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By on July 29th, 2019

What Went Wrong in ‘Nuclear’ $2B Monsanto Verdict

A “nuclear verdict” is what jury consultant Rachel York Colangelo calls the recent $2 billion judgment against Bayer on claims its Monsanto Roundup weedkiller caused cancer.

It was by far the highest of three consecutive trial losses, all in California, for the German pharmaceutical and life sciences company, which bought St. Louis-based Monsanto Co. last year for $63 billion. The other two verdicts totaled $159 million. The next Roundup trial is scheduled for August in St. Louis.

Bayer said that it will appeal the verdicts and that Roundup is safe. A recent Environmental Protection Agency report reaffirmed its previous findings that glyphosate, the active ingredient in Roundup, is safe when properly used.

Colangelo, national managing director of jury consulting for Magna Legal Services in Washington, D.C., has more than 10 years of experience in jury consulting. She did not consult on the Bayer cases.

She spoke to the Business Journal about what she believes went wrong for Bayer and what it can do going forward.

What do you do as a jury consultant? I help attorneys, corporate clients and insurance carriers determine how triers of fact — juries, judges and arbiters — perceive their cases, what story or theme they can emphasize. We do that through pre-trial work, such as mock juries. We consult on opening statements, witness preparation and closing arguments. Few cases go to trial — most settle — and mock trials, for example, may encourage them to settle.

Were you surprised by the size of the $2 billion verdict? A lot of people were, but as a jury consultant, I wasn’t surprised at all. In mock trials, I see how a lot of juries react. I was not at the trial and did not consult on the trial, so I am on the outside looking in. In no way are any of my comments meant to be critical. The defendants have many more facts about their case than I do.

That said, what do you think went wrong for Bayer? The Roundup issues have been in the press long before these cases. People have heard friends and neighbors say, ‘Don’t use Roundup because it causes cancer.’ And Monsanto had a reputation, warranted or not, as a ‘big, bad corporation.’ People buy bags of potato chips that say ’No GMO,’ and many of Monsanto’s products are genetically modified. Plaintiffs lawyers are exploiting those predisposition in jurors. If a lawyer can make jurors feel scared or threatened, they begin thinking about themselves, their family, their neighbors.

What explains the size of the $2 billion verdict? When you instill anxiety and fear, jurors get angry — regardless of whether Monsanto did any of that. And there were internal Monsanto emails and memos that didn’t look good, looked like there could be a coverup. The plaintiffs pointed out internal memos that referred to Roundup as ‘that billion-dollar question.’ So jurors lashed out, and you get a $2 billion verdict, $1 billion for each of the two plaintiffs.

What are the risks for Monsanto in future trials? If people didn’t hear about the first two verdicts, they certainly heard about the third, the $2 billion. Juries may ask, ‘Do we want to be the first jury to find for Monsanto?’ They may think $2 billion is too high, but $100 million isn’t. Keep in mind, people across the country are very different. California juries tend to be more liberal and more health and environmentally conscious. They don’t use Roundup on their lawns. In St. Louis, where Monsanto is based, jurors may have a different view.

What can Bayer do differently in future trials? They need to ask: What is the story we can tell in the opening statement that will get the jury to really listen? If you are not able to grab them from the start, a lot of jurors will shut down. They hear primarily what supports the plaintiffs. Monsanto and Bayer relied heavily on the science that said there was no causal link between Roundup and cancer. In effect, they were saying, ‘Once you hear the science, you will know we are right.’ Juries really try to understand science, but a lot of it will go over their heads, as it would ours. And jurors have heard the anecdotal evidence and will see the memos and emails.

Bayer must put the elephant front and center in the courtroom. During jury selection, they have to get potential jurors to commit under oath to be willing to hear them out and make an effort to understand the context of those email and memos. Those who can’t commit, you kick off the jury.

What other risks does Bayer face? Plaintiff attorneys have gotten very aggressive. They advertise for clients who have used Roundup, regardless of whether they have cancer. Plaintiffs may demand pro-active damage awards: ‘Even though I don’t have cancer, I have used Roundup, and Bayer should pay for me to go to the doctor every two months for monitoring,’ plus monetary compensation for the pain and suffering of worrying about the possibility of getting cancer.

This piece originally appeared in the St. Louis Business Journal on May 24, 2019.

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