on May 28, 2021
On May 8, 2019, all eyes were on R. Brent Wisner as he stood before an Oakland jury to deliver closing arguments in the third Roundup lawsuit to go to trial. His clients, husband and wife Alva and Alberta Pilliod, a World War II veteran and schoolteacher, had both been diagnosed with non-Hodgkin lymphoma after years of using the weed killer. They claimed that the chemical glyphosate had caused their cancer and that manufacturer Monsanto knew and failed to warn of the risks. Their trial had been expedited so they might survive to see it. Alva’s cancer had spread from his bones to his pelvis and spine; Alberta’s was in her brain.
Wisner, of Baum Hedlund Aristei & Goldman, was 35 years old, a millennial who rode to court on a rented Bird scooter every day. He could count the number of cases he’d tried on one hand but had lost track of the number of times he’d introduced himself as the case’s co-lead counsel and heard: “Aren’t you a little young?” Rather than play up the $289 million verdict he’d won in the first Roundup trial, he used his perceived greenness as part of his strategy. He was David up against a corporate Goliath in this “historic fight against Monsanto”—a phrase he repeated every chance he got during the seven-week trial, the first of the California Roundup Judicial Council Coordination Proceedings under which hundreds of cases had been consolidated.
Wisner had been preparing for this moment for years—maybe his whole life. As the son of an environmentalist father who marched with Cesar Chavez on behalf of farmworkers, he grew up learning of the dangers of pesticides. And while he and the trial team—co-led by Michael J. Miller of The Miller Firm in Virginia—were confident the facts were on their side, that they’d proven “45 years of deliberate disregard for consumer safety,” now Wisner had to ask jurors to attach a number to it.
“I had to ask the jury for an astronomical amount of money—which is by the way an incredibly bizarre thing to do: to look at somebody in earnest and say, ‘I want you to give me a billion dollars,’” Wisner says. “It’s actually hard. You have to practice it in the mirror. Because if you don’t believe it, they sure as heck won’t believe it.”
So he sold the ask in the charismatic style the jury and packed courtroom audience—including celebrities like Oliver Stone—had come to expect of the former child actor (see sidebar), moving about the space like he owned it, iPad in hand, tapping every so often to punctuate his point with internal Monsanto emails about ghostwriting scientific reports. And after a litany of points about fabricated science, buried studies, and the devastating impact to the Pilliods, he arrived at the question of punitive damages.
And he had Monsanto suggest the number.
Wisner read an email exchange between two figures the jury had come to know well—Monsanto toxicologists Michael Koch and Bill Heydens—discussing the financial impact of a 2015 finding that glyphosate was “probably carcinogenic to humans.” Wisner narrated the exchange like this:
“Michael Koch says, ‘We heard precisely what we didn’t want to hear about impact, huh?’
And then Bill Heydens, the guy that we see time and time again in every document: ‘I’m sitting here pondering this as we speak. The $1 billion question is how it could impact, actually cause them to reopen their cancer review and do their own in-depth epidemiology evaluation. This is getting huge.’
“In his own words,” Wisner said to the jury, “this is a billion-dollar question.”
He added: “This isn’t about giving a billion dollars to the Pilliods. They don’t need it. They don’t care about that. … It’s about taking money away from Monsanto. They can afford it, and they need to pay. Because that’s the kind of number that sends a message to every single boardroom, every single stockholder, every single person in Monsanto that can make a decision about the future. That is a number that changes things.”
Pedram Esfandiary of Baum Hedlund, a member of the trial team, marveled at the execution. “It made so much sense where he placed that document and how he presented it to the jury,” he says. “That number of a billion dollars had to be in the back of their minds without him having to ask for it. It was just an ingenious use of evidence and advocacy that really paid off.”
Five days later, as the verdict was being read, two jurors were holding hands. They ordered Monsanto to pay $2 billion in punitive damages, and $55 million in compensatory damages. It was the largest jury verdict ever against Monsanto, as well as the eighth largest for any product-defect claim in U.S. history.