San Francisco | The lawyer most responsible for winning a $US289 million ($406 million) verdict against Bayer may end up wiping it out.

Brent Wisner was the lead trial attorney who in August convinced a jury that Monsanto's Roundup weed killer caused his client's cancer.

His compelling arguments and marshalling of evidence resulted in a blockbuster verdict that has spooked investors looking ahead to thousands of similar lawsuits across the US 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 on 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 organisation 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.

'Focused on being a PR man'
Wisner "was not focused on being a lawyer, he was focused on being a PR man", US 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 $US250 million, whittling down the compensatory damages from $US33 million to about $US9 million, and ordering a new trial.

American depositary shares of Leverkusen, Germany-based Bayer jumped 6.3 per cent on Wednesday to close at $US79.50 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).


LINK:https://www.afr.com/news/world/north-america/lawyers-champagne-remark-about-bayer-may-cost-him-us289-million-monsanto-win-20181011-h16jr9

Been seeing the ads on TV about class action suit on Roundup.
Same law firms involved or another one jumping in the bandwagon?

quote:

Originally posted by ZSMICHAEL:
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".

I'm sure Mr. Wisner, and his partners, also planned to celebrate a large jury award, and probably did celebrate their probable $96M+ payday, prior to the judge hinting at overturning the verdict.

quote:

I'm sure Mr. Wisner, and his partners, also planned to celebrate a large jury award, and probably did celebrate their probable $96M+ payday, prior to the judge hinting at overturning the verdict.

Nah. They were gonna donate their award to charity. I have to admit the theatrics and hyperbole of these folks is entertaining, but I think there have to be limits on what is permitted.

quote:

Originally posted by ZSMICHAEL:

quote:

I'm sure Mr. Wisner, and his partners, also planned to celebrate a large jury award, and probably did celebrate their probable $96M+ payday, prior to the judge hinting at overturning the verdict.

Nah. They were gonna donate their award to charity. I have to admit the theatrics and hyperbole of these folks is entertaining, but I think there have to be limits on what is permitted.

I do not believe in limits on jury awards. What I do want to see though, is if an attorney takes a plaintiffs case on contingency based on a portion of the settlement or jury award (33.33% to 40%), then the plaintiff's attorney should be liable for that same percentage of the defendant's legal costs should the plaintiff lose.

The cost to file is low, and the odds of a settlement payout (based on a rational cost benefit analysis by defendants) are high, so plaintiff's attorneys have potential for huge profit, with almost no risk, when taking on contingency cases. However, the defendants (and their attorneys) know most plaintiffs cannot realistically afford to pay any of the legal defendant's legal costs, should the defendant prevail.

If they were required to have real "skin in the game" plaintiff's attorneys would be more realistic in what cases they would file. It would end the nonsense where they file, just hoping for a quick settlement, even if they believe the plaintiff's case has little to no merit.

Plaintiff's attorneys love deny that this goes on, and claim the poor and down trodden would be hurt by such reform. However, it's a much better solution than arbitrary caps on jury awards, and the real reason Plaintiff's attorneys hate it, is it ruins their low risk/high reward system.

quote:

I do not believe in limits on jury awards. What I do want to see though, is if an attorney takes a plaintiffs case on contingency based on a portion of the settlement or jury award (33.33% to 40%), then the plaintiff's attorney should be liable for that same percentage of the defendant's legal costs should the plaintiff lose

^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
We are in agreement. I was not clear in my remarks. I meant limits on the theatrics and hyperbole that is intended to trump logic and scientific analysis.

quote:

Originally posted by ZSMICHAEL:

quote:

I do not believe in limits on jury awards. What I do want to see though, is if an attorney takes a plaintiffs case on contingency based on a portion of the settlement or jury award (33.33% to 40%), then the plaintiff's attorney should be liable for that same percentage of the defendant's legal costs should the plaintiff lose

^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
We are in agreement. I was not clear in my remarks. I meant limits on the theatrics and hyperbole that is intended to trump logic and scientific analysis.

Copy, sorry for the misunderstanding.

Sounds to me like Monsanto/Bayer has already written a large check.

AN evil bunch of folks...

quote:

Originally posted by DMF:

The cost to file is low, and the odds of a settlement payout (based on a rational cost benefit analysis by defendants) are high, so plaintiff's attorneys have potential for huge profit, with almost no risk , when taking on contingency cases. However, the defendants (and their attorneys) know most plaintiffs cannot realistically afford to pay any of the legal defendant's legal costs, should the defendant prevail.

Nothing beats knowing what you are talking about, and here you reveal what you don't know.

There is huge risk for plaintiff's lawyers. (And I am much more defense oriented in my civil litigation practice. I have no dog in this fight.) They may win one case in four, or one in ten. On a case like this Round-up case, the costs fronted by the lawyer are staggering - experts, dozens of depos, hours and hours of associate attorney and paralegal time. It is hard to guess, but costs in this case were in the many hundreds of thousands of dollars at least. If that seems small in relation to the verdict, remember that only one in a thousand cases comes back with a verdict like this one.

And let me ask you this - if the defendant's attorney's lose, should they be responsible for part of the verdict, or be responsible for attorney's fees incurred by the plaintiff? After all, they chose to take on a clearly unmeritorious case and should have advised their client to settle. Should they bear at least part of that burden?

The insurance companies and the AMA have really conducted a model campaign to convince people that litigation is out of control. In my state, the med-mal limits are so extreme, that people genuinely harmed by doctors can't get lawyers in many cases.

If they had such a solid case, why the appeal to theatrics?

The judge had warned him about that comment to the jury.

quote:

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.

I guess he figured nobody is listening to her anyway.

quote:

Originally posted by JALLEN:
If they had such a solid case, why the appeal to theatrics?

The judge had warned him about that comment to the jury.

quote:

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.

I guess he figured nobody is listening to her anyway.

I think that argument about champagne is over the line. It was presented as if it were the real scenario (that Bayer had champagne on ice). While you might think that the jury should have understood it as an imaginary scenario to make a point, jury argument is meant to be more-or-less confined to what the evidence showed and reasonable inferences from it. This was more than that.

And they were warned by the court about that specific image - the waiting champagne.

This could go either way, but I think it crossed a line.

As far as I'm concerned any and all punitive awards should go to the government and none to the "victim" or their attorney.

quote:

Originally posted by jhe888:

There is huge risk for plaintiff's lawyers. (And I am much more defense oriented in my civil litigation practice. I have no dog in this fight.) They may win one case in four, or one in ten. On a case like this Round-up case, the costs fronted by the lawyer are staggering - experts, dozens of depos, hours and hours of associate attorney and paralegal time. It is hard to guess, but costs in this case were in the many hundreds of thousands of dollars at least. If that seems small in relation to the verdict, remember that only one in a thousand cases comes back with a verdict like this one.

And let me ask you this - if the defendant's attorney's lose, should they be responsible for part of the verdict, or be responsible for attorney's fees incurred by the plaintiff? After all, they chose to take on a clearly unmeritorious case and should have advised their client to settle. Should they bear at least part of that burden?

Sorry- but you've misrepresented the problem here. Attorneys have real risks when they work on contingency- I agree. However- and you know this as an attorney in TX not far from the eastern district- there are a lot of lawsuits settled because the cost of settlement is cheaper than cost of fighting the suit. Lawyers setup the system and the system ensures the lawyers get paid; I'm a pragmatist- I get it. The vast majority of lawyers are good people doing good work. Let's not pretend that there aren't people to take advantage of how the system is setup to essentially blackmail defendants due to the high cost of defending against BS claims.

I would support a looser pays standard- yes including when the plaintiff wins a case, the defendant should be responsible for the plaintiff's attorneys fees. I'm fine with that standard and I would support it.

The real issue is quite simple, but the solution is quite complex. The current system permits lawyers to take cases on contingency which allows all plaintiffs to be represented forcing a significant cost of defendants. In a looser pays scenario, the bar is raised for lawyers filing suit as it significantly increases the "cost" an a cost-benefit analysis associated with a lawsuit. That higher bar would result in fewer legal cases being filed reducing the societal spend on lawyers. It's really a question of balance. The current system prioritizes spurious lawsuits over the cost to defend against those lawsuits.

quote:

Originally posted by jhe888:

quote:

Originally posted by JALLEN:
If they had such a solid case, why the appeal to theatrics?

The judge had warned him about that comment to the jury.

quote:

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.

I guess he figured nobody is listening to her anyway.

I think that argument about champagne is over the line. It was presented as if it were the real scenario (that Bayer had champagne on ice). While you might think that the jury should have understood it as an imaginary scenario to make a point, jury argument is meant to be more-or-less confined to what the evidence showed and reasonable inferences from it. This was more than that.

And they were warned by the court about that specific image - the waiting champagne.

This could go either way, but I think it crossed a line.

That’s what I think, which is why the judge cautioned him.

quote:

Originally posted by ECSquirrel:


The real issue is quite simple, but the solution is quite complex. The current system permits lawyers to take cases on contingency which allows all plaintiffs to be represented forcing a significant cost of defendants. In a looser pays scenario, the bar is raised for lawyers filing suit as it significantly increases the "cost" an a cost-benefit analysis associated with a lawsuit. That higher bar would result in fewer legal cases being filed reducing the societal spend on lawyers. It's really a question of balance. The current system prioritizes spurious lawsuits over the cost to defend against those lawsuits.

The policy decision for society is whether we want injured plaintiffs to be able to seek proper compensation, or do without in many cases.

The whole “industry” is driven by the our societal decision to spread the costs of the inevitable injuries through the mechanism of insurance. Defendants are encouraged to have insurance. Customers and others are encouraged to use the products and services to a greater degree than they otherwise would in the expectation that they would have practical resort compensation if they suffered an injury.

Is there a better way? Who knows. Not so far, at least that has grabbed the attention and support of voters the legislatures and hence the legal system must obey.

There are always outliers like this which make the newspaper, or at least draw attention from those who seek to change things with their “improvements.”

When I was admitted, liability for negligence could often by defended by showing the plaintiff was at fault even in the slightest degree, contributory negligence. In the decades since, comparative negligence has become more and more the rule, where the costs of injuries are divided up in proportion to the finding of fault. That may be the rule everywhere now for all I know.

I used to hear things like this all the time in closing arguments from some of the best lawyers in the business. Doesn't strike me as particularly egregious, certainly not when compared with some of the things that came out of Joe Jamail's mouth.

quote:

Originally posted by ChicagoSigMan:
I used to hear things like this all the time in closing arguments from some of the best lawyers in the business. Doesn't strike me as particularly egregious, certainly not when compared with some of the things that came out of Joe Jamail's mouth.

Jamail would say anything, and get away with it because he was Joe Jamail.