Delmore-Barton v. Monsanto Company

Filing 55

SUGGESTION OF REMAND TO TRANSFEROR COURT. Associated Cases: 16-md-2741-VC, 18-cv-01427-VC. Signed by Judge Vince Chhabria on 3/11/2024. (crblc4, COURT STAFF) (Filed on 3/11/2024)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
IN RE: ROUNDUP PRODUCTS
LIABILITY LITIGATION

MDL No. 2741

This document relates to:

SUGGESTION OF REMAND TO
TRANSFEROR COURT

Case No. 16-md-02741-VC

Delorme-Barton v. Monsanto Co., Case
No. 18-cv-01427-VC

This suggestion of remand is for Plaintiff Karen Delorme-Barton, whose case was
transferred to this MDL from the Northern District of Illinois.
I
In March 2015, the International Agency for Research on Cancer (IARC) classified
glyphosate as “probably carcinogenic to humans.” The classification stemmed from scientific
studies that found an association between glyphosate exposure and non-Hodgkin lymphoma
(NHL). Glyphosate is the active ingredient in Monsanto’s widely used weedkiller Roundup, and
the IARC classification prompted people with NHL to file lawsuits against Monsanto in federal
and state courts across the country, primarily alleging that Monsanto failed to warn them about
the cancer risks posed by Roundup.
In October 2016, the Panel created this MDL for federal court cases in which plaintiffs
allege that Roundup caused their NHL. In re Roundup Products Liability Litigation, 214 F. Supp.
3d 1346 (J.P.M.L. 2016). To date, several thousand individual cases have been filed in judicial
districts around the country and transferred to the MDL.

Bayer (which now owns Monsanto) began to settle these cases in June 2020. The
company reached separate settlement agreements with individual law firms to resolve the cases
being handled by those firms. By this point, well over half the cases in the MDL are subject to
agreements with firms. But for each individual case, the settlement is subject to approval by the
plaintiff represented by the firm that signed the agreement.
Meanwhile, the cases in the MDL that are not subject to a settlement agreement continue
to be worked up for trial. This is happening in waves, with a litigation schedule (through
summary judgment) being set for each wave. Monsanto does not consent to cases from other
districts being tried here in the Northern District of California. Thus far, most cases in a given
wave have settled prior to summary judgment. Occasionally, a summary judgment ruling is
necessary, but then the cases settle shortly after I rule, and before I can suggest that the case be
remanded for trial. And on rare occasions, the case does not settle even after I rule on summary
judgment.
This case, Delorme-Barton v. Monsanto, was originally filed in the Northern District of
Illinois. It became part of the fifth wave. Discovery is complete, I have denied summary
judgment for Monsanto, and the case did not settle immediately following my ruling.
Accordingly, the case is ready for trial, and I suggest that the Panel remand it to the Northern
District of Illinois. What follows is a summary of the pretrial proceedings and guidance for the
judge who will be trying the case.
II
In the MDL, the proceedings were bifurcated and we focused first on general causation—
that is, whether Roundup is capable of causing NHL at exposure levels that people can be
expected to experience. Both sides (with the plaintiffs represented by leadership counsel)
presented expert testimony at Daubert hearings. I ruled that some of the plaintiffs’ experts
satisfied Daubert, and that a reasonable jury could conclude that Roundup is capable of causing
NHL. In re Roundup Products Liability Litigation, 390 F. Supp. 3d 1102 (N.D. Cal. 2018). There
is a video recording of the Daubert hearings on general causation; they can be viewed at

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https://www.uscourts.gov/cameras-courts/re-roundup-products-liability-litigation.
We then worked up three bellwethers for trial. All three involved claims under California
law. After discovery, Monsanto moved for summary judgment on the question of specific
causation—that is, whether a reasonable jury could conclude that Roundup caused NHL in these
three particular plaintiffs. Following more Daubert hearings, I denied Monsanto’s motion for
summary judgment on specific causation, ruling that a reasonable jury could find that Roundup
caused the plaintiffs’ NHL. See generally Pretrial Trial Order No. 85 (Dkt. No. 2799).1 However,
I ruled that certain portions of the testimony given by the plaintiffs’ experts at the Daubert
hearings crossed into the realm of junk science and could not be repeated to the jury at trial. Id.
at 6–9.
The first of the three bellwether cases, Hardeman v. Monsanto, went to trial in February
2019. The core claims in Delorme-Barton are similar to the claims that were brought by
Hardeman—namely, that Monsanto failed to warn of the risk that Roundup could cause NHL
and that Roundup is defective because it causes NHL. The Hardeman trial was bifurcated, with
the first phase focusing solely on causation. See Pretrial Order No. 61 (Dkt. No. 2406). A jury
concluded, after several days of deliberation, that Roundup caused Hardeman’s NHL. The
second phase of the trial focused primarily on damages. The jury awarded $5,066,667 in
compensatory damages and $75,000,000 in punitive damages.
The size of the punitive damages award was based on evidence presented at trial that
Monsanto was more concerned with tamping down safety inquiries and controlling public
opinion around Roundup than it was with ensuring that its product is safe. California law
provides for punitive damages where a defendant acts “with a willful and conscious disregard of
the rights or safety of others.” California Civil Code § 3294(c)(1).
After trial, I reduced the punitive damages award to $20,000,000 to comport with due
process. See Pretrial Order No. 160 (Dkt. No. 4576). The verdict and post-trial rulings were
1

All Pretrial Orders cited here are docket entries in In re Roundup Products Liability
Litigation, Case No. 3:16-md-02741-VC.

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upheld by the Ninth Circuit Court of Appeals. Hardeman v. Monsanto, 997 F.3d 941 (9th Cir.
2021). Monsanto filed a cert petition with the U.S. Supreme Court, primarily arguing that
Hardeman’s state law claims are preempted by federal law. The Supreme Court denied the
petition in June 2022.
Following the Hardeman verdict, the two remaining bellwethers settled. Meanwhile, as
previously mentioned, we established a system by which cases in the MDL would be worked up
for trial in waves. In January 2020, I issued rulings on dispositive motions in the Wave 1 cases. I
also concluded that it would serve the interest of judicial economy for me to rule on nondispositive evidentiary motions that related to causation (for example, a motion to prevent a
particular expert from making a particular point to the jury about causation). I concluded that
other non-dispositive motions to limit or exclude testimony were better left to the judge who
would be trying the cases, so I denied those motions without prejudice. See Pretrial Order No.
202 (Dkt. No. 9143).
For specific causation, I simply incorporated my ruling from the bellwether cases and
applied it to the Wave 1 cases, thereby denying Monsanto’s motion to exclude specific causation
experts while identifying certain claims that the experts would not be permitted to make at trial.
See Pretrial Order No. 85 (Dkt. No. 2799); Pretrial Order No. 203 (Dkt. No. 9144). I also issued
a separate ruling limiting the testimony of a different plaintiff’s expert, Dr. Sawyer. Pretrial
Order No. 201 (Dkt. No. 9142).
I followed the same approach for subsequent waves. The Delorme-Barton case is part of
the Wave 5 cases. I issued rulings on dispositive motions and some Daubert motions in the
Wave 5 cases in August 2023. For challenges to Delorme-Barton’s specific causation expert, I
denied Monsanto’s motion to exclude, incorporating the reasoning from my prior rulings. See
Pretrial Order No. 285 (Dkt. No. 17198). I similarly reincorporated the reasoning from prior
rulings to deny Monsanto’s motions for summary judgment on general causation and noncausation grounds. Id.
However, I decided that a Daubert hearing would be necessary before I decided

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Delorme-Barton’s motion to exclude some of Monsanto’s experts. Specifically, I held a Daubert
hearing at which I heard testimony from Dr. Cristian Tomasetti, a Monsanto expert whose
testimony about the role of random, endogenous genetic mutations in causing cancer was new to
the federal litigation. In January 2024, I ruled that Tomasetti’s testimony was admissible. See
Pretrial Order No. 289 (Dkt. No. 17841). I also ruled that the testimony of two Monsanto specific
causation experts whose testimony relied heavily on Tomasetti—Dr. Navarro and Dr. Slack—
was largely admissible, although I excluded one minor aspect of Slack’s testimony. See id. at 13–
16.
One issue that came up during preparation for the bellwether trials was whether the
parties should be permitted to present general causation testimony from someone other than an
expert whose opinions were tested during the general causation phase of the MDL. In particular,
Monsanto argued that it should not be limited to using those experts, and that its specific
causation experts (who were not part of the general causation phase) should be permitted to offer
a general opinion that Roundup does not cause NHL (in addition to their specific opinion that
Roundup did not cause NHL in a particular plaintiff). Although I agreed with Monsanto that it
typically will make sense for a specific causation expert to include a general opinion about
whether Roundup is a risk factor for NHL (assuming the specific causation expert is also
qualified to give a general causation opinion), I rejected Monsanto’s request as it related to the
bellwether cases, because the parties and the Court had been operating under the assumption that
general causation testimony at the bellwether trials would be from the experts who passed
Daubert during the general causation phase. Pretrial Order No. 81 (Dkt. No. 2775). However, I
subsequently ruled that it would be appropriate for specific causation experts to include in their
opinions the kind of testimony given by the general causation experts during the general
causation phase of the MDL, thus potentially obviating the need to call separate witnesses on
general causation. See Pretrial Order No. 271 (Dkt. No. 14489).
The parties will need to refile motions in limine unrelated to causation, and the trial judge
will need to consider those motions. My in limine rulings from the Hardeman trial may serve as

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guidance. See generally Pretrial Order No. 81 (Dkt. No. 2775). My post-trial ruling explaining
the evidentiary issues that came up during trial may also be helpful. See generally Pretrial Order
No. 159. The Ninth Circuit’s ruling in Hardeman provides helpful guidance regarding damages
and jury instructions (including an instructional error—albeit a harmless one—that the Circuit
identified in the Hardeman case). Attached as Appendix A to this order is a longer list of
documents that the trial judge may wish to read in preparation for trial.
The Clerk of Court is directed to provide a copy of the suggestion of remand to the Clerk
of the United States Judicial Panel on Multidistrict Litigation and the Clerk of the Northern
District of Illinois.

IT IS SO ORDERED.
Dated: March 11, 2024
______________________________________
VINCE CHHABRIA
United States District Judge

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Appendix A

There is a webpage dedicated to the Roundup MDL that includes the Pretrial Orders noted below
in an easy-to-access format. Please see: https://www.cand.uscourts.gov/judges/chhabria-vincevc/in-re-roundup-products-liability-litigation-mdl-no-2741
Pretrial Order No. 236 (Order re Motion to Establish Holdback Percentage): This ruling on fees
is not directly relevant but it describes the history of the MDL.
Pretrial Order No. 45 (General Causation): This order denies summary judgment for Monsanto
on general causation grounds and applies the Daubert test to general causation experts. I
recommend the trial judge skim this ruling to develop general familiarity with the science and to
help understand the decision by the IARC to classify glyphosate as a probable carcinogen.
Pretrial Order No. 85 (Specific Causation): This ruling denies summary judgment for Monsanto
on specific causation grounds and sets parameters for testimony by specific causation experts.
Pretrial Order No. 101 (Summary Judgment): This ruling rejects various arguments by Monsanto
(other than those relating to causation) for summary judgment.
Pretrial Order No. 61 (Bifurcation): This ruling explains the rationale for bifurcating the
Hardeman trial.
Pretrial Order No. 70 (Jury Questionnaire): This is the questionnaire we submitted to prospective
jurors in advance of the Hardeman trial.
Pretrial Order No. 81 (Ruling on Motions in Limine for the Bellwether Trials): This ruling
discusses many issues that will come up in any Roundup trial.
Pretrial Order No. 108 (Jury Instructions on Phase 1 of the Hardeman Trial)
Pretrial Order No. 139 (Jury Instructions on Phase 2 of the Hardeman Trial)
Pretrial Order No. 159 (Denying Monsanto’s Post-Trial Motions Relating to Issues Other Than
Damages): This ruling discusses evidentiary issues that came up at the Hardeman trial, some of
which will likely recur in any Roundup trial.
Pretrial Order No. 160 (Ruling on Post-Trial Motions Relating to Damages): This ruling will be
relevant if there is a damages award and a post-trial motion to reduce the award.
Pretrial Order No. 289 (Order on Motions to Exclude Tomasetti): This ruling denies DelormeBarton’s motion to exclude Tomasetti and discusses his research about random mutations and
cancer.

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Ninth Circuit Ruling on Preemption, Damages, Evidentiary Issues, and Instructional Issues
Hardeman v. Monsanto, 997 F.3d 941 (9th Cir. 2021): This ruling is generally helpful, but in
particular the trial judge should make sure to review the discussion of jury instructions under
California law. After trial, in the event of a damages award, the Ninth Circuit’s discussion of
punitive damages will be important.

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