Law360 (October 17, 2024, 11:12 PM EDT) -- Monsanto is continuing its appellate bid to put off a chemical poisoning trial already underway in Washington state court as the plaintiffs told a Seattle jury on Thursday the company owes them more than $450 million, in the 10th such trial tied to an Evergreen State school.
Counsel for a group of families told the King County Superior Court jury Monsanto owes each of the 15 individuals a baseline $30 million to $50 million in compensatory damages, plus punitive damages to be requested at the end of the trial, for manufacturing the industrial chemicals that they say triggered brain damage and other lifelong health issues.
"Justifiably passing judgment against one of the largest chemical corporations in the world is what we hope you do at the end of this trial," Courtney E. Rowley of Trial Lawyers for Justice, representing the families, told jurors.
Led by former student Gunnar L.G. Rose, the families are among the nearly 200 people who claim they were sickened by polychlorinated biphenyls, or PCBs, from florescent light ballasts and building materials at the Sky Valley Education Center, 35 miles northeast of Seattle.
But on Wednesday, Monsanto filed motions urging the Washington Court of Appeals to rethink a commissioner's decision this week to let the trial go forward, saying again that the proceedings need to be paused until the Washington Supreme Court addresses overlapping issues in the case. The justices agreed last week to hear three teachers' request to reinstate their $185 million victory in Erickson v. Pharmacia that was overturned in May by the Court of Appeals.
Pharmacia LLC, the spinoff that Monsanto has agreed to defend in litigation stemming from its manufacture of PCBs from the 1930s to 1977, so far faces an additional $1.1 billion-plus in verdicts from the trials but has appealed those losses. Monsanto was acquired by Bayer AG in 2018.
Monsanto on Wednesday moved for the court to modify the ruling letting the trail proceed, citing the trial judge's recent decision to admit disputed testimony from an industrial hygienist for the families regarding the levels of PCBs at the school.
The trial court "has now indicated that it intends to allow the very expert opinions from plaintiffs' PCB exposure expert (Kevin Coghlan) that this court held in Erickson are not generally accepted in the scientific community and should have been excluded," the company told the Court of Appeals.
Monsanto said there was a "substantial risk" of reversal of any verdict in the case that would "render the current trial a colossal waste of resources — not only for Pharmacia, but also for the jurors, witnesses, and court personnel, including this court on review."
King County Superior Court Judge Michael Ryan has not yet issued an opinion explaining his reasoning for allowing Coghlan's opinions in the Rose trial, although when refusing Monsanto's recent request for a stay late last week he suggested the Rose case record includes more evidence supporting the legitimacy of the calculations than the record in the Erickson case.
Coghlan's methods weren't discussed in detail during opening arguments on Thursday, but Rowley told jurors the industrial hygienist is an "industry leader" and expert on PCBs in schools who would be providing estimates of the chemical levels at Sky Valley at the time the plaintiffs were there. There were no reliable monitors in place then, Rowley said, and the PCB-containing material had mostly been removed by the time testing was done in 2016.
"No one can precisely say how much — what our people were exposed to at the time they were going to Sky Valley school," Rowley said. "That's common in these school PCB cases, because no one knew anything about PCBs — or that they were breathing them."
As in past trials, the families plan to show that the company concealed its knowledge of PCBs' health effects from the public and manipulated the science to downplay the dangers. Monsanto will present evidence that it adequately studied the chemicals and warned of potential risks, and that the health conditions at issue can't be blamed on PCBs.
Kimberly O. Branscome of Paul Weiss Rifkind Wharton & Garrison LLP, representing Monsanto, told jurors they will get to see reliable testing results showing PCBs were mostly undetectable in the air and on surfaces inside the school at the time the plaintiffs were there, with a few samples indicating low levels that wouldn't pose a health risk.
"There is actual data about the PCB levels at Sky Valley Education Center, and you will get a chance to look at that data," Branscome said.
The trial, expected to last about two months, features the claims of three mothers and a dozen youth who spent time at the school as children between 2011 and 2016 while participating in hybrid programs for homeschooling families. They say their conditions include gastrointestinal problems, cognitive and emotional difficulties, hormonal abnormalities and reproductive system issues.
One mother was also hospitalized for two months after spending time at the school and has never regained full functioning of the right side of her body, Rowley told jurors.
Monsanto has contended that the trial court violated its due process rights by consolidating two groups of plaintiffs into one group of 15 in the Rose trial, saying jurors can't possibly determine whether PCBs are responsible for each of the injuries claimed by each person.
Branscome encouraged jurors to look for evidence in the medical records about whether the problems were diagnosed or treated by the families' doctors.
"It's important to remember that each individual and each claimed condition has to be looked at on its own to see if the evidence supports causation," Branscome said.
The Rose plaintiffs are represented by Henry G. Jones, Sean J. Gamble, Richard H. Friedman, James A. Hertz and Ronald J. Park of Friedman Rubin PLLP, Colleen Durkin Peterson and Bridget T. Grotz of Pfau Cochran Vertetis Amala PLLC and Nicholas C. Rowley, Courtney E. Rowley and Theresa Bowen Hatch of Trial Lawyers for Justice.
Monsanto is represented by Catherine W. Smith and Howard M. Goodfriend of Smith Goodfriend PS, Steven W. Fogg, Emily J. Harris and Lucio Maldonado of Corr Cronin LLP, Liz Blackwell and Darci F. Madden of Bryan Cave Leighton Paisner LLP, Kimberly O. Branscome of Paul Weiss Rifkind Wharton & Garrison LLP, Anthony N. Upshaw of McDermott Will & Emery LLP and Lindsey C. Boney IV of Bradley Arant Boult Cummings LLP.
The case is Gunnar L.G. Rose et al. v. Pharmacia LLC, case number 87281-8, in the Washington Court of Appeals, Division I, and case number 18-2-58239-3, in King County Superior Court.
--Editing by Brian Baresch.
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