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Monsanto is moving to capitalize on a Washington state appellate victory it claims casts doubt on more than $1.1 billion in PCB poisoning verdicts, while plaintiffs are staking out positions to defend — and even build on — their blockbuster wins.

Attorneys for Monsanto Co. say the Washington Court of Appeals' May 1 ruling, reversing the $185 million verdict in favor of teachers who worked at the Sky Valley Education Center, is a massive blow to the entire group of school staff members, former students and parents who claim they developed health problems due to polychlorinated biphenyls emitted by light fixtures at the public school site roughly 35 miles northeast of Seattle.

Seeking to interrupt a steady drumbeat of trial losses, the chemical giant argues that the Court of Appeals identified errors in the lower court's handling of Erickson v. Pharmacia LLC that also apply to plaintiffs' seven subsequent victories. The total damages at one point topped $1.7 billion, before one verdict was reduced by a judge in April and the plaintiffs' Erickson win was overturned last month.

The company is trumpeting the appellate panel's conclusions that the trial court had wrongly barred a key company defense and allowed punitive damages for the specific product liability claim of post-sale failure to warn — both of which involved questions about whether certain provisions of law from Monsanto's home state of Missouri could be applied to the case. The ruling also struck certain expert testimony on toxic exposure levels that Monsanto has characterized as integral to the entire case group.

"The company will pursue the reversal of the seven other past verdicts based on the Erickson appeal ruling," a company spokesperson said in a statement to Law360. "Because there are some additional appellate issues in each of the prior cases and they are at different stages of the post-trial process, the timing, substance, and form of these actions will vary from case to case."

Counsel for the plaintiffs, meanwhile, just last week urged the Washington state Supreme Court to review the appellate panel's decision. In a Friday petition seeking the high court's review, the Erickson plaintiffs wrote that the case "presents three important, recurring, and unsettled questions of law that will immediately affect dozens of parallel pending cases, comprising the claims of more than two hundred victims of toxic chemical exposure and over $1 billion in verdicts already handed down across eight trials."

They also intend to move for expedited review of their petition, according to Henry Jones of Friedman Rubin PLLC.

But in comments to the trial court and to Law360, plaintiffs' counsel downplayed the appellate ruling's significance, calling it relatively narrow and specific to the court's handling of the Erickson case.

Jones told Law360 last week that even if the state's high court partially or fully agrees with the Court of Appeals, the impacts would be limited to — at most — narrow retrials on a certain company defense.

As for the stricken expert testimony that Monsanto claims is so critical, the exposure calculations that the Court of Appeals deemed inadmissible account for roughly six minutes of five hours of the expert's testimony, Jones said. He added that the panel "did not find this to be reversible error, so it should have no impact on the verdicts."

The calculations were made by an industrial hygienist to estimate historic levels of PCBs at the school site when the teachers worked there, since the plaintiffs do not have testing data from that time period.

Dozens of Cases Target Monsanto

The nine cases that have been tried have featured the claims of a mix of children and adults who spent time at the school site, which was Monroe Middle School before it became an education center for homeschool families. The individuals blame PCBs that were emitted by old fluorescent light fixtures and other building materials there for various health conditions, including breathing problems, brain injuries, hormonal dysfunctions and cancer.

While one case ended in a mistrial and partial finding in Monsanto's favor, the other juries have agreed that the company caused injury to some or all of the plaintiffs in each trial group by supplying a product that was not reasonably safe. The defendant named in the cases is Pharmacia LLC, a corporate spinoff that Monsanto has agreed to defend in litigation stemming from its manufacture of PCBs from the 1930s to 1977.

King County Superior Court Judge Jim Rogers, who's overseeing case management of the lawsuit series, has postponed an upcoming trial that was expected to begin on May 20 to January and outlined a plan to consider consolidation of plaintiff groups for future trials. Otherwise, the judge has said, trying the more than 20 cases remaining would probably take nearly a decade.

Judge Rogers also rejected Monsanto's bid, just days after the Erickson ruling came down, to get the trial court to undo the plaintiffs' most recent win in Bard v. Monsanto based on the appellate panel's reasoning. He did not comment on the merits of the company's arguments, but instead said he would let the appellate process play out.

In addition to Bard, the six other Sky Valley cases that yielded jury verdicts against Monsanto have been appealed. Monsanto has appellate briefs due in June and July in some of those cases and will likely continue detailing its stance on Erickson's unique impact on each verdict. Two of those cases have been fully briefed and are awaiting scheduling for oral arguments before the court.

PCBs' 'Useful Safe Life'

The Court of Appeals ruled the product liability claims in Erickson should have been tried under the Washington statute of repose, a finding that has implications for at least four other cases that yielded $430 million in verdicts for the plaintiffs.

The ruling does not eliminate the chance of future wins for the plaintiffs in those cases, but instead means the plaintiffs will have to overcome additional hurdles for a favorable outcome.

The Washington statute of repose for product liability establishes that a product seller cannot be held liable for harm caused after the expiration of a product's "useful safe life," which is presumed to be 12 years unless certain exceptions apply.

In Erickson and four other cases, the trial court denied Monsanto's use of Washington's statute of repose for product liability as a defense. While the plaintiffs in the five cases brought their claims under the Washington Product Liability Act, they convinced the trial court to apply law from Monsanto's home state of Missouri — which does not have such a time limit for defective product claims.

But the three-judge appellate panel in Erickson concluded that the Washington statute of repose is an integral part of the state's product liability law and thus shouldn't have been substituted with Missouri law. Now the trial court will need to determine the factual question of the PCBs' "useful safe life."

Monsanto argues that this finding warrants the reversal of the $430 million verdicts in those four cases, as well as the $82 million verdict in the sixth case to go to trial, Mullen-Deland v. Pharmacia LLC.

"Given that PCBs were last produced more than four decades ago and the presumption of useful safe life under Washington law is 12 years, the company believes that repose is a strong argument for its defense in any future trials or retrials," a Monsanto spokesperson told Law360.

But Jones, representing the Sky Valley plaintiffs, said that even if the Erickson ruling is not overturned, the statute of repose determination "is unlikely to result in a complete reversal" of other victories because "the repose issue can be retried without affecting those verdicts."

The plaintiffs also dispute Monsanto's contention that the Erickson ruling affects the Mullen-Deland case, pointing to the trial judge's ruling there that Monsanto failed to prove the alleged harm came after the useful safe life period.

The plaintiffs have also shown in the most recent two trials, which did incorporate the Washington time limit, that they can still beat Monsanto's defense by arguing to jurors that an exception to the 12-year rule applies.

Under the Washington Product Liability Act's statute of repose, a product seller may be held liable for harm caused by a product beyond 12 years if the plaintiff demonstrates a product's useful safe life is longer. A product seller may also be held liable beyond the 12 years if it intentionally misrepresented facts about the product or intentionally concealed information about it — and that conduct caused a plaintiff's harm.

Jones noted in his statement to Law360 that the trial court could potentially apply that same reasoning to bar Monsanto from using the WPLA statute of repose defense in the other cases based on offensive collateral estoppel, given that the juries in the latest two trials found the Sky Valley building occupants were harmed within the 'useful safe life' of PCBs.

In a case brought by Angela B. Heit, jurors found that Monsanto intentionally misrepresented or concealed facts about its products, causing harm to the plaintiffs; jurors in the case from Angela M. Bard, however, did not reach those questions.

Expert Exposure Calculations

While lawyers for both sides have zeroed in on the Court of Appeals' handling of the statute of repose, Judge Rogers has suggested that the finding has little significance for cases awaiting trial, given that the jury was already asked to consider it as part of Monsanto's defense at the past two trials.

During a recent status hearing in one of the Sky Valley cases awaiting trial, the judge said his focus was on the appellate court's evidentiary findings and noted that he's now ready to proceed with fine-tuning a plan for future trials.

"And while you all I'm sure thought punitive damages and the statute of repose were the big issues, frankly, I did not," Judge Rogers said. "It really came down to the experts and whether they're going to admit them because that influences the issue of prejudice, among other issues, that need to be addressed in the consolidation or management of any trials."

In its Erickson appeal, Monsanto urged the state appellate court to ax an array of testimony from three experts related to PCB exposure levels and causation of the plaintiffs' alleged brain injuries. While the appeals panel based its reversal of Erickson on the statute of repose issue, it delivered mixed findings on the evidentiary issues and other questions "likely to recur in a new trial."

The company successfully convinced the panel's two-judge majority that one of the plaintiffs' experts, industrial hygienist Kevin Coghlan, should not have been permitted to share with jurors his back-calculations of historic levels of PCBs at the school site based on carpet samples and data from New York schools. The two appeals judges found those calculations relied on novel methods that weren't recognized by the scientific community, as well as portions of testimony relying on those calculations by a toxicologist witness for the plaintiffs.

In the wake of the opinion, Monsanto has maintained that "Coghlan's junk science on PCB exposure was central to the seven other adverse verdicts in this litigation," and said the company "will seek their reversal based on the well-reasoned conclusion by the Erickson appellate court that it was error to admit Coghlan's made-for-litigation calculations."

"Rather than use available data on PCB exposure, that showed no exceedances of EPA health-protective levels, Mr. Coghlan contrived a calculation that produced higher PCB exposure estimates," the company spokesperson said. "Moreover, the Erickson court also found that any causation testimony relying on Coghlan's unreliable exposure methodologies should not have been admitted — another error that was repeated in all seven other cases."

Jones, however, said the plaintiffs have construed this portion of the appellate court's ruling more narrowly. The ruling still lets the expert testify students and staff were exposed to high levels of PCBs, he said, noting the inadmissable statements are just a small sliver of Coghlan's roughly two days of testimony.

"Most importantly, the Court of Appeals did not find this to be reversible error, so it should have no impact on the verdicts," the plaintiffs' attorney added.

Because the plaintiffs do not have PCB testing data from the time the plaintiffs worked at the site, and the light fixtures containing the chemicals have since been removed, the plaintiffs relied on Coghlan to illustrate "exposure range" reflecting the possible airborne PCB concentrations during those timeframes. The company, meanwhile, has pointed to testing done at the site after remediation was completed showing no elevated levels.

The appellate panel's majority, Judges Janet Chung and Linda Coburn, ruled out two of Coghlan's three approaches for coming up with the range, finding them novel and not generally accepted by the scientific community: back-calculating potential air levels based on carpet samples that had been stored in plastic bags by the teachers and later tested for PCBs; and extrapolating historic levels based on data collected in a study of five New York schools before and after remediation.

In a dissenting opinion, the third panelist, Judge Stephen Dwyer, said he believed the trial court had gotten it right in allowing the methodologies, writing Monsanto has merely argued that Coghlan misapplied generally accepted science. Judge Dwyer noted Coghlan's carpet back-calculations were rooted in a recognized scientific theory to gauge the migration of PCBs from one source to other building materials and based on a formula from a peer-reviewed EPA study.

The appeals court said Coghlan could still directly compare the pre-remediation levels measured at the New York schools to Sky Valley as representative of a possible historic range.

The plaintiffs have emphasized that the appellate court rejected Monsanto's other arguments that the trial court had wrongly allowed certain inadmissible evidence and declined to give two specific jury instructions.

Punitive Damages in Question

Monsanto also argues that a Court of Appeals' finding in Erickson threatens $425 million in punitive damages awarded in the seventh and ninth trials. The plaintiffs, however, say the jury identified other reasons for those punitive damages aside from the specific cause of action ruled out by the appeals court.

In addressing other issues that may recur in future proceedings, the Erickson panel said jurors cannot award punitive damages for post-sale failure to warn.

While Monsanto has maintained that punitive damages shouldn't be allowed in the case outright because they are not permitted under Washington's product liability law, the appellate panel determined that the jury could award punitive damages only on the defective product claims existing under Missouri law.

But because Missouri law does not have a cause of action for post-sale failure to warn, and it wasn't apparent how much of the $185 million verdict was attributable to that claim, the panel said the trial court would need to revisit the issue on remand.

"In future proceedings, special interrogatories are required to establish the particular theory of liability supporting punitive damages, limited to claims that exist under Missouri law," the panel wrote.

In the only two other trials where jurors had the option of finding Monsanto liable for post-sale failure to warn, the forms show that was just one of the juries' grounds for awarding punitive damages.

On both verdict forms, jurors were presented with three claims and asked to identify which ones formed the basis of their punitive damages award: "not reasonably safe as designed," "failure to warn with product" and "failure to warn after sale." The two juries marked "yes" for all three options, awarding $60 million punitive damages in Clinger v. Pharmacia LLC and $784 million in Bard v. Pharmacia LLC.

Monsanto points out jurors did not assign punitive damages values to those three questions. The company will argue that the verdicts must be reversed based on its contention that post-sale failure to warn can't be untangled from the full punitive damages amount.

Counsel for the plaintiffs, however, says the wording of the Clinger and Bard verdict forms is enough to preserve the punitive damage awards in those cases in light of the Erickson ruling.

"A verdict can be upheld on any ground," Jones said, "so it is unlikely the punitive damages awarded will be overturned given that the juries found it appropriate to award punitive damages for both defect and failure to warn."

Following the $857 million verdict in Bard, Judge Rogers reduced the punitive damages awarded by the jury by $419 million, lowering the final judgment to $438 million.

While Monsanto has appealed the Bard judgment, the plaintiffs have also cross-appealed Judge Rogers' decision to lower the amount.

At Monsanto's request, a Washington state court commissioner has since agreed to an emergency stay to allow the company to argue for a reduction of the nearly half-billion dollar supersedeas bond that it must post to avoid execution of the judgment while its appeal of the case is pending.

The commissioner scheduled a hearing on oral arguments regarding the bond issue on July 19.

The three teachers in the Erickson case are represented by Friedman Rubin PLLP and Gupta Wessler LLP. Other Sky Valley plaintiffs are also represented by Pfau Cochran Vertetis Amala PLLC, PWRFL, Trial Lawyers for Justice and Schroeter Goldmark & Bender.

Monsanto and Pharmacia are represented by Bryan Cave Leighton Paisner LLP in the Erickson case. Corr Cronin LLP and Irwin Fritchie Urquhart Moore & Daniels LLC are also representing the companies in other Sky Valley cases.

The case is Kerry L. Erickson et al. v. Pharmacia LLC, case number 83287-5, in the Washington Court of Appeals, Division I, and 1031351 in the Washington State Supreme Court.