

Tarek Ismail of Goldman Ismail Tomaselli Brennan & Baum LLP argued Monsanto's openings, which just wrapped. He spend a significant amount of listing off Alva and Alberta Pilliod's mutiple health issues, which he argued contributed to their cancers.

After openings, the judge sent the jury home for the day. They'll be back Tuesday morning. Dr. Christopher Portier, the plaintiffs' cancer expert, is expected to testify live.

Here's my recap from opening arguments in the Pilliods v. Monsanto yesterday. Saying it was different than openings in the federal trial would be an understatement. bit.ly/2YqJ1u6

Monsanto’s push to bifurcate the first federal trial over Roundup’s alleged link to cancer was a high-risk gamble that "may have blown up in their face," some legal pros say. Here's my analysis of the unusual split trial for your weekend reading pleasure: bit.ly/2UjFmPv

@nyulaw prof. Mark Geistfeld said the court should first determine whether Monsanto had a duty to disclose scientific uncertainty before taking on other liability issues.

“It seems inequitable for a manufacturer to rely on that very uncertainty to finagle out of liability."

I'm heading back to Oakland this morning to sit in on day 3 of the Pilliods v. Monsanto jury trial. I won't be live tweeting, because the judge barred electronics from the courtroom. But I'll try to update on courtroom happenings during the breaks.

I’m at the courthouse but Judge Winifred Smith isn’t letting any member of the public in the courtroom before the jury is seated. She sealed the courtroom for all motions being argued this a.m. A few folks waiting outside are annoyed. “This can’t be legal,” one man says.

Pilliod’s counsel came out and said they’re about to bring in the jury, so trial should be starting soon.

Plaintiffs’ counsel Brent Wisner just wrapped direct examination of cancer expert Christopher Portier. Trial is taking a 10 min break before cross.

Portier said it is “definitely more likely than not” that Monsanto’s Roundup weed killer causes non-Hodgkin lymphoma in humans at real world exposure levels.

Portier said he would like to see a couple more solid epidemiological studies to be 100% certain. But currently he’s about 90-95% certain, he said.

Trial is on a 45 min lunch break. Monsanto's counsel has spent a lot of time during Portier's cross-examination pointing out that multiple government agencies - including Canadian and Australian regulators - haven’t listed Roundup's active ingredient as a probable carcinogen.

Judge Chhabria had excluded this kind of testimony from the Hardeman v. Monsanto federal bellwether trial, because he considered it a sideshow to the science in dispute.

Monsanto's counsel got Portier to admit that he isn't a medical doctor or a pathologist and hasn't reviewed the medical records of plaintiffs Alva and Alberta Pilliod. Portier also said he charges plaintiffs' counsel $450 per hr for working on the case, which is pretty standard.

Portier testified that he wrote a letter to @EFSA_EU complaining that the agency didn't follow its own guidelines when it decided to keep Roundup's active ingredient, glyphosate, off of a list of chemicals that potentially pose cancer risks to humans.

Portier said he thought the European regulator ignored 650 non-Hodgkin lymphoma cancer cases in a controlled study and focused instead on the 92 NHL cases in the AHS study. Portier: “I more passionately believed at the time that @EFSA_EU should have done their job right.”

Monsanto's counsel noted that @EFSA_EU responded to Portier's letter, writing that his interpretation of the data was "misleading." Portier said Monsanto's attorney had taken EFSA's "misleading" quote out of context.

Trial is about to begin again, so I'm going offline again. The judge told the jury earlier that they're only staying until 2:30 today.

I’m outside Judge Winifred’s courtroom again for motions. The judge had closed it but Joshua Koltun has appeared on behalf of Courthouse News Service to object to sealing the courtroom.

The bailiff was called to remove the attorney from the courtroom, but after a few minutes the clerk opened the court to the public. No sign of the judge.

It is very unclear why the courtroom has been sealed multiple times. Koltun says the judge wasn’t allowed to seal it without holding a hearing.

I’m going offline again, but here is my coverage from yesterday, recapping Dr. Portier’s testimony. law360.com/articles/11461…

The judge ended up holding a short hearing on the plaintiff’s’ request for a temporary restraining order barring Monsanto from targeting ads to the Oakland courthouse.

The plaintiff’s counsel argued that Monsanto was trying to taint the jury pool by geofencing - or targeting ads to the courthouse so that jurors would see Pro-Monsanto, pop-up ads on their phones.

The judge issued a tentative ruling denying the request and said during the hearing that the request is essentially trying to restrain free speech and that’s serious.

The judge said she doesn’t know for sure Monsanto is geofencing and they’re asking her to assume that the company is trying to taint the jury pool. “I can’t do that,” she said.

The judge also noted that there are hundreds of other trials over Roundup that are expected to go to trial soon and the courts can’t block all Monsanto ads.

“The jurors are either going to listen to my instructions or they aren’t,” the judge said. But the plaintiff’s’ request to block Monsanto’s ads goes “too wide and far,” she said.

Plaintiffs’ counsel accepts the judge’s ruling but Brent Wisner notes that if he were to go up to a juror and say something about Roundup there would be a mistrial. He says that’s what Monsanto is essentially doing with geofencing.

The hearing was short and there was a break so I came out to tweet. The jury is back and trial is starting so going offline again, because the judge barred electronics.

My recap from the Pilliod v. Monsanto courtroom today: bit.ly/2uLg2nh

I'm back in Oakland covering Pilliod v. Monsanto this morning, but once again, no electronics are allowed, so no live tweets. @UCLA School of Public Health professor and epidemiologist Beate Ritz is on the stand. She was the first witness to testify in Hardeman v. Monsanto.

Plaintiffs' counsel mentioned that Ritz will testify on a recent glyphosate study published in Feb by UC Berkeley toxicologist Luoping Zhang. The study was published days before the Hardeman trial began, so I expect there'll be new info that wasn't mentioned in the federal trial.

I'm back in Pilliod v. Monsanto today. Here's my recap of the courtroom action from yesterday. The parties spent the day examining @UCLA professor Beate Ritz and cross-examination got pretty heated. bit.ly/2UoiUWg

Pathology expert, Dr. Dennis Weisenburger, is taking the stand this morning. He has a cold, so hopefully he won't lose his voice during questioning.

Yesterday, Dr. Dennis Weisenburger of @cityofhope testified during a California jury trial that linking a couple's cancer to Monsanto's popular Roundup weedkiller is "not a hard call." My recap: bit.ly/2VBId3U

I'm back covering Pilliod v. Monsanto this morning. Toxicologist William Sawyer is about to take the stand. He didn't testify in the Hardeman trial, but he did take the stand in the first Johnson trial last summer. Here's my #tbt to that testimony: bit.ly/2NOTg5i

Toxicologist William Sawyer repeatedly told jurors ystday that Monsanto made “dumb” assumptions when it tested Roundup's safety. He also warned attorneys to put on gloves before handling an open Roundup bottle, sparking objections from the Bayer AG unit. bit.ly/2Gk05uX

I'm back covering Pilliod v. Monsanto today. Here's my coverage from yesterday when a @Bayer exec repeatedly denied whether Monsanto toxicologists ghostwrote multiple academic cancer studies. bit.ly/2DggQ8g

Jurors heard that after @IARC concluded in 2015 that glyphosate is a probable carcinogen, Monsanto paid @Intertek consultants $27,400. The Intertek experts then contributed to a Sep 2016 paper in a peer-reviewed medical journal that contradicted IARC’s findings.

When the paper was published, it said Monsanto wasn’t involved, but the journal later issued an apology. The journal said it had not been given an adequate explanation for why @Intertek’s relationship with Monsanto wasn’t initially disclosed.

An expert testified that the @EPA approved Monsanto’s Roundup weedkiller in the 1970s based on fraudulent cancer studies implicated in the wake of the “largest scandal of pesticides in the U.S.” From the courtroom today: bit.ly/2ZlhSZZ

Bayer filed its opening brief yesterday in its appeal of the first jury verdict against the company over claims its Roundup weedkiller caused cancer. The jury had awarded Johnson $289 million, but a state judge later slashed it to $78 million.

Bayer also filed a motion asking the appeals court to consider letters the jurors sent to the judge after the trial urging her to keep intact their $289 million verdict against Monsanto.

1/2 Here are the letters from jurors who sat on the Johnson v. Monsanto trial last summer, urging the state judge to keep intact their $289 million verdict against Monsanto. Despite their pleas, the judge reduced the judgment to $78 million, which Bayer has appealed.

2/2 More letters from the jurors and a text message...

It looks like punitives will likely be on the table in the third trial over claims Monsanto's Roundup causes cancer. Here's my coverage of Pilliod v. Monsanto from yesterday in the courtroom: bit.ly/2GHvzdw

Monsanto called its first witness in Pilliod v. Monsanto today. My coverage from the courtroom: bit.ly/2L7H7Mm

Monsanto's exposure expert vouched for Roundup’s safety yesterday and rebutted toxicologist William Sawyer who warned attorneys to wear gloves when handling open Roundup bottles during trial: bit.ly/2V9nsQE

The expert defended Monsanto's absorption studies and said it doesn’t matter that researchers heated and then froze skin samples before using them to test how much glyphosate is absorbed through the skin, b/c the skin tested is not alive and doesn’t have blood vessels.

The plaintiffs' expert, toxicologist William Sawyer, had criticized Monsanto's researchers for "cooking and freezing" skin samples before using them to test how much glyphosate is absorbed through the skin. Sawyer said the practice had skewed the results.

I’m back in Oakland covering the third jury trial over claims that Roundup causes cancer. Monsanto is calling its last witness, Dr. Alexandra Levine of the @cityofhope. She testified in the Hardeman trial.

This morning, Judge Winifred Smith refused to let Monsanto mention the EPA’s interim ruling on glyphosate that came down last week. She said the ruling is “comments on comments” and it’s not a final ruling. She also said it would unfairly prejudice the plaintiffs.

Yesterday, Monsanto unsuccessfully asked the judge to declare a mistrial in Pilliod v. Monsanto after the couple's counsel mentioned the Hardeman trial while examining Monsanto's last witness, Dr. Alexandra Levine. Closings are Wednesday. Here's my recap: bit.ly/2vGjFvh

For those who are hoping to watch Pilliod v. Monsanto closings live, seats will be limited.

I’m outside the courthouse waiting to get in for Pilliod v Monsanto closings this morning. There’s already a line to get into the building, which doesn’t open for another 20 minutes. Closings won’t begin for another 1.25 hrs.

PR flack is at the front of the line, followed by a number of people who have been observing the trial. There are a few attorneys, a blogger and a lady making a documentary.

A juror in another trial is standing behind me in line. She’s very confused about the line, as are a few courthouse workers who are showing up for work this morning.

Everyone’s moved inside the courthouse and there’s a large group of people outside the courtroom. The clerk said the seats are first come, first serve. Once the seats are filled, everyone else will have to wait outside. (I believe the word for this is clusterfuck.)

Bayer’s press person complained to the clerk people are congregating around the doors of the courtroom and many of them are not attorneys. Meanwhile another line has formed. He asked if there could be some order. The clerk didn’t really give a response.

A juror who sat on the Johnson trial is in line.

Got my press pass.

I bet some people in this line would pay a pretty penny for this Post It with a P. And so, the glamorous life of this legal reporter continues...

They’re letting people in. Plaintiffs first, then defendants, then press, then the public - if there are any seats left.

The clerk is trying to direct members of the public in. “Did Bobby get a seat? Bobby got a seat,” she said referring to @RobertKennedyJr.

The juror from the Johnson trial got a seat. Closings in Pilliod v Monsanto will begin soon. Computers aren’t allowed so I don’t plan to live tweet during them.

People have been using their computers in the courtroom and the clerk seems to have backed down on enforcing the court's no electronics policy, so back to tweeting. The Pilliods' closings are about to wrap. Still waiting for the atty to name the damages amount they're seeking.

Damages are up. Alberta Pilliod wants $201k in past economic damages and $2.96 million in future economic damages, mostly to pay for cancer drugs. And $34 million in past and future non economic damages.

Meanwhile, Alva Pilliod wants $47k in past economic damages and no future economic damages. But he wants $18 million in past and future non-economic damages.

Alva and Alberta Pilliod’s attorney suggests the jury award $1 billion in punitive damages to punish Monsanto for failing to warn consumers about Roundup’s cancer risks.

He said that’s the amount that will make Monsanto executives notice and at least one exec even referred to glyphosate’s safety as “the billion-dollar question” in internal emails.

The Pilliods’ total ask is about $1.55 billion. With that, plaintiffs wrapped their closings and we’re on an hr lunch break before Monsanto is up.

Dewayne Johnson is here to watch closings btw. He’s the plaintiff in the first jury trial over claims Roundup causes cancer. A jury awarded him $289 million last summer, but the state judge slashed it to $78 million. Monsanto is fighting that judgment on appeal.

Correction: The Pilliods’ total ask is about $1.055 billion (ie. $1 billion in punitives and about $55 million in economic and non-economic damages).

We’re back. Monsanto wants a mistrial again. The attorney is arguing that the Pilliods’ counsel violated multiple motions in limine rulings by mentioning things in closings that were off limits.

The judge said she doesn’t think anything rises to the level of a mistrial and refuses Monsanto’s request to give the jury an instruction on labeling.

The judge said Monsanto attorneys can go ahead and begin closing arguments. (She forgot they hadn’t called the jury in the courtroom yet, so this got a big laugh from the gallery.) The judge apologized and blamed it on being pretty “dialed in” to the mistrial motion arguments.

The judge interrupted closings and asked the jury if they could stay until 4:45 p.m. today to finish closings. One juror raised his hand and said he couldn't stay b/c he needs to watch the Warriors game. The judge replied that the game doesn't start until 7:30, "so you're fine."

The jury will begin deliberations tomorrow morning. But here's excerpts of some drama I missed yesterday over @dhlovelife sitting in on the trial and Monsanto's counsel being accused of eavesdropping on jurors.

Today, the jury (and I) sat through more than 6 hours of closing arguments in Pilliod v. Monsanto. Here's my recap: bit.ly/2H8AV2F

I’m waiting outside the courtroom for a verdict in Pilliod v. Monsanto. Who thinks it’ll come down today?

Aside from the Pilliods' attorney, Brent Wisner, who is hanging out, I appear to be the only one outside the courtroom waiting for the verdict. Guess everyone slept in today.

The jury has a question. Standby...

The jury has multiple questions and they're requesting that the court read back a portion of Dr. Bello's testimony.

(Here's my coverage of Dr. Bello's testimony, who is a hematologist-oncologist hired by Monsanto: bit.ly/2L7H7Mm)

The jury has two other questions and the judge proposed answers to them, which the parties agreed to. But the judge didn't read those q's aloud, so dunno what the jury asked.

From what the attorneys are saying, it sounds like the jury specifically asked to hear back portions of Bello's cross examination in which she discusses the Agricultural Health Study and potentially Industrial Bio-Test Laboratories.

The judge decided that she won't let the attorneys tell the public, or press, what the jury questions are until after deliberations. She's concerned that jurors will overhear convos about the case in the courthouse hallways, which is fair given that the building is pretty small.

Another reporter complained to the attorneys that jury questions in federal court are on the record and filed publicly the same day juries ask them, even before jurors reach a verdict. This is true obv.

The judge said "good for them," but she said revealing the jury instructions is "fraught with danger," and she's going to exercise her discretion and keep them off the docket until after the close of jury deliberations.

The jury has another question - it sounds like they want to seem some exhibits that were shown but not admitted as evidence.

The jury asked for another testimony read back.

The jury is taking a lunch break. Back in an hour.

Just overheard that this morning the jury had asked to rehear portions of Dr. Beate Ritz's testimony on the Agricultural Health Study and whether they could consider certain portions of Dr. Charles Benbrook's testimony. Both were experts for the Pilliods.

The jury is deliberating until 4:30 today. Many people are waiting in the hallway, but there hasn't been a jury question since before lunch.

The jury has another question. Heading back into the courtroom.

The attorneys read the question and then looked at the verdict form. Just overheard someone say it was "a question regarding procedure."

Keeping these jury questions hidden from the public is making this all a really big guessing game.

Apparently the jury has a question about how many jurors need to agree on the answer to the first question on the verdict form. Based on the question, it sounds like they're nearing a verdict.

And the jury is gone for the day. No verdict. They have tomorrow off, so they'll be back here Monday deliberating.

I'm back in Oakland this morning waiting for the Pilliod v. Monsanto verdict to come down. It's the second day of deliberations and many people are pacing the hallways. The consensus seems to be that today's the day. What do you think?

Someone just pointed out to me that Bayer's stock has dropped 4% based on the news last week that the Pilliods are asking for a $1.055 billion verdict.

Btw - multibillion dollar verdicts aren't common, but they're not unprecedented. Appeals courts typically slash them, but not always. Last year, the Calif. high court kept intact a $1.15B verdict finding companies promoted the use of lead pigment in homes: bit.ly/2YqC6R2

There's a jury question - back in the courtroom.

The jury question has something to do with a damages calculation and the verdict form. Again, the judge won't read these questions aloud, so we're in the dark about what exactly they're asking.

The judge offered a suggestion, which the parties agreed to, and kicked everyone back out of the courtroom. Seems like we're getting close.

These top Google suggestions made me lol.

1/4 While we wait, here's the verdict forms for Alva and Alberta Pilliod that the jury is currently working on.

2/4 More of Alberta's verdict form...

3/4 Here's the end of Alberta's verdict form followed by Alva's verdict form, which is basically identical except for the economic damages ask...

4/4 And here's the rest of Alva's verdict form...

The clerk said the jurors are taking a break for 45 minutes.

We've got a verdict.

The parties are heading into the courtroom. Both sides are here, so this should be quick.

The jury is in the courtroom, and the judge is reviewing their verdict.

1. Did Roundup fail to perform as safely as an ordinary consumer would have expected when used or misused in an intended or reasonably foreseeable way?

YES

2. Was the design of Roundup a substantial factor in causing harm to Alberta Pilliod?

YES

The jury found Monsanto liable for a negligence, design defect, failure to warn claim and negligent failure to warn claim and damages for Alberta:
Past economic loss: $201,166.76
Future economic loss: $2,957,710.
Past noneconomic loss: $8 million
Future noneconomic loss: $26M

The jury awarded the $1 BILLION against Monsanto in punitive damages.

The jury found Monsanto liable for all four claims brought by Alva Pilliod and awarded in damages:
Past economic loss: $47,296.01
Past noneconomic loss: $8 million
Future noneconomic loss: $10 million

The jury hit Monsanto with another $1 BILLION in punitive damages for Alva Pilliod. The total is a $2.055 billion verdict.

The jury is being polled right now. So far, it looks like the verdict was mostly unanimous. One juror didn't think Monsanto's negligence was a substantial factor in causing harm to Alberta Pilliod.

A few jurors didn't agree on the amount of punitive damages they ended up awarding.

The $2.055 billion verdict was a win across the board for the plaintiffs. It's the third case to go to trial out of about 13,400 pending that allege Roundup causes cancer. Here's my full story: bit.ly/2YrbAGW

Just to clarify - the jury was unanimous in their finding that Monsanto engaged in conduct with "malice, oppression or fraud" to warrant punitive damages, but they disagreed on how much should be awarded.

The jury just filed out. Some wanted to leave without being approached by the press. Some of them shook the Pilliods' hands and Alva and Alberta Pilliod both repeated "thank you, thank you, thank you..." as they walked by.

Two of the jurors are taking questions. They’re surrounded by attorneys and reporters. They said Monsanto’s expert Dr. Alexandra Levine was credentialed but not an expert on pesticides.

Monsanto’s counsel asked a juror what they wanted to hear from Monsanto.

The juror: “That roundup is completely safe. I wanted you to get up there and drink it basically.”

One of the jurors said he thought the punitive damages amount was too high. The other declined to comment on how they reached the $2 billion punitive damages amount.

The jurors said the plaintiffs’ experts Dr. Dennis Weisenburger and Dr. Christopher Portier seemed more reliable than Monsanto’s Dr. Levine, because they studied pesticides and cancer.

I’m outside the courthouse and a group of the jurors are all walking together, which is nice to see.

One of the jurors said he thought Alva Pilliod was at a higher risk, because he had health problems and Monsanto should have warned him about Roundup’s potential risks more than anyone. With that, the juries gone.

Bayer released a statement saying it's disappointed with the jury's decision and it's going to appeal the verdict.

Here's the damages breakdown on the jury's verdict form.

Will the appeals court keep intact Monday's $2.055 billion verdict against Monsanto? Probably not, according to @alahav. My latest: bit.ly/2JGLZ92

While we wait wait for this hearing on blocking the border wall to start, check out my story from yesterday. Ninth Circuit judges criticized the EPA's process for approving @dowagrosciences's glyphosate weedkiller Enlist Duo: bit.ly/2Ehf8UR

The judges said the EPA's voluntary offer to reconsider its 2014 approval of Dow Agroscience's weedkiller Enlist Duo - which is advertised as more effective than Roundup - has resulted in it skirting legal challenges altogether.

I'm in Judge Chhabria's courtroom this morning. He's expected to set the date for the next federal trial over claims Monsanto's Roundup causes cancer. The judge will also hear arguments in more than a dozen motions to remand Roundup lawsuits to state court.

Ed Hardeman, who won an $80M verdict against Monsanto in March, is in the courtroom with his wife and his attorney @JAMooreKentucky. Brent Wisner, of @baumhedlund is also here. Wisner represented Dewayne Johnson and Alva and Alberta Pilliod in their respective $78M and $2B wins.

Judge Chhabria is on the bench. He asked for the attorneys to state their appearances, and it's clear there are more plaintiffs' attorneys than Monsanto's counsel. "Outnumbered again. Monsanto is always outnumbered," the judge said.

The judge notes that today's hearing includes a motion to remand 108 cases over claims Roundup causes cancer to Missouri state court.

Judge Chhabria approved Monsanto's request to post a bond for over $100 million pending appeal of the $80 million Hardeman verdict. The judge said the plaintiffs seem to suggest that amount is too low, but he disagrees.

Judge Chhabria says his tentative view is that 108 Missouri cases alleging Roundup causes cancer were properly transferred to his court, which Monsanto is fighting. Monsanto says they shouldn't have been transferred and they should be sent to Missouri federal court.

Judge Chhabria and Monsanto's atty are discussing whether Missouri law allows multiple plaintiffs to file personal injury suits against a company for a single trial. The judge said it seems strange to presume that all 108 plaintiffs expected their case would be held in one trial.

Judge Chhabria said it makes sense for 108 plaintiffs to file a single complaint to avoid admin fees and motions to relate, but he says it seems preposterous to assume it would be one trial: "Why would anyone want a 108 plaintiff trial? I wouldn’t want that for my worst enemy."

Plaintiff's counsel argues that the 108 plaintiff complaint didn't indicate they wanted to join their claims to be decided in a single trial and the judge shouldn't presume it. He adds that typically such cases are tried in groups of 10 or so.

Monsanto's counsel argues that the complaint asks for "a jury trial" and therefore means the 108 plaintiffs are seeking a single trial. But the judge replies that the language in the complaint is just a boilerplate, "cut-and-paste job."

The judge is going to think more on the 108 Missouri cases. He's turned to the California cases - there are 11 cases, which each include 8 to 10 plaintiffs, according to Monsanto's counsel. They all have pending motions to remand to state court.

The judge says they don’t know what new complaints are going to look like if cases are severed. For example, the $ in dispute may not meet the threshold to be in federal court, although it's unlikely. "We know that the amount in controversy in these cases is a billion dollars."

Judge Chhabria said that if Cali. cases pending in state court that Judge Winifred Smith are severed from a JPCC, the motion to remand clock is restarted. But Brent Wisner of @baumhedlund disagrees and argues it can only be determined case-by-case basis.

Brent Wisner says Judge Smith severed cases in the JPCC to manage her docket and not to give Monsanto another chance to remand cases to federal court that are already in the middle of discovery. "I don’t think her intention was to restart the clock on these cases," he said."

The parties are arguing over how Judge Winifred Smith is overseeing 400-500 cases pending in state court over claims Roundup causes cancer. Wisner says she's been teeing them up for trying suits in groups of ~10, while Monsanto's counsel argued there's no indication of that.

FYI - Judge Smith has been planning to try cases over claims Bayer's Essure birth control devices harmed women in groups. About 13,000 cases are pending before her in that JPCC litigation and the first trial is set for January. My latest coverage: bit.ly/2WeMMon

The hearing is breaking for lunch until 1 p.m. Brb.

One observation that sort of shocks me is that Bayer has different teams of attorneys working on these trials in different jurisdictions and they don't seem to overlap.

Monsanto's atty argued that Judge Smith tentatively ruled that the Pilliods must have separate trials and only later changed her mind. But Judge Smith didn't issue the tentative ruling, another judge did. It was v. clear that Judge Smith wanted one trial. bit.ly/2u6QjVZ

We're back from lunch, and the judge is still questioning the parties on whether Monsanto has the right to remove to federal court cases in California state court that have been severed from other lawsuits.

The judge seems to think severed cases can't be removed from state court until the new complaints have been filed, but Monsanto wants to be able to remove them before the new complaints are filed.

Bayer's atty says they want to hold trials in the MDL involving plaintiffs outside Cali so they have more "data points." The judge is skeptical & says Cali is diverse: "To the extent you think may be able to win in a jurisdiction other than the Bay Area" you will be sent there.

The judge asked Monsanto's attorney what state law does he want to be tried next. The attorney replies Texas or Michigan "on the law," or a state where Roundup is used the most. The judge replies that a trial in Missouri is expected to start this summer.

Aimee Wagstaff asks Judge Chhabria for a chance to pick the other state law for the next trials. Judge Chhabria: "I think we’re going to let Monsanto pick a state. Things have been going pretty well for you. Let monsanto have a chance."

Judge Chhabria noted that there are 1,300 cases alleging Roundup causes cancer in the MDL before him. Apparently only 16 were filed directly in California court. As of January, there were only about 700 before Judge Chhabria.

Judge Chhabria says he's going to lift the discovery stay for the 16 California cases and any other cases governed under California law. The judge: "You guys should start cranking on those cases and get them ready for summary judgment and Daubert."

Monsanto's counsel asked the judge to include a note recommending bifurcation to judges if MDL cases are remanded. The judge said he thinks "bifurcation worked well," but he doesn't know if it's appropriate to include a "memo" to those judges.

Judge Chhabria set up a first waive of trials involving 16 California cases and 5 cases under a state law of Monsanto's choice. He asked the parties to each pick another state law for the second waive of trials.

Judge Chhabria also wants the plaintiffs to sever the complaints that were filed in the MDL with multiple plaintiffs. He says they can be "some short-form complaint," but he wants all of the cases separate.

Judge Chhabria tentatively set a Feb. 10, 2020 trial date for the next trial in the MDL over federal claims Monsanto's Roundup causes cancer. The plaintiff's counsel wants an earlier date, but the judge said it's more important to get the waive of Cali cases "trial ready."

The judge took the arguments on the remand motions under submission and with that, the hearing wrapped.

Today Judge Chhabria tapped experienced MDL mediator Kenneth Feinberg to try to broker a deal between plaintiffs and Monsanto. bit.ly/2M4lEVc