Monsanto Leverages Washington Court Victory to Challenge $1.1B in PCB Verdicts
America ı By Rochdi Rais
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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."
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