Case 3:16-md-02741-VC Document 2406 Filed 01/03/19 Page 1 of 2

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

IN RE: ROUNDUP PRODUCTS
LIABILITY LITGATION

MDL No. 2741
Case No. 16-md-02741-VC

This document relates to:
ALL ACTIONS

PRETRIAL ORDER NO. 61 RE:
BIFURCATION
Dkt. No. 2282, 2302

Monsanto’s request to bifurcate the three bellwether trials, with the first phase to address
causation only and the second phase to address all remaining liability and damage issues, is
granted. Although this type of bifurcation is unusual and should be done with caution – both
generally and in the context of MDL bellwether trials – it is warranted here. A significant portion
of the plaintiffs’ case involves attacks on Monsanto for attempting to influence regulatory agencies
and manipulate public opinion regarding glyphosate. These issues are relevant to punitive damages
and some liability questions. But when it comes to whether glyphosate caused a plaintiff’s NHL,
these issues are mostly a distraction, and a significant one at that.
The plaintiffs assert that this type of bifurcation is unfair because jurors will be left
wondering, during the causation phase, how glyphosate could possibly be dangerous if it has gone
largely unregulated for decades. But this relatively minor concern is best addressed by an
instruction to jurors that they must not defer to regulatory agencies, and must instead reach their
own judgment based on the evidence presented at trial. This concern is further obviated by the
likelihood that jurors will learn during the causation phase that IARC has classified glyphosate as a
probable carcinogen. In arguing against bifurcation, the plaintiffs assume that evidence of the
IARC classification would be inadmissible during the causation phase. Although the Court will
reserve final judgment on this question until the pretrial conference, it seems likely that jurors will,

 Case 3:16-md-02741-VC Document 2406 Filed 01/03/19 Page 2 of 2

during the causation phase, need to receive at least some limited information about the IARC
classification through expert testimony (albeit with an appropriate instruction about its limited
utility in this context). In addition, if the plaintiffs have evidence that Monsanto manipulated the
outcome of scientific studies, as opposed to agency decisions or public opinion regarding those
studies, that evidence may well be admissible at the causation phase. Any such evidence will likely
overlap with evidence of liability, but it will not be impossible, as the plaintiffs contend, to separate
evidence of causation from evidence of liability.1
The plaintiffs also assert that bifurcating causation from the remaining issues limits the
informational value of the bellwether trials. But a trial court’s primary goal, even in an MDL
bellwether, should be to conduct the fairest trial possible for the parties who are actually at trial.
Moreover, the plaintiffs are likely wrong, at least in the context of this particular MDL, that
bifurcation would diminish the informational value of the bellwethers. Monsanto has already lost a
$78.5 million judgment in state court, in a trial that was not bifurcated. If Monsanto were also to
lose on the causation question in a bifurcated trial in federal court, the parties would learn a great
deal about Monsanto’s chances of success (or lack thereof) in all future cases, however structured.
And even if a jury found for Monsanto on causation, that would still offer the parties another data
point (in addition to the state court trial from 2018 and the anticipated state court trials in 2019) as
they attempt to value the cases for settlement purposes.
IT IS SO ORDERED.
Date: January 3, 2019

__________________________
VINCE CHHABRIA
United States District Judge

1

If bifurcation turns out to be more difficult than the Court assumes, the matter can be revisited in
advance of the second bellwether trial. But absent further notice, all three bellwether trials will be
bifurcated, because the Court has concluded that this is the fairest way to proceed in a trial
addressing the carcinogenicity of glyphosate.