The 2 Billion Dollar Man

On May 8, 2019, all eyes were on R. Brent Wisner as he stood before an Oakland jury to deliver closing arguments in the third Roundup lawsuit to go to trial. His clients, husband and wife Alva and Alberta Pilliod, a World War II veteran and schoolteacher, had both been diagnosed with non-Hodgkin lymphoma after years of using the weed killer. They claimed that the chemical glyphosate had caused their cancer and that manufacturer Monsanto knew and failed to warn of the risks. Their trial had been expedited so they might survive to see it. Alva’s cancer had spread from his bones to his pelvis and spine; Alberta’s was in her brain.

Wisner, of Baum Hedlund Aristei & Goldman, was 35 years old, a millennial who rode to court on a rented Bird scooter every day. He could count the number of cases he’d tried on one hand but had lost track of the number of times he’d introduced himself as the case’s co-lead counsel and heard: “Aren’t you a little young?” Rather than play up the $289 million verdict he’d won in the first Roundup trial, he used his perceived greenness as part of his strategy. He was David up against a corporate Goliath in this “historic fight against Monsanto”—a phrase he repeated every chance he got during the seven-week trial, the first of the California Roundup Judicial Council Coordination Proceedings under which hundreds of cases had been consolidated.

Wisner had been preparing for this moment for years—maybe his whole life. As the son of an environmentalist father who marched with Cesar Chavez on behalf of farmworkers, he grew up learning of the dangers of pesticides. And while he and the trial team—co-led by Michael J. Miller of The Miller Firm in Virginia—were confident the facts were on their side, that they’d proven “45 years of deliberate disregard for consumer safety,” now Wisner had to ask jurors to attach a number to it.

“I had to ask the jury for an astronomical amount of money—which is by the way an incredibly bizarre thing to do: to look at somebody in earnest and say, ‘I want you to give me a billion dollars,’” Wisner says. “It’s actually hard. You have to practice it in the mirror. Because if you don’t believe it, they sure as heck won’t believe it.”

So he sold the ask in the charismatic style the jury and packed courtroom audience—including celebrities like Oliver Stone—had come to expect of the former child actor (see sidebar), moving about the space like he owned it, iPad in hand, tapping every so often to punctuate his point with internal Monsanto emails about ghostwriting scientific reports. And after a litany of points about fabricated science, buried studies, and the devastating impact to the Pilliods, he arrived at the question of punitive damages.

And he had Monsanto suggest the number.

Wisner read an email exchange between two figures the jury had come to know well—Monsanto toxicologists Michael Koch and Bill Heydens—discussing the financial impact of a 2015 finding that glyphosate was “probably carcinogenic to humans.” Wisner narrated the exchange like this:

“Michael Koch says, ‘We heard precisely what we didn’t want to hear about impact, huh?’

And then Bill Heydens, the guy that we see time and time again in every document: ‘I’m sitting here pondering this as we speak. The $1 billion question is how it could impact, actually cause them to reopen their cancer review and do their own in-depth epidemiology evaluation. This is getting huge.’

“In his own words,” Wisner said to the jury, “this is a billion-dollar question.”

He added: “This isn’t about giving a billion dollars to the Pilliods. They don’t need it. They don’t care about that. … It’s about taking money away from Monsanto. They can afford it, and they need to pay. Because that’s the kind of number that sends a message to every single boardroom, every single stockholder, every single person in Monsanto that can make a decision about the future. That is a number that changes things.”

Pedram Esfandiary of Baum Hedlund, a member of the trial team, marveled at the execution. “It made so much sense where he placed that document and how he presented it to the jury,” he says. “That number of a billion dollars had to be in the back of their minds without him having to ask for it. It was just an ingenious use of evidence and advocacy that really paid off.”

Five days later, as the verdict was being read, two jurors were holding hands. They ordered Monsanto to pay $2 billion in punitive damages, and $55 million in compensatory damages. It was the largest jury verdict ever against Monsanto, as well as the eighth largest for any product-defect claim in U.S. history.

The following year, Bayer, the parent company of Monsanto, announced $11 billion in settlements for 80,000 cases involving dozens of law firms. Roughly 15,000 of those cases were overseen by Wisner, as well as Jennifer A. Moore of Moore Law Group, in Louisville, Kentucky and Aimee H. Wagstaff of Andrus Wagstaff in Denver. 

“There’s no doubt when you have a litigation like Roundup … and have successful verdicts, that it is going to spark settlement,” says Moore, who led negotiations on behalf of nearly 60 plaintiff’s firms, and who points out there were no settlements before the Pilliod verdict. Of Wisner, she adds, “His work, along with others, was the genesis of bringing justice for thousands of people.”

That work is why Wisner was named 2019 Civil Plaintiffs Trial Lawyer of the Year by the National Trial Lawyers Association and is now being offered leadership in litigations alongside seasoned 40-year veterans. There has even been talk of a movie. It’s a meteoric rise that is all the more extraordinary when he considers just how close he came to being sanctioned, removed from the federal multidistrict litigation, and seeing his career go up in flames.

Eight years ago, when Wisner was at a crossroads, his father suggested he go talk to an old friend, Michael L. Baum, senior shareholder and president of Baum Hedlund. Wisner was in Los Angeles visiting his parents after completing a federal clerkship in Hawaii; but the Georgetown Law graduate didn’t know his next move. “I showed up in shorts and flip flops and a T-shirt,” Wisner says. “I was not looking for a job.”

But Wisner was blown away by the firm’s work exposing the manipulation of science by big pharma, and he started sharing some of his own ideas. “Our very first impression was he was like family and he belonged with us,” Baum says. Wisner is now a senior shareholder and vice president at the firm.

In 2015, the two were researching a possible case against Monsanto, related to the collapse of the bee population, when a colleague came to Baum. He had a relative diagnosed with non-Hodgkin lymphoma and wanted him to look into a recent finding by the International Agency for Research on Cancer, which connected glyphosate to cancer.

Baum and Wisner analyzed the data and saw the potential for a big case. Shortly after, Baum was speaking with a friend, Michael J. Miller in Virginia, and mentioned it in passing. Little did he know Miller was also looking at Monsanto. “He said, ‘We’re having a meeting in a couple of weeks. We’re putting a team together and you have to come with us,’” Baum recalls. So they went to Colorado to meet with Wagstaff, Robin L. Greenwald of Weitz & Luxenberg, and Miller’s team. They would later become the leaders in the federal MDL for which Baum also served on the executive committee. 

“We were on the committee that helped prep the experts and go through documents,” Baum says. He, Wisner and Esfandiary had a strong grasp of the science and in particular the epidemiology.

“We knew we had a case,” Wisner says. “We had these incredible admissions and were frustrated no one knew about these documents.”

One of the things that’s unique about Baum Hedlund, Wisner adds, is the firm’s dedication to getting documents publicly released. “We get these really incredible documents that affect people’s public health, and we make a point to get them unsealed,” he says. “Most lawyers don’t bother or care to do that because it doesn’t really affect the case; but for us it’s a greater good kind of thing.”

In that tradition, Wisner spent hundreds of hours compiling documents—and arguments for why they should be released—and brought that challenge to Monsanto’s lawyers. When they didn’t respond in 30 days, as required by the court, Wisner waited two more days, then emailed 200 documents to the U.S. Department of Justice, the California EPA and parliamentary regulators in Europe before posting them all on the firm’s website. They became known as the Monsanto Papers, a download so popular the firm website crashed more than once due to traffic.

Monsanto quickly responded by asking U.S. District Judge Vince Chhabria, who oversaw the federal MDL, to sanction Wisner along with the entire plaintiff’s leadership.

“I’m still just a young rambunctious kid on the block, and now I have the crosshairs on me,” says Wisner. He hired his own lawyer for the hearing, but after watching his responses make the judge “angrier and angrier” to the point of “fuming,” Wisner stood and asked to speak for himself.

That also went poorly. Judge Chhabria told Wisner he was “too focused on being a PR man” and Wisner blew a gasket. “That is preposterous!” he shouted, then proceeded with a speech—four pages long in the transcript—about public health and his father and farmworkers and “corporate malfeasance” and barely sleeping and how Monsanto had “stonewalled me, stonewalled me, stonewalled me.”

“That was the moment,” Wisner says, “where I think I saved my career. Or maybe made it.”

In the end, he was not sanctioned.

In the summer of 2018, he got ready for the first Roundup trial, set to begin in state court in San Francisco on behalf of Dewayne Johnson, a school groundskeeper who developed non-Hodgkin lymphoma. Though Wisner had recently won a $3 million verdict against GSK—notable for holding the brand name drugmaker liable for a suicide committed under the influence of the generic version of its drug, Paxil—the Johnson case was still only Wisner’s third trial. He led it with David J. Dickens, a partner at The Miller Firm, who picked the jury. Wisner handled most of the questioning and opening and closing statements. The team also got some high-profile help from Robert F. Kennedy Jr.

The result was a $289 million verdict, later reduced to $20.5 million on appeal.

Wisner saw it as just the beginning. “I kept telling people, ‘Guys, we went to trial with 20% of what we could have tried. What if we can present the whole story?’ Everyone thought I was being hyperbolic, but we had a lot we couldn’t get into evidence because we didn’t ask the right questions. So we redid the case almost in its entirety, took over a dozen new depositions of corporate witnesses, and retooled the case so that it was better suited for trial. And that’s what led to the Pilliod case.”

The depositions allowed Wisner to tell new stories—like that of Industrial Bio-Test Laboratories, one of the largest product safety labs in the country, which produced the reports on which Roundup’s approval was based. The company was later found to have engaged in massive fraud, leading to jail time for top executives, including a former Monsanto director. Beyond that, the recorded depositions—which used two cameras to allow cutting between Wisner and the witnesses—created a series of Perry Mason moments at trial. Wisner would back a defense witness into a corner, then play a clip that contradicted their current position—for example, the vice president who maintained there was no evidence “across the board” of any association between glyphosate and non-Hodgkin lymphoma after being presented with two hours of scientific evidence showing otherwise.

Wisner’s animated style could cause a stir in the courtroom. “Opposing counsel doesn’t like it, but it’s very engaging for the jury,” Esfandiary says. “There were numerous times during trial when opposing counsel would ask the judge to ask Mr. Wisner to cool down his theatrics because they thought it was too prejudicial.” 

Baum thought the performance was brilliant. “He has something close to a photographic memory for the documents,” he says. “He knew what document had a particular line that would be useful at that moment in time and had the ability with his iPad to find it quickly and pop it up.”

Moore attended parts of the Pilliod trial, just as Wisner did during the federal trial she had co-led, resulting in an $80 million verdict on behalf of Edwin Hardeman (later reduced to $25.2 million and still on appeal). “The science behind this is very complicated,” she says. “It’s hard for most people to understand when you look at epidemiology, and toxicology and genotoxicity. He’s able to break that down and teach the jury about the science, and that made a huge difference at the end of the day.”

During the defense closing, Wisner relied on the team and its collective knowledge of the evidence, but Alberta Pilliod also pitched in. Every time the defense lawyer said something incorrect, someone on Wisner’s team would write it down on a sticky note and pass it up. By the end, Wisner was holding a thick stack of sticky notes with only 10 minutes to prepare his rebuttal. “So I’m sitting here trying to figure out what I’m going to do, and Mrs. Pilliod leans over and goes, ‘Hey Brent, you should just show the jury that stack and tell them each one of these is a lie.”

And that’s what he did.  

When they stepped into the hallway after the verdict was read, Alberta Pilliod, in shock, asked, “Does that mean I get a billion dollars?”

Wisner told her probably not, but added: “You might have just caused the settlement for many thousands of people.” 

That also proved true. “The cases showed people that we can win, and consistently win, and win as often as we could get cases to trial,” Wisner says. “So the first thing we did was we pushed every case to trial as fast as we could.” Two pediatric cases were set for January 2020; Wisner would try one, Moore the other. Instead, they became the first Roundup cases to settle, in negotiations led by Moore.

“The trials combined with pretty intense negotiations and the trial dates we had set up put an incredible amount of pressure on them and ultimately led to the announcement last year of $11 billion in settlements,” Wisner says. He stresses it was a team victory, involving the work and huge financial commitment of several firms, before adding, “I would be very surprised if there’s ever another Roundup trial.”

Brent Wisner, Child Actor

“I did commercials for McDonald’s and Prudential,” Wisner says of his child acting career. “My first job was a public service announcement for Power Rangers. Embarrassingly enough, you can Google it with the words ‘Power Rangers Respect PSA.’ You’ll see me as a bully, and they teach me a lesson. I did mostly commercials and a few television spots here and there, but no films ever.”