For Bayer, Weeding Out Roundup-Wary Jurors Isn't Easy

(Bloomberg) -- Days before Bayer AG’s second Roundup trial got under way, the company got an advance look at why it stood a good chance of getting thumped.

At jury selection in San Francisco federal court, potential jurors were asked in a questionnaire, “Have you ever heard of Monsanto?”

“Yes,” one responded in writing, adding in all caps: “EVIL!”

Bayer acquired Monsanto Co. last year along with what now amounts to more than 11,000 U.S. lawsuits claiming its Roundup weed killer causes cancer. As those cases go to trial, the company will have no problem getting obviously biased people dismissed from the jury pool under rules allowing lawyers for both sides, and the judge, to scrub juries of prejudice.

But opinionated jurors end up serving, taking an oath to set biases aside and decide cases on the facts. One juror who sat on the panel that delivered Wednesday’s $80.3 million verdict against Bayer told the court that she won’t use Roundup. Another said she prefers organic foods, while a third said he’d worked for an environmental group’s campaign against oil and gas fracking.

Though all these jurors took oaths to be fair, the disclosures would seem to make them less than ideal picks for a chemicals conglomerate best known for genetically modified crops and powerful herbicides.

For Monsanto, whose U.S. operations are based in St. Louis, close to the heartland of American agriculture, there are friendlier places to face a jury than San Francisco, where the company lost its first two Roundup cases, and nearby Oakland, California, where the third trial got under way this week.

But Roundup will be harder to defend everywhere on the heels of two multimillion-dollar verdicts that have generated worldwide headlines over allegations that a household-name company hid the dangers of its best-selling product for decades.

While San Francisco is known for having a liberal jury pool, there’s “nothing unique about the publicity in San Francisco,” said Thomas G. Rohback, a trial lawyer at Axinn in New York. “It’s national news, and people are going to know about it wherever they are.”

The trick for Bayer going forward, Rohback said, is figuring out from future jurors, “How does that influence your view of the evidence in this case, if at all?”

Among the would-be jurors who weren’t chosen for the panel was an epidemiologist who likened Roundup to Agent orange, another who confessed she may have “negative feelings about Roundup” because her cancer-stricken father used a lot of chemicals in farming and a third who wrote in the court’s screening questionnaire: “Big companies like Monsanto need to be held accountable for and focus on being healthy, like Whole Foods.”

Gayle Cunningham, who ended up serving as chairwoman of the jury that issued Wednesday’s verdict, could be the type of juror Bayer would like to avoid, but may have trouble getting disqualified because she promised to be fair.

Cunningham, 59, of Windsor, California, made it clear during the jury vetting process that’s she no fan of Roundup.

“My husband uses it, and we have the discussion about that I don’t want him to use it,” Cunningham said, according to a court transcript. “We now have a new puppy in our household, so he knows now that he’s probably going to avoid doing that until the puppy gets a little bit older.”

Cunningham was one of three jurors -- of six total -- who knew at least something about the first Roundup trial that Bayer lost last summer.

In that case, a San Francisco state court jury socked Bayer with $289 million in damages -- including $250 million to punish the company -- after finding it liable for a design defect and failing to warn of Roundup’s risks in a case brought by a former school groundskeeper dying of cancer in his mid-40s.

After they’d been formally dismissed, some jurors in that case took the extraordinarily unusual step of writing to the judge when Bayer challenged the verdict to implore her to uphold their findings. In the end, the judge reduced the damages award to $78.6 million but she didn’t undo the jury’s all-important conclusion that the company was liable for the groundskeeper’s illness.

In the federal court trial that started Feb. 25, would-be jurors who acknowledged knowing about the first trial were questioned separately from those who didn’t. U.S. District Judge Vince Chhabria agreed to the separation at Bayer’s request out of what he said was an "abundance of caution."

The threat of a deeply biased jury pool wasn’t lost on Bayer lawyer Brian Stekloff, who expressed his concern to Chhabria at a Feb. 20 hearing.

“We really do want to test whether people who have expressed views -- which are largely in this group against Monsanto -- if they really can put them aside,” Stekloff said. The lawyer urged Chhabria to use his stature as the authority figure in the proceedings to press potential jurors about their ability to set aside biases. The judge agreed.

Besides Cunningham, Frank Rieder, 36, of Oakland, made the cut to serve on the jury. He told the court that he works in customer service at Imperfect Produce, which aims to reduce waste by delivering misshapen fruits and vegetables directly from farmers to customers’ doors.

Rieder said he did phone canvassing work for an anti-fracking campaign organized by Clean Water Action, and that his partner works for Forests Forever. The non-profit aims to save California woodlands from development -- and farming.

“So obviously it seems like the environment is something that is important to you, is that fair?” Stekloff asked Rieder during jury selection. Rieder confirmed it is.

“Look, I represent Monsanto, it’s a chemical company,” Stekloff added. “Do you have any concerns about or preconceived notions about Monsanto coming into the case?”

No, Rieder said, adding that his anti-fracking work was specific to Oklahoma and that he didn’t know anything about Monsanto. He said that after trial, if he found in favor of Monsanto, he’d be comfortable explaining his vote to previous and current co-workers.

At jury selection Stekloff also asked questions of Kathleen Alford, 28, a California native who works as a manager at Brandcast, which designs and builds websites. On her questionnaire, Alford indicated she might “potentially” have concerns about Monsanto, and at jury selection said she was “wary” of serving on a jury in San Francisco.

Jurors “might be, you know, a little bit closer to the Bay Area, which might lean a little bit more left than right, and left tends to lean a certain way with environmentalism,” Alford told Stekloff. She added that she would be equally skeptical of both sides of the lawsuit.

Stekloff followed-up on Alford’s response to an earlier question about whether jurors might harbor bias against Monsanto based on its development and marketing of genetically modified seeds. Alford had raised her hand when Stekloff asked whether any would-be jurors prefer shopping for organic foods.

“I was just raised that way,” Alford said. “I think it tastes better.”

“Okay,” Steckloff said.

Elizabeth Lee, 59, of Pacifica and born in San Francisco, also served on the jury. An executive assistant to the chief compliance, ethics, and integrity officer for Kaiser Permanente, Lee said that 13 to 15 years ago she applied Roundup to dandelions on her driveway but hasn’t used it since.

“We don’t have anything growing in between our pavings,” she said. “We don’t have any weeds.”

Lee was the sole caregiver for her mother, who she said died of cancer last year. She told Stekloff that she could be impartial but that “seeing the evidence may just bring up some emotions that, you know, I’ve just been suppressing.”

Jurors also included a 53-year-old female associate at Amazon whose stepfather had lymphoma -- the same type of cancer as the plaintiff in the case, Ed Hardeman, who testified that he sprayed Roundup for decades on his large plot of land in Sonoma County. Another female juror is a 55-year-old medical social work supervisor at Contra Costa Health Services.

Three jurors were excused during trial for illness, hardship and an undisclosed reason. To win his case, Hardeman needed -- and got -- a unanimous vote from the six remaining panelists.

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