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    In this episode of Settlement Nation we chat with Aimee Wagstaff, the founding partner of Andrus Wagstaff.

    Aimee has dedicated her professional life fighting against pharmaceutical and medical device companies. The vast majority of her litigation is done through national mass tort consolidations and she has been appointed by federal and state court Judges across the country to co-lead four national litigations, representing tens of thousands of injured claimants. In this episode we discuss how Aimee was the lead trial counsel in the only federal Roundup trial (Edwin Hardeman v Monsanto Company) resulting in a $80,267,634.10 verdict.

     

    Courtney Barber:

    Welcome everyone to Settlement Nation. I am Courtney Barber, and today I'm joined by my co-host, Chris Bua, as well as a very special guest, Aimee Wagstaff, the founding partner of Andrus Wagstaff from Denver, Colorado. Now Aimee has dedicated her professional life fighting against pharmaceutical and medical device companies. The vast majority of her litigation is done through national mass tort consolidations, and she has been appointed by federal and state court judges across the country to co-lead four national litigations representing tens of thousands of injured claimants.

    Courtney Barber:

    In addition, and something that we're going to cover today, just last year, Aimee was the lead trial counsel in the only federal Roundup trial resulting in an $80 million plus verdict on behalf of a California man who developed non-Hodgkin's lymphoma after decades of exposure to this product produced by Monsanto. So welcome Aimee.

    Aimee Wagstaff:

    Thank you, Courtney, and thank you, Chris, for having me. I'm really excited to be here.

    Courtney Barber:

    Oh, we're super excited to have you. And this is our first episode that we've had that is focusing on mass torts and someone that works basically specifically in this industry. So we're super happy to have you. I know you're a very busy lady, but we just can't wait to dive straight in. And on that note, Aimee, give us a little bit of your background story about how you even started practicing law.

    Aimee Wagstaff:

    I grew up in Kansas and I come from a long line of lawyers in my family that were mostly male. In fact, they were all male. I'm the first female lawyer. And my dad, my brother, my uncles, my grandparents, my grandfather, his brother, all up and down the line of male lawyers. So I kind of grew up with a law family, but I am, as you get to know me and my friends in the law and around me say I'm the most unlawyerly lawyer you'll probably ever meet. I don't fit the mold of what people think is a lawyer. And I think that's part of what's helped me be successful and helped me find my niche in the law. When I graduated college, I graduated from University of San Diego and I went to Club Med as a sailing instructor.

    Aimee Wagstaff:

    And I was a sailing instructor at Club Med for almost two years in Florida in Port St. Lucie. And then I got transferred to Cancun, Mexico for almost a year. And then I came out and I moved to Denver the night before 9/11. So I've been here about 20 or so years. I went to law school out here. I started in the defense bar, which was, you wake up and you put on a suit, and you go to the office, and you spend all day working your desk and then you come home and you just bill, bill, bill. And once I finally moved over to the plaintiff's side, which was about three years into my practice is where I finally found my home in the law. And being a plaintiff's lawyer is definitely much more suited to my style and the life I want to lead than any sort of law that I did prior to that.

    Chris Bua:

    So Aimee, what attracted you or made you want to focus specifically on mass tort cases?

    Aimee Wagstaff:

    Well, I sort of fell into it. For those people who have gone to law school, you'll know that they don't really teach you about mass torts in law school. Some law schools do now because people who have been successful in mass torts have started to go back and be adjunct professors or walk you through a mass tort, but basically what a mass tort is, and it's different than a class action. And what a mass tort is, mass tort is... A tort is a non-contractual harm, right? So a tort is something that you didn't contract with someone that you wouldn't do. When you get in a car wreck, you don't have a contract with that person that they wouldn't hit your car. If I were to punch you in the face, you and I don't have a contract I wouldn't do that.

    Aimee Wagstaff:

    But those are all torts, that's negligence, that's assault. Those are all torts. And so a mass tort is when a company... And I do mass torts that are sometimes as little as 10 or 15 people, right? If a school bus drives off the road, there's no contract that you have with the driver that they won't drive off the road, or there's no contract that the people on the bus have with the servicer of the bus that you will keep it up to date, but there's just certain things you have to do. So a mass tort can be as little as 10 people who get injured on a bus where a wheel falls off to a plane that goes down and all the people are injured to what we really do in my law firm is medical devices and manufacturers of pills who put defective products and pills out in the marketplace.

    Aimee Wagstaff:

    And then as recently as my last tort that I did was against the pesticide company, Monsanto, who put a toxic chemical out there into the world. So that's sort of what we do. The way that I got into it was I was working in a defense firm. I graduated law school in 2005, and I was working in a defense firm. And I remember it was when Obama was getting elected and the DNC was in Denver. It was a very political firm I worked for. And shortly after the DNC, feels like it was just yesterday, the firm imploded for several different reasons depending on who you ask. I told you I came from a long line of lawyers. And so I was introduced through one of my dad's colleagues, my dad practiced law in Kansas City. And I was introduced to one of his colleagues out here named Vance Andrus, who is my current law partner.

    Aimee Wagstaff:

    I'm 44 years old, and he is 30 years older than me, 74. And we became partners shortly after that in late 2008, early 2009. And we have just been partners ever since. We started our law firm at the end of 2009 and we've had our law firm now for 12 years and he does almost exclusively mass torts. So that's kind of how I got into it. It was just by luck [inaudible 00:06:18] and really mass torts fits my skillset as a lawyer for a lot of different reasons. I find it a very enjoyable practice of law. Of all the lawyers in the whole country, I would say there are probably 200 lawyers who actually really practice mass tort law. So it's a small group of people and more people are getting into it, but a lot of people get into it and they don't actually do the litigating part.

    Aimee Wagstaff:

    They don't actually take the depositions, try the cases. And so it's a small group of people. It's a little fraternity of lawyers who do very high risk litigation.

    Chris Bua:

    That's really interesting. As Courtney mentioned, you are the first mass torts attorney to come on Settlement Nation. And one of the common themes we've heard from our other guests who handle individual tort claims is that they really get connected on a human and emotional level with their clients. Is that something you're even able to do in these environments when you're representing hundreds or even thousands of clients on a case? And if so, how do you do that to fuel yourself throughout the case?

    Aimee Wagstaff:

    Yeah. So it's a different type of relationship that you have. I tell a lot of my clients that one of the elements of their damage in a mass tort is that they've hurt so many people and they take away that uniqueness of being damaged or injured, right? When you have one client and you do a single event case, the facts are unique to that client, the damages are unique to that client. When you do a case... I did vaginal mesh where there was probably 200 or 300,000 clients, right? And so that's an element of the damage. There's no possible way you could try all those cases. There's no possible way that you could know all of those clients.

    Aimee Wagstaff:

    My firm obviously didn't have all those clients, that was nationwide. But what does happen in mass torts and the way that mass torts gets settled is there's something called the bellwether process where you pull clients out of the group. And how those clients get picked is probably more detailed than we have time for in this podcast. But Mr. Hardeman, who you referenced, Courtney, earlier is a good example of that. I formed a very close connection with Mr. Hardeman. His trial was about a year and a half ago, and I still talk to him two or three times a week. And so we form very close bonds with someone. And the way that you do that is just you go through their journey with them.

    Aimee Wagstaff:

    And so of the clients, like in Roundup right now in the NBL, Judge Chhabria has pulled out wave cases. He's identified four wave cases. And so those clients, that's about 10 or 11 clients that get pulled out. I worked up Charlene Gordon's case in St. Louis, and you get close to her, but it is a different bond that you have with the other people. Because, like I said, that's just one of the unfortunate aspects of being injured by a product that the company has also injured hundreds of thousands of other people.

    Courtney Barber:

    Right. And Aimee, on that point and talking about the Monsanto case, there's a lot of plaintiff attorneys that we have. And as you mentioned, it's such a small group of people that do focus on this, and they may never in their career ever be involved in a mass torts case or even practice this. But can we go back to that case and start off with the beginning, how did this client come to you? How did this whole thing begin?

    Aimee Wagstaff:

    Yeah, I was actually having lunch with a colleague lawyer who was down in Colorado Springs and she told me about this IARC finding that glyphosate was a possible carcinogen. Glyphosate is the active ingredient in Roundup. And I didn't think much of it. And I talked with one of my colleagues about it, and we started investigating what that meant. And we knew that Roundup was so widely used. My law firm only has eight lawyers. And so we started partnering up with lawyers around the country. And one by one, they all sort of dropped off and said it was too hard or that it wouldn't work, or that the science wasn't there.

    Aimee Wagstaff:

    And part of the reason of that is because Roundup has been around since the '70s. And make no mistake, Monsanto has spent decades putting their fingerprint all over the fabric waiting for this day to come when there would be people who would lift up the covers and see what was underneath. And so this wasn't like any other case where you could take the science and the words of the science at face value. You had to really see the conflict of interest and see who was paying the bill and follow the money trail and see where versions got changed or edited, and see attachments to email, how they were sent to Monsanto in one way and they left Monsanto's email with important words deleted. And you kept doing that over and over again. And it was a very difficult litigation.

    Aimee Wagstaff:

    And there ended up being about six law firms, five or six law firms that really banded together, the Miller Firm, Baum Hedlund, Weitz & Luxenberg, and us really led the litigation for four or five years. And then eventually we get to trial and we've had three trials and these trials are really a thing of beauty. They're unlike anything you've ever experienced as a lawyer. You do a two month trial outside of your home, living in a hotel with 15 other lawyers who you don't work with in that law firm. And so everyone's just, they're focused on the task at hand, and you literally work on this trial 15, 16 hours a day. Prepping witnesses, being in the courtroom, arguing cases, putting on witnesses, and then you put it all in the hands of the jury.

    Aimee Wagstaff:

    And it's really an overwhelming experience, but those trials are, gosh, they can cost anywhere from 500,000 to a million dollars just to get to the trial, just to get to the courthouse steps and then the more money that you pay as well. And so people see these big verdicts in mass torts, but they don't realize how much risk and how much effort has gone into them and how much sacrifice by our clients to be the face of these. That's what's really important. Mr. Hardeman became the face of this litigation and he certainly didn't ask to be that. It was sort of thrust upon him and there's different positives and negatives that come with that. And then the other lawyers and the staff and their families who sacrifice as well.

    Courtney Barber:

    Absolutely. And speaking about Mr. Hardeman, what was unique about him in his case for say others that also had experiences with Roundup and the effects of that?

    Aimee Wagstaff:

    Well, what was unique about him is that he got a trial date, right? And so the federal case was bifurcated into two phases where the two state court cases, which is in part why their verdicts were a little bit bigger was that they got to show more evidence in the state court cases. But in the federal case, we had to do two trials to the same jury. Mr. Hardeman is from Sonoma County and he had a big plot of land. He was a residential sprayer. He just went out there and sprayed all the time for many years. He had some confounding medical conditions that Monsanto tried to blame it on, but the jury kind of saw through that argument. But the jury was out for a full week.

    Aimee Wagstaff:

    These trials aren't easy. You have to have a unanimous jury. And every day we had to sit in the courthouse and wait for the jury to come back. And it took them an entire week and over a weekend as well. So that's sort of what makes him unique. And we're still in the appellate process with him. We just argued to the Ninth Circuit Court of Appeals. My law partner, David Wool did a couple of weeks ago. And then Monsanto has vowed that they will take it to the United States Supreme Court, which I have no doubt that they will. So Mr. Hardeman's case is actually only about halfway done.

    Chris Bua:

    So Aimee, as a result of either of these injuries or these individual cases, has Monsanto changed anything about their practices or their product?

    Aimee Wagstaff:

    It's hard to say that they've changed their practices yet. There's some discussion about them changing their label. They have not changed their label yet. There's some discussion about them changing some of their ingredients in the Roundup. I'm not sure they've done that yet either. It certainly brought awareness to the actual product. In the United States, you are allowed to sell dangerous products, right? Cigarettes, other chemicals, you're allowed to sell dangerous products. That's not the problem. The problem is... That is a problem, but that's not the problem. The problem is the failure to warn. So if they were to put a warning on there that it causes cancer, then that would change a lot of the litigation because then people can make an informed decision on what they want to do. Right? That's the whole cigarette analogy.

    Aimee Wagstaff:

    Cigarette companies have warnings on their boxes saying, "This will kill you." Right? And people who still choose to do it, that's your right as an American to do that. So this litigation's not over yet. There's still a lot of pending cases out there. And so we are hopeful that Monsanto will do the right thing in the future and change their practices.

    Chris Bua:

    So what is it like taking on a huge corporation like Monsanto? I went online to check and it looks like their market cap is North of 50 billion. When I'm envisioning the courtroom, I'm envisioning rows of attorneys that are essentially armed guns firing at you and your clients. What is it like taking on that army of attorneys?

    Aimee Wagstaff:

    Yeah, so it was exciting, but you're absolutely right in what you're envisioning. I tried the case with a friend of mine named Jennifer Moore, and she's out of Kentucky, Louisville, Kentucky. I brought her in the case about a month before, and she helped me try it. And at one point Monsanto had more attorneys in the courtroom, actually in the courtroom than Jennifer and I had in our two law firms combined. They had massive, massive law firms behind them, sparing no expense. But you can only do so much when you have the facts like we had and the science supporting us like we had, but it's absolutely true. They have all the resources you could ever ask for to defend themselves.

    Aimee Wagstaff:

    And their product is their billion dollar baby and they defend it at all cost. So it was an interesting experience. As a trial lawyer, it's the exact thing you like to do as a plaintiff's lawyer is go against a big corporation and win like that. I think that people will keep winning those trials if they ever happen. It's a very good case from the plaintiff's perspective that Roundup causes cancer. I'll give you one little vignette of something that happened during trial is I was up arguing with the judge about something and Monsanto's lawyer. And there was one of Monsanto's lawyers in the back row, and they were typing something out, a motion to disqualify something that I said or whatever. But they were typing it as I was talking and they were incorporating what I was saying to the judge at that point into the motion.

    Aimee Wagstaff:

    And then they email it to another lawyer they had down the hall who printed it out, ran it over and they handed it to the judge as I was sitting down. It was like the most bizarre thing. Now and we were just ragtag lawyers who had seven, eight lawyers in their office and we weren't sleeping. We would be up all night working on this case. It was really exciting. We rented a VRBO and we all stayed together and we just... We all stayed in the same place and we just rented a big printer and we made sort of an office room and... The good old pre-pandemic days.

    Courtney Barber:

    That's sort of what I wanted to talk about. And you did answer some of those questions, but the trial prep routine is something that I really enjoy hearing about. And I think a lot of our listeners do as well, but it's very different from the sounds of what you were doing to a lot of other lawyers when they have trials. They have one client, it might be them and someone else, co-counsel. You guys are in... You're staying away from your families for months. You're in a rented house. Tell me a little bit Aimee, about how you actually work up your routine and your notes and everything to go to trial. Because it sounds monumental the amount of work you had to do.

    Aimee Wagstaff:

    Yeah, it really is. We would have 15, 20 people there. We'd have videographers that we would have to hire, tech people we'd have to hire. We would do mock trials. In San Francisco throughout the trial, at one of the trials we ran a shadow jury. So we had it live streamed into another room where there was another jury. And that jury that we tried to make look exactly like the jury in terms of demographics and age, and people, and ethnicity and things like that. We tried to match the jury. This was in one of the state court trials and they would say, "Okay, well, if we were there, we'd want you to say this or we'd want you to say that." And then we did, we would do mock openings to fake juries and they would give us feedback.

    Aimee Wagstaff:

    We would do mock closings. We would be prepping witnesses in the afternoon that we were going to be putting on in the morning. We were just running 24/7 every day with no break. And then writing briefs from things that happened, the judge would often say when we left court, we'd leave court in the afternoon and he'd say, "I want that brief by 7:00 PM," or whatever. So whatever we had planned that night would have to stop. We had deposition designations. Man, we fought over deposition designation just so much. And this was Monsanto's corporate witnesses. They refused to bring any corporate witnesses live. So we had to use all their deposition designations. And we would designate this portion and that portion, and then we'd fight about it and then we'd get a ruling and we'd have to have a cut ready within like 20 minutes.

    Aimee Wagstaff:

    So our IT people would be there cutting out based on what the judge said. It was just, it was complete controlled chaos. And so if you're going to try one of these big cases, you have to be able to just survive in controlled chaos because that's really what it was.

    Courtney Barber:

    And I think we need to definitely have you back on the show just to go through trial prep as an episode on itself, because I think a lot of people would find that so fascinating and different to how they do it. And just the fact that you're able to put that together is just astounding and the verdict was obviously great. So it's a testament to your skills. But just switching gears a little bit, I want to talk to you about what are some challenges or some great things have happened to you as a female in the law industry? It's obviously, as you said, you're in a very small pool to begin with and then as a female trial lawyer that's the lead trial lawyer, that's a even tinier pool. So tell me what it's sort of been like as an experience for you in this industry?

    Aimee Wagstaff:

    My law partner is a fabulous man who is a feminist in his own right and married to a very strong woman, and has strong daughters, and has me as a law partner. And he's really supported me and my growth in a way that I don't think anyone else ever could have. And he supported me to try those cases, to be lead and everything else that I wanted to do. So that's been great personally. As you venture out into the mass tort world, there's a lot of money at stake. Each one of these cases, Roundup so far is going to settle for $13 billion, just so far. And vaginal mesh, the one that I did right before it settled, probably, we're close to probably 15 or $20 billion. Look at opioids, it's going to settle for, I don't know, I would guess 30, 40, 50 billion dollars.

    Aimee Wagstaff:

    So there's a lot of money at stake in these litigations and it's very high risk high reward. And there's a lot of good old boys network. And so breaking into that and changing the mold, there has not just been what you would typically have in a corporation, but it's also people wanting to protect their position in sort of the eventual payout. So it's been a slow process, but I think that for me, I have had a positive experience. A couple of years ago with a good friend of mine named Paul Pennock at Weitz & Luxenberg, we got appointed the first majority female PSC, which was a great accomplishment. I host an annual conference and a year-long network called Women In Mass, which is women in mass torts. And we get together in Aspen every year at The St. Regis. Gosh, there's probably 20 or 30 people my first year.

    Aimee Wagstaff:

    And now we're, I think we're over 400 now who show up every year and we just kind of get together and network and help each other grow, help each other find opportunities, help each other expand. So it is changing. It is a slow, slow slog, and sometimes people's words don't match their actions, which I'm sure you guys see in your profession as well. But I think that the judges are changing things. The judges are coming around, the judges are realizing that diversity and more women in leadership positions and younger attorneys, and that you need to change things up a bit. And I think that's happening and that's really great for our clients, which is the most important thing. And it's really great for our profession as well.

    Chris Bua:

    That is great. Aimee, before we let you go, we are going to ask you one final question. What is one piece of advice that you wish you knew five or 10 years ago that you know now?

    Aimee Wagstaff:

    I would tell myself just to continue to be who you are and to be true to myself. And I started off this, oh, this litigation, this podcast telling you that I'm the most unlawyerly lawyer around and that's true. And it bothered me at first that I wasn't more of the lawyer mold, but then I realized that actually is a strength of mine. And that's, I think what's helped me be successful. And that's probably true in any profession is just be true to yourself. This is a profession filled with A type overachievers who are used to being the best at everything they do. Every lawyer has been a successful person in their life. They've usually excelled in grades and in everything academic. They're the smartest of the smartest people.

    Aimee Wagstaff:

    And then you go into the mass tort world and it's the elite of the elite. And so I would just say just continue being yourself and go into the beat of your own drum and it's really been successful for me to do that.

    Chris Bua:

    Well, Aimee, thank you so much for coming on our podcast today. For our listeners, if they want to reach out to you, what's the best way for them to get in touch with you?

    Aimee Wagstaff:

    You can just email me, Aimee, A-I-M-E-E.wagstaff@andruswagstaff.com. Or you can just Google, Aimee Wagstaff, Denver lawyer and you'll find me.

    Chris Bua:

    Aimee, thank you again so much for joining us. Everyone, thank you for listening and remember to hit that subscribe button and like and review Settlement Nation wherever you listen to this content. It goes a long way to making sure we show up when someone's searching for great legal content. That's it for this one. See you next time right here on Settlement Nation.

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