Trial Lesson: Don't 'Pop the Corks' Too Early

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By William Vogeler, Esq. on October 16, 2018 2:00 PM

Plaintiff's attorney Brent Wisner had a winning closing argument, but then the judge had something to say.

Judge Suzanne Ramos Bolanos didn't like the part about popping champagne corks. Wisner told jurors that the defendants were waiting for the verdict, and "if the damages number isn't significant enough, champagne corks will pop."

It could cost him his $289 million verdict. "Counting chickens before they hatch" may apply to farmers, but lawyers will talk about "popping the corks too early."

Champagne Corks

The case started with weedkiller. Groundskeeper Dewayne "Lee" Johnson alleged "Roundup" caused his cancer.

After the verdict, Monsanto's lawyer said the plaintiff's attorneys made improper statements at trial. George Lombardi said they improperly compared Monsanto to tobacco companies, telling jurors they could "change the world" with a punitive damages award.

In a tentative ruling, the judge agreed. She said she may overturn the $250 punitive award because the plaintiffs attorneys did not prove malice of fraud by clear and convincing evidence.

Bolanos may also reduce the damages award to $1 million for each year the plaintiff loses from his life expectancy. But the judge singled out the champagne remark as "sufficiently prejudicial" to warrant a new trial.

"Spooky" Verdict

News media reported the $289 million verdict "spooked investors" looking at thousands of similar suits against Monsanto. Bayer acquired the company in June.

Johnson's case was the first to go to trial. In the meantime, the plaintiffs attorney are planning their next argument.

"It will be up to the court of appeals to review the evidence and this unanimous jury's findings in a light most favorable to Lee Johnson," they said.

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