Former Monsanto CEO Hugh Grant lost his appeal to escape testifying at an upcoming trial over claims that the company’s Roundup herbicide causes cancer.
The Missouri Court of Appeals Western District on Friday denied Grant’s petition that sought to quash a subpoena compelling Grant to testify in person in the case of Allan Shelton v Monsanto. The trial of the civil suit is set to begin May 2 in Kansas City, Missouri.
It is not clear if Monsanto will escalate the appeal to a higher court.
Shelton suffers from non-Hodgkin lymphoma (NHL) and is one of more than 100,000 people around the United States who have alleged in lawsuits that exposure to Monsanto’s Roundup weed killer, and other company herbicide brands made with a chemical called glyphosate, caused them to develop NHL.
Shelton’s lawyers have argued that Grant was an active participant and decision maker in the company’s Roundup business and should be made to testify at the trial, but Grant’s lawyers maintain that Jackson County Circuit Court Judge Charles McKenzie’s approval of a subpoena for Grant to testify at trial was “in excess” of the judge’s authority and “an abuse of discretion.”
Grant claimed that the effort to put him on the stand in front of a jury is “wholly unnecessary and serves only to harass and burden” him. He notes in court filings that he left Monsanto in 2018 when the company was sold to the Germany company Bayer AG, and that he already has given a “comprehensive videotaped deposition” in the nationwide Roundup litigation that can be presented at this trial.
Fight over other evidence
As the trial date nears, both sides are battling over various motions to exclude certain evidence from the jury. In one such “motion in limine” argued earlier this month, Monsanto’s lawyers asked the judge to bar plaintiffs from telling the jury that Monsanto owner Bayer has announced it will stop selling glyphosate-based weed killing products to U.S. consumers in 2023.
The motion seeks to exclude “evidence, argument or reference to Bayer’s recent decision to discontinue sales of glyphosate-based Roundup in U.S. Lawn and Garden markets beginning in 2023…” Bayer is removing the herbicides from the market to “manage the litigation risk” not because there are any safety concerns, according to the motion.
Allowing evidence of the decision to partially discontinue glyphosate-based Roundup sales “would be misleading and prejudicial because it might mislead the jury to think that the decision was made due to safety concerns or pressure from regulators,” Monsanto lawyers argued.
In an April 8 hearing on that and other matters, a Monsanto lawyer told the judge that the U.S. consumer market for its glyphosate products “is a very limited fraction of the total sales of glyphosate.” Glyphosate will continue to be sold to farmers and available to anyone through tractor supply stores, he said.
Plaintiffs’ attorneys asked the judge to deny Monsanto’s motion, arguing that the move to withdraw the products while under no regulatory pressure to do so is important information the jury should know.
“This unilateral act by Monsanto should be admissible at trial as evidence that the Company could withdraw the product from whichever markets and/or uses it wanted to and whenever it wanted to do that,” lawyers for Shelton said.
They added: “Plaintiff suspects that Monsanto cannot defend its made-up excuses for deciding to shelve Roundup in the household marketplace.”
While the judge in the case has not yet issued a formal ruling, he did agree with Monsanto that the information could be excluded.