Court frowns on Bayer’s proposed Roundup class-action settlement

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A federal judge on Monday had harsh words for Bayer AG’s plan to delay potential future Roundup cancer lawsuits and block jury trials, criticizing the highly unusual proposal crafted by Bayer and a small group of plaintiffs’ attorneys as potentially unconstitutional.

The “Court is skeptical of the propriety and fairness of the proposed settlement, and is tentatively inclined to deny the motion,” reads the preliminary order issued by Judge Vince Chhabria of the U.S. District Court for the Northern District of California. The judge’s position appears to be a sharp blow to Bayer and the company’s efforts to resolve a legacy of litigation attached to Monsanto, which Bayer bought two years ago.

More than 100,000 people in the United States claim exposure to Monsanto’s glyphosate-based Roundup herbicides caused them to develop non-Hodgkin lymphoma (NHL) and that Monsanto long knew about and covered up the cancer risks.

Three jury trials have been held in the last two years and Monsanto lost all three with juries awarding more than $2 billion in damages. All the cases are now on appeal and Bayer has been scrambling to avoid future jury trials.

Last month Bayer said it had reached agreements to settle the majority of lawsuits currently filed and had crafted a plan for handling cases that likely would be filed in the future. To handle the current litigation Bayer said it will pay up to $9.6 billion to resolve roughly 75 percent of the current claims and will continue working to settle the rest.

In the plan for handling potential future cases, Bayer said it was working with a small group of plaintiffs’  attorneys who stand to make more than $150 million in fees in exchange for agreeing to a four-year “standstill” in filing cases. This plan would apply to people who may be diagnosed in the future with NHL they believe is due to Roundup exposure. In contrast to Monsanto’s settlement of the pending cases against it, settlement of this new “futures” class action requires court approval.

In addition to delaying more trials, the deal calls for the establishment of a five-member “science panel” that would take any future findings on cancer claims out of the hands of  juries. Instead, a “Class Science Panel” would be established to determine whether Roundup can cause non-Hodgkin lymphoma, and if so, at what minimum exposure levels.  Bayer would get to appoint two of the five panel members. If the panel determined there was no causal connection between Roundup and non-Hodgkin lymphoma then the class members would be barred from future such claims.

Several members of the lead law firms who won the three Roundup cancer trials oppose the proposed class action settlement plan, saying it would deprive future plaintiffs of their rights while enriching a handful of lawyers who have not previously been at the forefront of the Roundup litigation.

The plan requires the approval of Judge Chhabria, but the order issued Monday indicated he does not plan to grant approval.

“In an area where the science may be evolving, how could it be appropriate to lock in a
decision from a panel of scientists for all future cases?” the judge asked in his order.

The judge said he will hold a hearing on July 24 on the motion for preliminary approval of the class action settlement. “Given the Court’s current skepticism, it could be contrary to everyone’s interest to delay the hearing on preliminary approval,” he wrote in his order.

Below is an excerpt of the judge’s order:

U.S. regulators relied for years on flawed pesticide data provided by Dow Chemical

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For years, U.S. regulators relied on falsified data provided by Dow Chemical to allow unsafe levels of the chemical chlorpyrifos into American homes, according to a new analysis from University of Washington researchers.

The analysis reexamines work from the 1970s sponsored by Dow and submitted to the Environmental Protection Agency (EPA) to guide the agency in establishing what scientists refer to as a “no-observed-adverse-effect-level” or NOAEL. Such thresholds are used to determine what types of use and at what level a chemical exposure can be allowed and still be considered “safe.”

According to the new analysis, published online July 3 in the journal Environmental International, the inaccurate findings were the result of a chlorpyrifos dosing study conducted by researcher Frederick Coulston and colleagues from the Albany Medical College in the early 1970s for Dow.

The authors of the new paper reexamining that prior work are Lianne Sheppard, Seth McGrew and Richard Fenske of the Department of Environmental and Occupational Health Sciences, School of Public Health at the University of Washington.

While the study was authored by the Coulston group, the analysis was completed by a Dow statistician and concluded that 0.03 mg/kg-day was the chronic NOAEL level for chlorpyrifos in humans. But the new analysis by the University of Washington researchers found that wildly overstated the margin of safety. Had the data been properly analyzed a lower NOAEL of 0.014 mg/kg-day would have been found, they said.

The Coulston study did not undergo peer review but still was used by the EPA for risk assessments throughout much of the 1980′s and 1990′s, the University of Washington researchers reported.

The researchers concluded: “During that period, EPA allowed chlorpyrifos to be registered for multiple residential uses that were later cancelled to reduce potential health impacts to children and infants. Had appropriate analyses been employed in the evaluation of this study, it is likely that many of those registered uses of chlorpyrifos would not have been authorized by EPA. This work demonstrates that reliance by pesticide regulators on research results that have not been properly peer-reviewed may needlessly endanger the public.”

Widely used

Commonly known as the active ingredient in the brand name Lorsban, chlorpyrifos insecticides were introduced by Dow Chemical in 1965 and have been used widely in agricultural settings. The largest agricultural market for chlorpyrifos is corn but the pesticide is also used by farmers growing soybeans, fruit and nut trees, Brussels sprouts, cranberries, and cauliflower, as well as other row crops. Residues of the chemical are commonly found in food. Non-agricultural uses include golf courses, turf, green houses, and utilities.

Despite the science promoted by Dow, independent scientific research has shown mounting evidence of the dangers of chlorpyrifos, particularly to young children. Scientists have found that prenatal exposures to chlorpyrifos are associated with lower birth weight, reduced IQ, the loss of working memory, attention disorders, and delayed motor development.

The American Academy for Pediatrics, which represents more than 66,000 pediatricians and pediatric surgeons, has warned that continued use of the chemical puts developing fetuses, infants, children and pregnant women at great risk.

Chlorpyrifos is so dangerous that the European Food Safety Authority has stated that there is no safe exposure level.

The EPA reached an agreement with Dow in 2000 to phase out all residential uses of the chemical because of research showing the chemical is dangerous to the developing brains of babies and young children. In 2012, chlorpyrifos was banned from use around schools.

In February 2020, after pressure from consumer, medical, scientific groups and in face of growing calls for bans around the world, Corteva AgriScience, a successor corporation to a merger of Dow and DuPont, said it would phase out production of chlorpyrifos. The chemical, however, remains legal for other companies to make and sell.

Human subjects

The study that is the subject of the new paper by the University of Washington researchers was overseen in 1971 by the Albany Medical College’s Institute of Experimental Pathology and Toxicology. The study included 16 healthy adult male inmates from a pool of volunteers at Clinton Correctional Facility, a maximum-security prison in Dannemora, New York.

The volunteers were randomized into four experimental groups, including one control group, whose members received a daily placebo. The members of the three other groups received daily chlorpyrifos treatments at three different doses.  The study took place over 63 days.

The new analysis found several problems with the study, including the omission of eight valid baseline measurements for one of the three treatment groups.

“Such an omission of valid data without justification is a form of data falsification that violates all standard codes of ethical research practice and is classified as outright research misconduct,” the University of Washington researchers concluded.

The researchers said that chlorpyrifos “passed through the regulatory process without much debate,” even though there was “growing evidence that it might pose a health hazard in residential environments.”

“The Coulston Study misled regulators by omitting valid data,” and “may have adversely impacted public health” for several years, the University of Washington paper concludes.

U.S. regulators relied for years on flawed pesticide data provided by Dow Chemical

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For years, U.S. regulators relied on falsified data provided by Dow Chemical to allow unsafe levels of the chemical chlorpyrifos into American homes, according to a new analysis from University of Washington researchers.

The analysis reexamines work from the 1970s sponsored by Dow and submitted to the Environmental Protection Agency (EPA) to guide the agency in establishing what scientists refer to as a “no-observed-adverse-effect-level” or NOAEL. Such thresholds are used to determine what types of use and at what level a chemical exposure can be allowed and still be considered “safe.”

According to the new analysis, published online July 3 in the journal Environmental International, the inaccurate findings were the result of a chlorpyrifos dosing study conducted by researcher Frederick Coulston and colleagues from the Albany Medical College in the early 1970s for Dow.

The authors of the new paper reexamining that prior work are Lianne Sheppard, Seth McGrew and Richard Fenske of the Department of Environmental and Occupational Health Sciences, School of Public Health at the University of Washington.

While the study was authored by the Coulston group, the analysis was completed by a Dow statistician and concluded that 0.03 mg/kg-day was the chronic NOAEL level for chlorpyrifos in humans. But the new analysis by the University of Washington researchers found that wildly overstated the margin of safety. Had the data been properly analyzed a lower NOAEL of 0.014 mg/kg-day would have been found, they said.

The Coulston study did not undergo peer review but still was used by the EPA for risk assessments throughout much of the 1980′s and 1990′s, the University of Washington researchers reported.

The researchers concluded: “During that period, EPA allowed chlorpyrifos to be registered for multiple residential uses that were later cancelled to reduce potential health impacts to children and infants. Had appropriate analyses been employed in the evaluation of this study, it is likely that many of those registered uses of chlorpyrifos would not have been authorized by EPA. This work demonstrates that reliance by pesticide regulators on research results that have not been properly peer-reviewed may needlessly endanger the public.”

Widely used

Commonly known as the active ingredient in the brand name Lorsban, chlorpyrifos insecticides were introduced by Dow Chemical in 1965 and have been used widely in agricultural settings. The largest agricultural market for chlorpyrifos is corn but the pesticide is also used by farmers growing soybeans, fruit and nut trees, Brussels sprouts, cranberries, and cauliflower, as well as other row crops. Residues of the chemical are commonly found in food. Non-agricultural uses include golf courses, turf, green houses, and utilities.

Despite the science promoted by Dow, independent scientific research has shown mounting evidence of the dangers of chlorpyrifos, particularly to young children. Scientists have found that prenatal exposures to chlorpyrifos are associated with lower birth weight, reduced IQ, the loss of working memory, attention disorders, and delayed motor development.

The American Academy for Pediatrics, which represents more than 66,000 pediatricians and pediatric surgeons, has warned that continued use of the chemical puts developing fetuses, infants, children and pregnant women at great risk.

Chlorpyrifos is so dangerous that the European Food Safety Authority has stated that there is no safe exposure level.

The EPA reached an agreement with Dow in 2000 to phase out all residential uses of the chemical because of research showing the chemical is dangerous to the developing brains of babies and young children. In 2012, chlorpyrifos was banned from use around schools.

In February 2020, after pressure from consumer, medical, scientific groups and in face of growing calls for bans around the world, Corteva AgriScience, a successor corporation to a merger of Dow and DuPont, said it would phase out production of chlorpyrifos. The chemical, however, remains legal for other companies to make and sell.

Human subjects

The study that is the subject of the new paper by the University of Washington researchers was overseen in 1971 by the Albany Medical College’s Institute of Experimental Pathology and Toxicology. The study included 16 healthy adult male inmates from a pool of volunteers at Clinton Correctional Facility, a maximum-security prison in Dannemora, New York.

The volunteers were randomized into four experimental groups, including one control group, whose members received a daily placebo. The members of the three other groups received daily chlorpyrifos treatments at three different doses.  The study took place over 63 days.

The new analysis found several problems with the study, including the omission of eight valid baseline measurements for one of the three treatment groups.

“Such an omission of valid data without justification is a form of data falsification that violates all standard codes of ethical research practice and is classified as outright research misconduct,” the University of Washington researchers concluded.

The researchers said that chlorpyrifos “passed through the regulatory process without much debate,” even though there was “growing evidence that it might pose a health hazard in residential environments.”

“The Coulston Study misled regulators by omitting valid data,” and “may have adversely impacted public health” for several years, the University of Washington paper concludes.

Monsanto Roundup and Dicamba Trial Tracker

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March 18, 2019: Jurors Want to Hear From Plaintiff Again

Today marks the beginning of the fourth week of the Hardeman V. Monsanto Roundup cancer trial, and jurors were still deliberating over the sole question that they must answer to close out the first phase of the trial and potentially move into the second phase.

The six jurors let Judge Vince Chhabria know on Friday that as they deliberate they want to have plaintiff Edwin Hardeman’s testimony read back to them. Chhabria said that would take place first thing Monday morning.

At Monsanto’s request, the trial has been divided into two phases. The first phase deals only with the question of whether or not jurors find that Hardeman’s exposure to Roundup was a “substantial factor” in causing his non-Hodgkin lymphoma.

If the jurors unanimously answer yes to that question the trial moves into a second phase in which Hardeman’s attorneys will put on evidence aimed at showing that Monsanto knew of the cancer risks of Roundup but actively worked to hide that information from consumers, in part by manipulating the scientific record.

 If the trial does go to the second phase, the plaintiff will  lack one key expert witness – Charles Benbrook –  after the judge ruled that he would sharply limit Benbrook’s testimony regarding Monsanto’s corporate conduct.

 Hardeman’s lead counsel Aimee Wagstaff and her co-counsel Jennifer Moore plan to spend the day in the courthouse Monday as the jury deliberates after again raising the ire of Judge Chhabria. Chhabria was annoyed Friday that the lawyers took longer than he expected to get to the courthouse after they were notified that all parties must convene to address the jurors’ request to hear Hardeman’s testimony again.

Chhabria sanctioned Wagstaff the first week of the trial for what he called “several acts of misconduct during her opening statement.” One of her transgressions, according to Chhabria, was spending too much time telling jurors about her client and his cancer diagnosis.  

March 15, 2019: Google Ads Raise Concerns About Geofencing

(UPDATE 3:30 pm Pacific time- Jurors retiring for the day after failing again to reach a verdict. Testimony from plaintiff Edwin Hardeman to be read back to jurors Monday morning at their request. Judge Chhabria remains irritated with plaintiff’s attorneys, annoyed at the time it took them to arrive at court Friday afternoon.)

Jurors were back in court today resuming deliberations after a day off on Thursday. There is but one question they must answer:  “Did Mr. Hardeman prove by a preponderance of the evidence that his exposure to Roundup was a substantial factor in causing his non-Hodgkin’s lymphoma?”

The judge admonished the jurors that if they pondered that question on their day off they should not seek out information about the safety of Roundup or read news articles or scientific studies about the matter. They should confine themselves to consideration only of evidence presented at trial.

Interestingly, yesterday in the San Francisco area google ads were popping up on smart phones and computers promoting the safety of Roundup. One site in particular – Weeding Wisely – was coming in at the top of  some Google sites, offering such headlines as “Fear of  ‘chemicals’ results from misunderstanding” and “Look at the science, not scare tactics, of glyphosate herbicide.” Also this one – “Weed Killer Hype Lacks Scientific Support.” 

 
The google ad renewed fears by some that Monsanto and Bayer may be engaging in geofencing, a term used to describe a tactic for delivering specific messaging to individuals within specific geographic areas. 
 
Last month Hardeman attorney Jennifer Moore alerted Judge Chhabria to fears held by Hardeman’s legal team that Monsanto might have engaged in geofencing before and would do so again to try to influence jurors.  Moore told the judge they were considering “whether we were going to file a temporary restraining order to prohibit Monsanto from any kind of geofencing or targeting jurors through social media or pay-per-click ads. And so I would just ask that that not be done. We’re not doing it on our side, but I just don’t want any targeting of jurors, their social media or Internet means.”
 
Chhabria replied “Isn’t it, like — doesn’t it go without saying that it would be totally inappropriate?  Obviously nobody on either side — nobody within a hundred miles of either side may attempt to target any juror or prospective juror with any sort of messaging.”
 
Geofencing is a popular advertising technique that delivers specific messaging/content to anyone within a specific geographic area designated by the company or group paying for the ad. The area can be very small, a mile radius around a specific address, for instance. Or it can be much larger. Anyone within that designated area using an app on a smart phone – such as a weather app or a game – would then be delivered the ad. 
 
Whether or not Monsanto did or would use the tactic to try to influence jurors would be almost impossible to prove. Monsanto attorney Brian Stekloff responded to the concerns raised last month and the judge’s warning about geofencing by saying “I understand that they may have allegations, but I’m not accepting those allegations…..  of course we will abide by that…”  
 
 The placement of google ads for certain search terms does not necessarily mean anyone was targeting jurors with geofencing. And it’s worth noting that google ad buys have been – and remain – a popular strategy employed by plaintiffs’ attorneys seeking new Roundup clients. 
 

March 14, 2019: Trial & Jury Day Off 

Jurors have the day off today but the lawyers do not. Chhabria is holding a hearing with attorneys for both sides at 12:30 pm Pacific time to discuss the scope of the second phase, if a second phase is held.

Among the issues to be discussed, plaintiff’s lawyers are renewing their request to be able to present testimony about Monsanto’s efforts to discredit French scientist Gilles-Éric Séralini after publication of his 2012 study findings about rats fed water dosed with Roundup.  Internal Monsanto records show a coordinated effort to get the Seralini paper retracted, including this email string.

Monsanto employees apparently were so proud of what they called a “multimedia event that was designed for maximum negative publicity” against Seralini that they designated it as an “achievement” worth recognition.

Evidence demonstrates “that the Séralini story is central to Monsanto’s failure to test as well as its efforts to manipulate public opinion,” Edwin Hardeman’s attorneys argue. As well, they say in their court filing, “the testimony reveals that Monsanto responded to the study by attempting to undermine and discredit Dr. Séralini, which is further evidence “that Monsanto does not particularly care whether its product is in fact giving people cancer,” but “[focuses] instead on manipulating public opinion and undermining anyone who raises genuine and legitimate concerns about the issue.” ”  

“The Séralini Story is Relevant to Monsanto’s Efforts to Undermine Scientists Raising Concerns about Glyphosate,” Hardeman’s attorneys argue.

Lawyers for Hardeman want expert witness Charles Benbrook to be allowed to testify about this example of Monsanto’s corporate conduct “post-use,” meaning actions by Monsanto that took place after Hardeman stopped using Roundup.

Judge Chhabria earlier ruled that the evidence regarding efforts to discredit Seralini could not be introduced because those efforts took place after Hardeman’s Roundup use ended and so would not have impacted him. 

On Wednesday, Chhabria also ruled that evidence of Monsanto’s efforts to discredit the International Agency for Research on Cancer after it classified glyphosate as a probable carcinogen would be excluded from a second phase of the trial because it took place after Hardeman’s Roundup use ended.  

Even as both sides prepare for a second phase, the lack of a quick jury decision does not bode well for Hardeman. His attorneys were hoping for a quick unanimous decision by the jurors in their favor. Any decision by the jury must be unanimous or the case can be declared a mistrial.

March 13, 2019: Jury Deliberating

(Video update)

(UPDATE 5:45 p.m. Pacific time – Jury has retired for the evening with no verdict. Deliberations to resume Friday.) 

Judge Chhabria instructed lawyers for both sides to be ready to present opening statements for the second phase of the trial today if jurors come back this morning with a verdict. The second phase only occurs, however, if the jurors first find unanimously for plaintiff Edwin Hardeman in the first phase, which dealt solely with the question of causation.

The question that must be answered on the jury verdict form is fairly straightforward:

Did Mr. Hardeman prove by a preponderance of the evidence that his exposure to Roundup was a substantial factor in causing his non-Hodgkin’s lymphoma?

It will take all six jurors to answer yes to that question in order for the trial to continue. If the jurors are split in how they answer the question, the judge has said he would declare a mistrial.

The judge guided the jurors in how to consider that question and how to evaluate the evidence presented to them in a 17-page list of instructions.

The jurors are allowed to request to look at specific exhibits and pieces of evidence but they are not allowed to see transcripts of the previous days of testimony. The judge said that if jurors want to review the testimony of a particular witness they can ask to have that witness’s testimony, or a portion of that witness’s testimony, read back to them but the lawyers and judge would need to be present for that.

If jurors return a verdict in favor of Hardeman on Wednesday afternoon, opening statements for phase two will take place Friday. 

Chhabria kept a tight rein on closing arguments Tuesday, prohibiting Hardeman’s lead attorney Aimee Wagstaff from showing a photo of Hardeman and his wife in her closing slide presentation. He told Wagstaff that the photo was “not relevant” and said that he did not “need to hear
further argument about that.” When she asked for his rationale, Chhabria simply repeated his belief that it was not relevant.  

Monsanto filed a motion for a directed verdict on Tuesday, arguing that Hardeman has presented “insufficient general causation evidence,” and specifically attacked the credibility of pathologist Dennis Weisenburger, one of Hardeman’s expert witnesses. Judge Chhabria denied the motion. 

Separately, the upcoming Pilliod V. Monsanto case in Alameda County Superior Court in Oakland was looking at a sizable jury pool of more than 200 people. They plan to select 17, with 12 jurors and five alternates.  The case may not begin until March 27 or March 28 due to the lengthy jury selection process. 

March 12, 2019: Concerns over Judge’s Jury Instructions

(Transcript from today’s proceedings)

(UPDATE, 3 p.m. Pacific Time – Closing arguments are completed. The jury has received instructions for deliberations.)

Closing arguments got underway Tuesday. With the first phase of Hardeman V. Monsanto winding down plaintiff Edwin Hardeman’s attorneys issued a strong objection to Judge Vince Chhabria’s plans for instructing the jury about how to consider the issue of causation.

The way Chhabria worded his instructions makes it “impossible” for Hardeman to prevail, attorney Jennifer Moore wrote in a letter to the judge. California law sets for instructions that causation is determined when a substance or action is a “substantial factor” in causing an outcome. But the judge’s instructions would require jurors to find that Roundup was the sole factor that caused Hardeman’s non-Hodgkin lymphoma, Moore argued.

Judge Chhabria replied by saying he could not give “the standard California multiple causation instruction” because plaintiff’s attorneys failed to present evidence that Hardeman’s cancer was due to multiple factors. He did say, however, that he could modify the instructions slightly to try to address the concerns. In the final instructionChhabria added wording that said asubstantial factor “does not have to be the only cause of the harm.”

Monsanto has argued that Hardeman’s cancer is not due toexposure to glyphosate-based herbicides but more likely due to the hepatitis C Hardeman had for many years.

This is also an interesting little nugget in the jury instructions:

Meanwhile, in the upcoming Pilliod V. Monsanto case, motion hearings and discussion of hardship claims for prospective jurors begins next week in Alameda County Superior Court in Oakland, not far from downtown San Francisco where the Hardeman case may still be underway if it goes to the second phase.

Opening statements in the Pilliod trial could begin March 21 but more likely will take place March 25 or later depending on how long the jury selection process takes.

 
March 11, 2019: Hepatitis C and… Hugh Grant?
 
Monsanto’s legal team on Monday presented testimony from Dr. Alexandra Levine, a hematologist/oncologist with City of Hope Comprehensive Cancer Center, seeking to convince the jury that exposure to glyphosate-based herbicides was not a cause of Hardeman’s cancer, and that a more likely factor is the hepatitis C Hardeman had for many years. Levine testified that she has seen “many, many,thousands of patients with non-Hodgkin’s lymphoma,” and she is in factconsidered a specialist in that specific disease.
 
Judge Chhabria said last week that he would like to see this first phase of the trial wrapped up early this week, meaning the case should be with the jury soon. A verdict requires all six jurors to be unanimous in their finding regarding whether or not Hardeman’s exposure to Roundup “was a substantial factor” in causing his cancer. The judge will define for jurors what that means. (See Friday’s entry for more details.)
 
If the jury does not unanimously decide either for Hardeman or Monsanto then the case would be a mistrial. Chhabria has also said that if that happens he is considering retrying it in May.
 
If the jury finds for Hardeman on causation, the trial would quickly move into Phase II using the same jury. And that is where things will really start to get interesting. Hardeman’s attorneys plan to call several Monsanto executives for testimony, including former Monsanto Chairman and CEO Hugh Grant. Grant spent more than 35 years at the company and was named CEO in 2003. He led the company until its acquisition by Bayer AG last summer.
 
Additionally, lawyers for Hardeman plan to call Roger McClellan, editor of the scientific journalCritical Reviews in Toxicology(CRT), which published a series of papers in September 2016 that rebuked the finding by the International Agency for Research on Cancer (IARC) finding that glyphosate was a probable human carcinogen. The papers purported to be written by independent scientists who found that the weight of evidence showed the weed killer was unlikely to pose any carcinogenic risk to people.
 
However, internal Monsanto documentsshow that the papers were conceptualized from the outset as a strategy by Monsanto to discredit IARC. One of Monsanto’s top scientists not onlyreviewed the manuscriptsbut had a hand in drafting and editing them, though that was not disclosed by CRT.
 
Hardeman’s lawyers additionally said they plan to call Doreen Manchester, of Croplife America, the agrochemical industry’s lobbying organization. Manchester’s role at CropLife has been helping “lead federal and state litigation to support pesticide regulatory issues.”
 
March 8, 2019: Phase 1 Nears End, Judge Ponders Jury Instructions
 
Lawyers for plaintiff Edwin Hardeman rested their case on Friday, giving Monsanto a turn to put on its own witnesses in this first phase of the case.
 
Judge Chhabria has indicated he would like to see the first phase of the trial wrapped up by early next week, and he has ordered attorneys for both sides to be ready to discuss and debate two proposed sets of instructions for him to give the jury for deliberations regarding the definition of “causation.”
 
For Hardeman’s case to be allowed to proceed to a Phase 2 in which damages could be awarded, the group of six jurors must be unanimous in finding that Roundup caused his non-Hodgkin lymphoma, so the judge’s instructions about how the element of causation is defined is a critical point.
 
The judge’s first option reads as follows: “To prevail on the question of medical causation, Mr. Hardeman must prove by apreponderance of the evidence that Roundup was a substantial factor in causing his nonHodgkin’s lymphoma. A substantial factor is a factor that a reasonable person would consider tohave contributed to the harm. It must be more than a remote or trivial factor.If you conclude that Mr. Hardeman has proven that his exposure to Roundup was asubstantial factor in causing his NHL, then you should find for Mr. Hardeman even if you believethat other risk factors were substantial factors as well.”
The judge’s second option has the same first three lines as the first option but then adds this: “Conduct is not a substantial factor in causing harm if the same harm would have occurredwithout that conduct.”
 
Option 2 also changes the last line of the instruction to say: “However, if you conclude that Mr. Hardeman has proven that his exposureto Roundup was sufficient on its own to cause his NHL, then you should find for Mr. Hardemaneven if you believe that other risk factors were also sufficient to cause his NHL.”
 
A big part of Monsanto’s defense is to suggest that other factors could be the cause of Hardeman’s cancer, including a struggle with hepatitis C. Hardeman’s team has said that he was cured in 2006 of hepatitis C but Monsanto’s team argues that cell damage from the hepatitis was a potential contributor to his cancer.
 
Monsanto expert witness Dr. Daniel Arber in his pre-trial report wrote that Hardeman has many risk factors for NHL, and said: “There is no indication that Roundup played any role in the development of his NHL,
and there are no pathological features to suggest a cause of his lymphoma.”
 
Judge Chhabria has ruledthat Arber cannot testify that the hepatitis C caused Hardeman’s NHL but ruled Thursdaythat Arber can explain that Hardeman’s lengthy exposure to hepatitis C left him at riskof developing NHL even after his virus had been successfully treated.
 
Several new documents have been filed by both parties related to evidence and jury instructions. See them at Monsanto Papers Hardeman page.
 
March 7, 2019: Judge Has Harsh Words for Monsanto
 
Judge Vince Chhabria issued a stinging response to Monsanto’s motion for summary judgment on Thursday, stating in his order that there was plenty of evidence that the company’s glyphosate herbicides – namely Roundup – could have caused plaintiff Edwin Hardeman’s cancer.
 
“To take just one example,” the judge wrote, “the De Roos (2003) studysupports a conclusion that glyphosate is a risk factor for NHL, yet Monsanto fails to mention it inits motion. Monsanto cannot prevail on a motion for summary judgment by simply ignoring largeswaths of evidence.”
 
He also said there was “sufficient evidence” to support a punitive damages award against Monsanto if the jury finds for Hardeman.
 
“The plaintiffs have presented a great deal of evidence that Monsanto has not taken aresponsible, objective approach to the safety of its product,” Judge Chhabria stated in his ruling.
 
The judge concluded: “Although the evidence that Roundup causescancer is quite equivocal, there is strong evidence from which a jury could conclude thatMonsanto does not particularly care whether its product is in fact giving people cancer, focusing instead on manipulating public opinion and undermining anyone who raises genuine andlegitimate concerns about the issue.”
 

March 7, 2019: No Trial Today, But a Story About the Last Trial

(UPDATE – See Tim Litzenburg counter claim and motion to strike )

The historic win last summer of California groundskeeper Dewayne “Lee” Johnson over Monsanto and its new owner Bayer made news around the world and made some of Johnson’s attorneys virtual celebrities in legal circles, garnering them awards and international notoriety.

But behind the scenes of victory, the aftermath of the first-ever Roundup cancer trial has plunged Johnson’s attorneys into a bitter legal battle of their own, with allegations swirling of self-dealing, drug use and “disloyal and erratic conduct.”

In a lawsuit and counterclaim filed in Orange County Circuit Court in Virginia, The Miller Law Firm accuses attorney Tim Litzenburg, someone who has portrayed himself as Johnson’s lead trial attorney, of stealing the firm’s confidential client information with the intent of setting up his own separate law firm, even as he was failing to show up for preparatory meetings for Johnson’s trial. The complaint also alleges that Litzenburg admitted to using drugs during the Johnson trial.

“Multiple members of Mr. Johnson’s trial team observed Mr. Litzenburg acting disoriented and frantic at court,” the complaint states. “When he was permitted to argue a motion before the Court…. his delivery was jumbled and incoherent. Members of the trial team were concerned that Mr. Litzenburg was actively under the influence of drugs in the courtroom…”

The trial itself ended up being handled by other attorneys and Litzenburg was not present for the close of the trial nor the day that the jury returned a $289 million verdict against Monsanto.

Roughly one month later, on September 11, 2018, The Miller Firm terminated Litzenburg’s employment, the lawsuit states.

Litzenburg, who is now affiliated with the firm of Kincheloe, Litzenburg & Pendleton, did not respond to a request for comment, other than to say it was “an unfortunate distraction” from his work at his new firm. In past comments Litzenburg described his separation from The Miller Firm as due to a misunderstanding with Mike Miller, one of the firm’s founders.

The following are excerpts from the litigation:

 Litzenburg  asserts that The Miller Firm’s claims against him are “salacious and often purely fictional” and are due to The Miller Firm’s fears that they would lose Roundup clients to Litzenburg’s new firm. He claims he was offered $1 million by firm founder Mike Miller to walk away from his Roundup clients but declined the offer. 

March 6, 2019: Nearing the End of the First Phase

(Transcript from today’s proceedings)

Expert witness for the plaintiff Dr. Dennis Weisenburger was being cross examined Wednesday by Monsanto attorneys after extensive direct testimony for cancer victim Edwin Hardeman. Hardeman’s attorneys said they were nearing the end of the first phase of presenting their case.

Weisenburger, a pathologist specializing in studying the causes of non-Hodgkin lymphoma, testified Tuesday for more than four hours, walking jurors through scientific evidence he said shows Monsanto’s Roundup herbicide is a “substantial cause” of cancer in people who are exposed. He followed testimony by Hardeman, who spoke for just less than an hour under direct examination about his use of Roundup for decades before his cancer diagnosis in 2016.

The Guardian recapped Hardeman’s testimonyin which he said thathe sprayed Roundup once a month for three to four hours at a time around his property and sometimes felt like chemical mist blowing onto his skin.

Plaintiff’s attorneys expected to rest their case today but Weisenburger’s testimony ran so long that they now plan to rest the case when court resumes on Friday. No proceedings are scheduled for Thursday.

See documents pertaining to testimony on the Monsanto Papers page.

Separately, lawyers gathered in nearby Alameda County Superior Court for a “Sargon” hearing ahead of the March 18 start of Pilliod V. Monsanto. The Pilliod case will be the third to go to trial challenging Monsanto and its new owner Bayer over alleged carcinogenicity of Roundup products. See Pilliod case documents at this link.

March 5, 2019: Hardeman to Testify, Sick Juror or Not

(Transcript from today’s proceedings)

After a break in testimony Monday due to a sick juror, cancer victim Edwin Hardeman is slated to take the stand today in the ongoing Roundup cancer trial in federal court in San Francisco. His testimony is expected to take less than an hour.

Judge Chhabria indicated the trial will proceed today without the woman juror if she remains ill. Only six jurors are required for the case to move forward and currently there are seven.

For Hardeman’s direct examination, his attorneys plan to bring in to court a 2-gallon, pump-up sprayer to demonstrate how he applied Roundup to his property for years; how his repeated exposure actually occurred. Monsanto attorneys on Monday sought to nix the sprayer demonstration plan, arguing that it would “invite the jury to make anysort of speculation about how the use of the sprayer could haveinfluenced exposure…” but Chhabria sided with Hardeman’s lawyers, saying he would allow a brief demonstration with the sprayer. He even made a bit of a joke:

THE COURT: I mean, one helpful bit of guidance I canprovide now is that the Plaintiffs are not allowed to spray youwith the sprayer.
MS. MATTHEWS (Monsanto attorney): Okay.
THE COURT: And they are definitely not allowed tospray me with the sprayer.

In another move applauded by Hardeman’s legal team, Chhabria said Monday that testimony about the “Parry report” can be presented to jurors. Monsanto objected but the judge agreed with plaintiff’s counsel that “the door has been opened to the Parry report” by Monsanto’s efforts to contest evidence of genotoxicity with glyphosate herbicides. Dr. James Parry was a consultant hired by Monsanto in the 1990s to weigh in on genotoxicity concerns being raised at the time by outside scientists. Parry’s report recommended that Monsanto do additional studies to “clarify the potential genotoxic activity” of glyphosate.

See this snippet from Monday’s discussion of this topic:

THE COURT: Okay. Well, Monsanto has a report from a doctor
that it hired that — that raised concerns about the
genotoxicity of glyphosate.So it seems to me that you are — you have already saidsomething to the jury — even before we get to your second
point, you have already said something to the jury that iscontradicted to a degree by an internal Monsanto document. Andso why shouldn’t they be able to cast doubt on Monsanto’sassertion to the jury that genotox doesn’t matter byestablishing that Monsanto hired a doctor to — or hired an
expert to look at the issue of genotoxicity in the late ’90sand the expert raised concerns about genotoxicity? … I mean, Monsanto itself investigated genotox –hired somebody to investigate genotox, and that personconcluded that genotox — that it’s possibly genotoxic.

After Hardeman’s testimony, next up with be expert witness Dennis Weisenburger, professor of the Pathology Department of the City of Hope Medical Center in Omaha, Nebraska.

March 4, 2019: Cancer Victim to Take the Stand (Not.)

(Transcript from today’s proceedings)

Plaintiff Edwin Hardeman was scheduled to take the stand today along with expert witness Dennis Weisenburger, professor of the Pathology Department of the City of Hope Medical Center in Omaha, Nebraska.

But one juror apparently is too ill to endure the long trial day so testimony is being postponed.

Weisenburger, who specializes in the study of non-Hodgkin lymphoma (NHL), was a key witness for the general pool of plaintiffs a year ago when he testified before Judge Vince Chhabria as the judge weighed then whether or not to let the mass of Roundup cancer claims move forward. Weisenburger has published over 50 papers in peer-reviewed journals about the causes of NHL.

Before news of the trial delay, plaintiffs had expected to rest their case on Tuesday, with Monsanto’s witnesses taking the stand by Wednesday. The whole first phase of the trial was expected to have been concluded by Friday or Monday, lawyers said.

The case will only move into a second phase if the jurors first agree that Hardeman’s exposure to Roundup was the cause of his non-Hodgkin lymphoma.

Hardeman used Roundup from to treat weeds and overgrowth on a 56-acre property he and his wife owned in Sonoma County. He reported using Roundup and/or related Monsanto brands from 1986 to 2012. Hardeman was diagnosed with B-cell NHL in February of 2015.

Without the jury present the judge focused on discussion of several pieces of evidence Hardeman’s attorneys want to introduce in the first phase, arguing that Monsanto “opened the door” to evidence that otherwise was not allowed. See the plaintiff’s discussion of introducing evidence related to a controversial mouse study from the 1980s, and evidence pertaining to genotoxicity concerns raised by a Monsanto consultant, and in contrast,Monsanto’s position on the mouse study and the genotoxicity issue.

People around the world are following the trial proceedings, and the judge’s decision last week to sanction Hardeman’s lead attorney Aimee Wagstaff reportedly triggered a flood of emails from lawyers and other individuals offering support and expressing outrage at the judge’s action.

March 1, 2019:Something to Chew On

(Transcript from today’s proceedings)

Here is an interesting tidbit to chew on over the weekend. In light of Judge Vince Chhabria’s unusual handling of the first Roundup cancer lawsuit to come to trial in federal court, (see previous entries for bifurcation and other background) and the vitriol with which he has been addressing plaintiff Edwin Hardeman’s legal counsel, many observers have asked – what gives? The bifurcation, his decision to sanction plaintiff’s lead counsel, his threat to dismiss the case entirely, and his repeated comments about how “shaky” the plaintiffs’ evidence is, obviously appear to favor Monsanto’s defense, at least in the early stages of the trial.Could there be some connection between Chhabria and Monsanto?

Chhabria has a pretty stellar background. Born and raised in California, he obtained his law degree in 1998 from theUniversity of California, Berkeley School of Law, graduatingwith honors. He served as law clerkfor two federal judges and for Supreme Court Justice Stephen Breyer and worked as an associate for two law firms before joining the San Francisco City Attorney’s Office where he worked from 2005 to 2013. He was nominated by President Obama for the seat he holds now in the summer of 2013.

But interestingly, one of those law firms where Chhabria worked has raised eyebrows.Covington & Burling, LLP, is a well-known defender of a variety of corporate interests, including Monsanto Co. Covington was reportedly instrumental in helping Monsanto defend itself against dairy industry concerns over the company’s synthetic bovine growth hormone supplement, known as rBGH (for recombinant bovine growth hormone) or the brand name Posilac.

Chhabria worked at the firm between 2002-2004, a time period when Monsanto’s legal battle over Posilac was in high gear.The firm was reportedly involved in the issuein part by “sending letters to virtually all U.S. dairy processors, warning that they faced potential legal consequences if they labeled their consumer products as “rbGH-Free.”

Covington is perhaps best known for its work for the tobacco industry. A judge in Minnesota in 1997 ruled that the firm was willfully disregarding court orders to turn over certain documents pertaining to claims that the tobacco industry engaged in a 40-year conspiracy to mislead the public about the health impacts of smoking and hide damaging scientific research from public view.

Shortly before Obama selected Chhabria for his federal judgeship, an array of former Covington & Burling attorneys took spots in the administration, including Attorney General Eric Holder and deputy chief of staff Daniel Suleiman. It was reported that employees of the law firm contributed more than $340,000 to Obama’s campaign.

Chhabria’s tenure at Covington was short, to be sure. There is no apparent evidence Chhabria ever represented Monsanto’s interests directly. But he is also no stranger to the world of corporate power and influence.How those dots connect in this case is so far unclear.

February 28, 2019: Trial Takes a Day Off

Thursdays are ‘dark’ days for the Roundup cancer trial, meaning lawyers, jurors and witnesses have a day to catch their breath and regroup. And after the fast and furious first three days of the trial, they probably can use the break.

After losing another juror on Wednesday morning, the trial proceeded with the testimony of plaintiff’s expert witness and former U.S. government scientist Christopher Portier. The testimony was provided via a video recorded in Australia last week.

During an afternoon break in Portier’s testimony, Judge Chhabria took a few moments to explain himself for certain comments he made to plaintiff’s lead counsel Aimee Wagstaff on Tuesday before sanctioning her for what he said was misconduct in her opening statement to the jury. (see prior blog entries for details.)

The following is a brief excerpt:

THE COURT: Before we bring in the jury, I want to
make a quick statement to Ms. Wagstaff.
I was reflecting on the OSC hearing last night, and I
wanted to clarify one thing. I gave a list of reasons why I
thought your conduct was intentional, and one of those reasons
was that you seemed to have prepared yourself in advance for —
that you would get a hard time for violating the pretrial
rulings. In explaining that, I used the word “steely,” and I
want to make clear what I meant by that.
I was using steely as an adjective for steeling yourself,
which is to make yourself ready for something difficult and
unpleasant. My point was that I perceived no surprise on your
part; and since lawyers typically seem surprised when they are
accused of violating pretrial rulings, that was relevant to me
on the issue of intent. But “steely” has another meaning as
well, which is far more negative. And I want to assure you
that that’s not the meaning that I was using nor was I
suggesting anything about your general character traits.
So I know you continue to disagree with my ruling and my
findings about intent, but I wanted to make that point very
clear.
MS. WAGSTAFF: Thank you, Your Honor.

February 27, 2019: Judicial Threats and Judge Jokes

(UPDATE – Another juror has just been dismissed. One of the seven women jurors has been dismissed in morning proceedings. That leaves one man and six women. A total of six jurors are required and all must be unanimous in their verdict.)

As day three opens in the first federal trial over claims that Monsanto’s Roundup products can cause cancer, U.S. District Judge Vince Chhabria has made it clear that he has no fondness for plaintiff Edwin Hardeman’s legal team.

Chhabria on Tuesday issued a ruling sanctioning Hardeman’s lead counsel Aimee Wagstaff for what the judge deemed as “several acts of misconduct,” fining her $500 and ordering her to provide a list of all others on her team who participated in drafting her opening statement so that those lawyers may also be sanctioned.

At issue – various remarks made by Wagstaff that Judge Chhabria thought exceeded the tight restrictions he has placed on what evidence the jury can hear. Chhabria wants jurors to hear only about scientific evidence without context about Monsanto’s conduct seeking to influence the scientific record and knowledge of certain scientific findings. Additionally, even though there were no restrictions in place pertaining to the introduction of plaintiff Hardeman to the jury, the judge took issue with Wagstaff’s manner of introduction and description of how he came to learn he had non-Hodgkin lymphoma.

In Monday’s proceedings the judge made his anger at Wagstaff clear, interrupting her multiple times as she addressed the jury and ordering her to alter her presentation. He also instructed the jury more than once not to consider what Wagstaff said as evidence.

In court on Tuesday he chastised Wagstaff and said that he knew her actions were intentionally aimed at flouting his directives because she did not wither under his “coming down hard on her” in court Monday during her opening statement.

Below is a portion of those proceedings from Tuesday.(References to Moore mean Jennifer Moore, who is co-counsel on the Hardeman case.)

THE COURT: All arrows point to this being bad faith, including, by the way, Ms. Wagstaff’s reactions to the objections. She was clearly ready for it. She clearly braced herself for the fact that I was going to come down hard on her. And she was — to her credit perhaps, she was very steely in her response to my coming down hard on her because she knew it was coming and she braced herself for that.

MS. MOORE: Well, I — Your Honor, I don’t think that is not fair; and that is based on assumptions on the Court’s part.

THE COURT: That is based on my observations of body language and facial expressions.

MS. WAGSTAFF: Well, actually, Your Honor, I would just like to talk about that for just one moment. The fact that I can handle you coming down in front of a jury should not be used against me. I have been coming in front of you now for, what, three years. So I’m used to this communication back and forth. And the fact that I was prepared for anything that you had to say to me — and that you interrupted my opening statement a few times in a row — should not be used against me. The fact that I have composure when you are attacking me, it should not be used against me.

THE COURT: I was not attacking you. I was enforcing the rules, the pretrial rules.

MS. WAGSTAFF: You just said the fact that I was able to compose myself is evidence of intent, and that is just not fair.

Plaintiffs’ attorneys in the case believe that the judge’s directive to separate the trial into two phases and sharply limit the evidence they can present to the jury is extremely favorable to Monsanto and prejudicial to their ability to meet the burden of proof in the case. They also say that the judge’s guidance on what evidence can come in and what cannot is confusing. And they point out that Monsanto’s attorney also in opening statements introduced evidence that was banned by the judge, though he was not sanctioned.

Below is a bit more from Tuesday’s proceedings:

THE COURT: And that is — that is relevant to intent. That is relevant to bad faith. The fact that the Plaintiffs have made so clear that they are so desperate to get this information into Phase One is evidence that it was not just a mistake that they happen to put this information in their opening statements.

MS. MOORE: Your Honor, I did not say we were desperate. What I was trying to explain is that the way the trial is set up is unusual. And I think, Your Honor, that you recognize that after the bifurcation order came out; that this is a unique situation where you limit a trial when we are talking about product case like this to only science in the first phase, and it has created confusion on both sides of the aisle.

That’s for sure.

Joke of the day – told to me by a lawyer who wishes to remain unnamed:

Q: “Who is Monsanto’s best lawyer?”

A: “Judge Chhabria.”

February 25, 2019: Reporting From Court(tweets transcribed here in reverse chronology)

Documents from Day 1 in the Hardeman trial are posted here.

See Transcript of proceedings.

See Plaintiff’s Opening Slide Deck and Monsanto’s Opening Slide Deck

3:30 p.m. –Jury is dismissed by judge but lawyers in Roundup cancer trial still discussing how evidence can or can’t be used. He’s still furious over plaintiff’s lawyer Aimee Wagstaff daring to talk about 1983 @EPA dox showing cancer concerns with glyphosate.

Judge is ripping into Aimee Wagstaff again saying he wants to sanction her $1,000 and maybe the whole plaintiff’s legal team as well. Calling her actions “incredibly dumb.”

2:30p.m. post lunch updates:

  • As Monsanto Roundup cancer trial resumes, plaintiff’s expert witness Beate Ritz talks to jurors about risk ratios, confidence intervals & statistical significance of cancer science. Touts the value of meta-analyses. @Bayer
  • Dr. Ritz is testifying about the various studies showing increased risk for cancer from glyphosate exposure.
  • Plaintiff Edwin Hardeman & his wife watch quietly, but during a break express frustration over how much Judge Chhabria has limited evidence the jury is hearing.
  • Sure-fire way to draw an objection from @Bayer Monsanto attorneys at Roundup cancer trial: mention @IARCWHO scientific classification of glyphosate as a probable carcinogen.
  • Day one of @Bayer Monsanto Roundup cancer trial concludes after lengthy testimony from scientist Beate Ritz walking jurors through research that shows risks of NHL from exposure to glyphosate herbicides. Judge thanks jurors for being attentive; tells them to stay away from media.

  • Only one day in and Roundup cancer trial is losing a juror. One of the two men on jury claims work hardship; he can’t afford to lose paycheck. That leaves 7 women and 1 man to decide case. Verdict must be unanimous for plaintiff to win.

11:38 a.m.Evidence of the judge’s ire in opening round of federal Roundup cancer trial: pre trial order for plaintiff’s attorney to show cause why she should not be sanctioned by 8 p.m. tonight.

11:10 a.m. Monsanto/Bayer wraps up its opening and now preparing for first witness, plaintiff scientist Beate Ritz. More updates from opening statement:

  • Plaintiff’s attorney calls for sidebar as those statements were barred by pre-trial orders but judge overrules her.
  • Now Monsanto attorney shows chart saying while glyphosate use has increased over decades, rates of NHL have not. He then says that despite @IARCWHO classification as glyphosate as probable carcinogen @EPA & foreign regulators disagree.
  • Defense attorney for Monsanto @Bayer on a roll; telling jurors all about the Agricultural Health Study, which showed no ties between glyphosate and non-Hodgkin lymphoma. Lawyer makes point Monsanto had nothing to do with the study.
10:45 a.m.Now it’s @Bayer Monsanto’s turn for opening statements – attorney Brian Stekloff tells jury “Roundup did not cause Mr. Hardeman’s non-Hodgkin lymphoma.”
 
  • Judge just orders another Monsanto @Bayer slide removed, interrupting defense attorney opening statement. Playing hardball with both sides.
  • Plaintiff’s attorney objects to one of Monsanto attorneys slides; judge agrees and slide is removed. Defense attorney making case that Hardeman’s history of Hepatitis C likely to blame for his NHL.
  • He tells jurors NHL is common type of cancer and most NHL victims are not Roundup users; there is no test a doctor can run to tell a patient his disease was or was not caused by Roundup.

10:15 updates on opening remarks of plaintiff’s attorney Aimee Wagstaff:

  • Judge now threatening to sanction plaintiff’s attorney and pondering if he should refuse to allow jury to see the plaintiff’s slides. @Bayer Monsanto lawyer says yes. Aimee asks to address his concern; judge cuts her off.
  • Judge now dismisses jury for break and then RIPS into plaintiff’s attorney – says she has “crossed the line” and is “totally inappropriate” in her opening statements. Says this is her “final warning.” Never a dull moment at the @BayerMonsanto Roundup cancer trial.
  • Judge also tells her to “move on” when she tries to explain that @EPAonly assesses glyphosate and not whole product.
  • She is allowed brief mention of @IARCWHOclassification of glyphosate as probable human carcinogen but judge cuts her off before she can say much.
  • In opening statement for @BayerMonsanto Roundup cancer trial plaintiff’s attorney points to new meta-analysis showing compelling ties to cancer (see Guardian story).
  • In opening statement for Roundup cancer trial plaintiff’s attorney reads from 1980s-era @EPAmemo “glyphosate is suspect” & goes through the story of how Monsanto engineered a reversal of EPA concerns. Jurors look a little confused by all this science stuff.

9:35 a.m. Now plaintiff attorney telling the story of the 1983 mouse study that caused @EPAscientists to find glyphosate cancer causing… before Monsanto convinced them not to. oops. Judge cuts her off again. Sidebar. @BayerMonsanto has to love this. For more on the 1983 mouse study, see 2017 article, “Of Mice, Monsanto and a Mysterious Tumor.

9:30 a.m. The main theme this morning is the judge is giving no leeway to the plaintiff’s attorney, via @careygillam:

8:49 a.m. Judge Chhabria is showing an early tight rein on this Roundup cancer trial. He stopped plaintiff’s attorney Aimee Wagstaff within minutes of her opening for a sidebar. Wagstaff opened by introducing the wife of the plaintiff, and began telling the story of their life and Hardeman finding the lump in his neck. The judge interrupted to tell Wagstaff to stick to comments dealing with causation only.

8:10 a.m. “Court is now in session”. Courtroom is packed for opening statements in Roundup cancer trial. Right off the bat, Monsanto Bayer, and plaintiff’s attorneys are already in conflict over evidence to be introduced.

8:00 a.m. And we’re off. Six months after a California jury decided Monsanto’s weed killers caused a groundskeeper’s cancer,another California jury is getting ready to hear similar arguments against Monsanto.

This time the case is being heard in federal court, not state court. Importantly, the judge has agreed with a request from Monsanto to try the case in two phases with evidence of potential negligent and deceptive conduct by Monsanto withheld during the first phase to allow the jury to focus solely on evidence pertaining to the question of whether or not the company’s products were to blame for the plaintiff’s cancer.

Plainitiff Edwin Hardeman suffers from B-cell non-Hodgkin lymphoma, which was diagnosed in February 2015, one month before the International Agency for Research on Cancer (IARC) classified glyphosate, a key ingredient in Monsanto’s Roundup and other herbicide brands, as a “probable human carcinogen.

Hardeman used Roundup products regularly to treat weeds and overgrowth on a 56-acre tract he owned in Sonoma County. Documents filed in federal court pertaining to the Hardeman trial can be found here.

Seven women and two men were selected as jurors to hear the Hardeman case. The judge has said the case should run through the end of March. Yesterday Judge Chhabria denied Monsanto a motion for summary judgement.

February 20, 2019: Jury Selected

Lawyers wasted no time Wednesday in selecting the jury for next week’s trial start. The jury is made up of 7 women and two men. For plaintiff Edwin Hardeman to win his case, the jury verdict must be unanimous.

The case is being tried in two phases. If jurors do not find in favor of the plaintiff in the first phase there will be no second phase. See below, January 10, 2019 post, for more explanation on the difference in the two phases.

Ahead of the trial lawyers for both sides have filed a joint list of exhibits they plan to introduce, or “may” introduce, as evidence during the proceedings. The list runs 463 pages and includes records ranging from decades-old EPA memos and email exchanges with Monsanto to more recent scientific studies.

February 19, 2019: Last-Minute Moves

With less than a week to go before opening statements in the Feb. 25 federal civil trial over accusations that Monsanto’s glyphosate-based weed killers cause cancer, lawyers for both sides were readying for jury selection that starts Wednesday.

In pre-trial proceedings lawyers for plaintiff Edwin Hardeman and the legal team representing Monsanto, now a unit of Bayer AG, have already been arguing over jury selection based solely on written responses provided by prospective jurors, and many have already been stricken by U.S. District Judge Vince Chhabria for cause.

On Wednesday, attorneys will question the prospective jurors in person. Monsanto’s attorneys are particularly concerned about potential jurors who know about the case that Monsanto lost last summer. In that trial, plaintiff Dewayne “Lee” Johnson won a unanimous jury verdict on claims similar to Hardeman’s – that Monsanto’s herbicides caused his non-Hodgkin lymphoma and that Monsanto failed to warn of the risks. Johnson was awarded $289 million by jurors, but the judge in the case reduced the verdict to $78 million.

The stakes in this case are high. The first loss hit Bayer hard; its share price is down nearly 30 percent since the verdict and investors remain skittish. Another loss in court could provide another blow to the company’s market capitalization, particularly because there are roughly 9,000 other plaintiffs waiting for their day in court.

In preparation for the trial opening on Monday morning, Judge Chhabria saidin a Feb. 15 hearing that he will separate out all jury candidates on a Monsanto list who say they have heard about the Johnson case for specific questioning about their knowledge of that case.

Among those already stricken from the jury pool based on their written questionnaires were several people who indicated they had negative perceptions about Monsanto. While the judge agreed with Monsanto’s request to remove those people from the jury pool, he refused a request from plaintiff’s attorneys to strike a prospective juror who said the opposite – the juror wrote that he feels that “they (Monsanto) typically are very honest and helpful to society,” and said he believed Monsanto’s Roundup herbicide was safe.

Judge Chhabria said “I didn’t think anyone in the Bay Area felt that way….”

In other pre-trial action, lawyers from both sides were in Australia preparing for testimony from plaintiff’s expert witness Christopher Portier. Portier is providing video-recorded testimony in advance with direct and cross-examination. He was scheduled to be in court in person for the trial but suffered a heart attack in January and has been advised against the long air travel that would be required to appear in person.

Portier is one of the plaintiff’s star witnesses. He is former director of the National Center for Environmental Health and Agency for Toxic Substances and Disease Registry and a former scientist with the National Institute of Environmental Health Sciences.

In other pre-trial action, Judge Chhabria ruled on Monday on motions from both parties dealing with what evidence would be allowed in and what would be excluded. Chhabria has ruled that there will be a first phase of the trial in which evidence will be limited to causation. If the jury does find that Monsanto’s products caused Hardeman’s cancer there will be a second phase in which evidence may be introduced pertaining to the allegations by plaintiff’s attorneys that Monsanto has engaged in a cover-up of the risks of its products.

Among Chhabria’s evidentiary rulings:

Evidence the plaintiff’s attorneys say shows Monsanto engaged in ghostwriting scientific literature is excluded for the first phase of the trial.

  • Evidence or Monsanto’s marketing materials is excluded for both phases.
  • Comparisons between Monsanto and the tobacco industry are excluded.
  • An email from Monsanto discussing work with the American Council on Science and Health is excluded from the first phase.
  • Arguments that glyphosate is needed to “feed the world” are excluded for both phases.
  • Certain EPA documents are excluded.
  • An analysis by the International Agency for Research on Cancer classifying glyphosate as a probable human carcinogen is “restricted.”

One piece of evidence plaintiff’s attorneys plan to introduce is a new meta-analysis A broad new scientific analysis of the cancer-causing potential of glyphosate herbicides. The study found that people with high exposures to the herbicides have a 41% increased risk of developing non-Hodgkin lymphoma (NHL).

The study authors, top scientists who the Environmental Protection Agency has used as advisers, said the evidence“supports a compelling link” between exposures to glyphosate-based herbicides and increased risk for NHL.

February 8, 2019: Evidence and Issues – With the high-stakes, first federal Roundup cancer trial fast approaching on Feb. 25, lawyers for Monsanto – and its owner Bayer AG – have laid out a long list of evidence and issuesthey do not want introduced at trial.

Among the things the company does not want presented at trial are the following: Mentions of other litigation against Monsanto; evidence regarding the company’s public relations activities; comparisons to the tobacco industry; information about the company’s association with “controversial products” such as Agent Orange and PCBs; information about Monsanto’s “wealth”; and information about “Bayer’s role in World War II.”

None of the evidence Monsanto wants excluded at trial has any bearing on whether or not its herbicides caused the plaintiff’s non-Hodgkin lymphoma, the company’s attorneys told the judge.

The plaintiffs’ attorneys have their own list of things they’d rather not be presented to the jury. Among them: Information about attorney advertising for plaintiffs in the Roundup litigation; the “unrelated medical history” of plaintiff Edwin Hardeman; and evidence about foreign regulatory decisions.

Meanwhile, on Feb. 6 both parties filed a “joint trial exhibit list” detailing each and every piece of evidence they plan to present – or may present – to the jury. The list runs 314 pages and includes a host of internal Monsanto documents as well as regulatory documents, scientific studies, and reports by various expert witnesses.

Bayer added another member to the Monsanto Roundup defense team. On Feb. 8, Shook Hardy & Bacon attorney James Shepherd filed his notice of appearance in the Roundup Products Liability Litigation in federal court. Shepherd has defended Bayer against various lawsuits, including claims alleging injuries tied to Bayer’s cholesterol-lowering medication, and allegations of harm from an intrauterine device (IUD).

As well, both sides recently filed a joint list of exhibits each plan to introduce at trial, including depositions, photographs, emails, regulatory documents, scientific studies and more. The list runs 320 pages.

Judge Vince Chhabria indicated in a Feb. 4 hearing that if the jury finds for the plaintiff in the first phase of the bifurcated trial, meaning if the jury determines that Monsanto’s herbicides were a cause of Edwin Hardeman’s cancer, the second phase of the trial will begin the following day. That second phase will focus on Monsanto’s conduct and any potential punitive damages.

All the related documents can be found on our Monsanto Papers page.

January 29, 2019 – We are less than a month away from the start of the first federal trialin the Roundup products liability litigation, and both sides are loading up the court files with scores of pleadings and exhibits. Included in recent filings are several noteworthy internal Monsanto documents. A few are highlighted below. A more complete posting of the court documents can be found on the main USRTK Monsanto Papers page.

  • Get up and shout for glyphosate:Internal Monsanto emails written in 1999 detail the company’s “scientific outreach” work and efforts to develop a global network of “outside scientific experts who are influential at driving science, regulators, public opinion, etc.” The plan called for having people “directly or indirectly/behind the scenes” working on Monsanto’s behalf. The company wanted “people to get up and shout Glyphosate is Non-toxic,” according to the email thread. For the plan to work they “may have to divorce Monsanto from direct association with the expert or we will waste the $1,000/day these guys are charging.”
  • This intriguing email thread from January 2015 discusses a retired Monsanto plant worker who reported to the company that he had been diagnosed with Hairy cell leukemia, a type of non-Hodgkin lymphoma. He wrote that he had “irregular blood counts” before he retired, and he wondered if his diagnosis was “related to working around all of the chemicals” at the company’s plant. The company’s “adverse effects team” reviewed his case and a Monsanto “health nurse” told him they had not found an association between his “medical condition” and the chemicals at the plant where he worked. They also indicate in the email thread that there is no need to notify EPA. One email dated Nov. 21, 2014 written broadly to “Monsanto Employees” from the adverse effects team lets employees know that although the EPA requires the reporting of information about adverse effects of pesticide products such as injury or health problems, employees should not notify EPA themselves if they become aware of any such problems. Employees should “immediately forward” information to the company’s adverse effects unit instead.
  • Did Monsanto Collaborate on AHS Study? Monsanto and new owner Bayer repeatedly have sought to counter scores of studies showing ties between glyphosate herbicides and cancer by touting one study – an update to the U.S. government-backed Agricultural Health Study (AHS) that found no ties between glyphosate and non-Hodgkin lymphoma. The AHS is a foundational part of the company’s defense in the Roundup products liability litigation. But there have been many questions about the timing of the AHS update, which raced through peer review much faster than is normal for papers in peer-reviewed journals. The update was released to the public on the morning of Nov. 9, 2017 – the same day as a critical court hearing in the Roundup cancer litigation. It was cited by Monsanto at that hearing as a “significant development” and a reason to delay proceedings. A May 11, 2015 internal Monsanto “Proposal for Post-IARC Meeting Scientific Projects” discusses the potential for an “AHS Collaboration.” Monsanto called the proposal “most appealing” as it would appear that Monsanto was “somewhat distanced” from the study.
  • Despite much talk about “800 studies” showing the safety of glyphosate Monsanto acknowledged in a court filingthat it “has not identified any 12 month or longer chronic toxicity studies that it has conducted on glyphosate containing formulations that were available for sale in the United States of as June 29, 2017.”

Separate news of note –Plaintiffs’ expert scientific witness Dr. Christopher Portier will not be coming to San Francisco to testify at the trial as planned. Portier suffered a heart attack while traveling in Australia earlier in January and is still recovering.

And in a move welcomed by plaintiffs’ attorneys, U.S. Judge Vincent Chhabria on Monday said that he may allow some evidence about Monsanto’s alleged ghostwriting of scientific studies into the first phase of the upcoming trial despite Monsanto’s efforts to keep the evidence out until and unless a second phase of the trial occurs. Evidence of Monsanto’s efforts to influence regulators and scientists may also be allowed in the first phase, Chhabria said. Chhabria has ordered that the trial be bifurcated, meaning that the first phase will deal only with the allegation of causation. If the jury does find that Monsanto’s herbicides caused plaintiff Edwin Hardeman’s cancer, then a second phase would be held to explore Monsanto’s conduct.

January 18, 2019 —Time flies when a big case approaches.U.S. District Judge Vince Chhabria has set an evidentiary hearing for Jan. 28 at 9 a.m. local time in federal court in San Francisco to be followed by a “Daubert” hearing that day at 2 p.m. The hearings are to consider evidence and experts that will be key to the first-ever federal trial taking up claims that Monsanto’s glyphosate-based herbicides can cause cancer and Monsanto has covered up the risks. Video recording of the proceedings is being allowed.

Chhabria has taken the unusual step of agreeing with a request from the attorneys representing Monsanto and its owner Bayer AG to bifurcate the trial. The first phase, per Monsanto’s request, will deal only with evidence relevant causation – if its products caused the cancer suffered by plaintiff Edwin Hardeman. Evidence of Monsanto efforts to manipulate regulators and the scientific literature and “ghost write” various articles would only be presented in a second phase of the trial if jurors in the first phase find the herbicides were a substantial factor in causing Hardeman’s cancer.

The parties are in disagreement over exactly what evidence should be allowed in the causation phase.

Monsanto specifically has asked the judge to exclude from evidence:

  • A 2001 email detailing internal discussions regarding an independent epidemiology study published that year.
  • A 2015 internal email regarding the company’s relationship with and funding of the American Council on Science and Health, a group that purports to be independent of industry as its promotes safety messaging about glyphosate products.
  • A 2015 email chain including internal commentary by Monsanto scientist Bill Heydens about the role surfactants play in glyphosate formulated products.

For point 1, attorneys for Hardeman have said they do not intend to try to introduce the evidence “unless the door is opened by Monsanto.”

For point 2, they also said they do not intend to introduce the ACSH correspondence “unless Monsanto in any way relies on the ACSH’s junk science positions regarding the carcinogenicity” of glyphosate-based formulations “or attacks on IARC’s classification of glyphosate.”

As for the 2015 Heydens email chain, attorney’s for Hardeman argue the correspondence is illuminating to the causation question. Heydens’ email refers to the results of a 2010 study referred to as George et al., which found a statistically significant increase of tumors on the skin of rodents following exposure to a formulated Roundup product. The study is one relied upon by plaintiffs’ general causation experts.

The letter brief laying out the positions by opposing parties is here.

In a separate issue – the ongoing government shut-down could impact the Feb. 25 trial date for the Hardeman case. Judge Chhabria has said that he does not intend to ask jurors to sit in a trial without being paid.

January 16, 2019 – (UPDATED Feb. 9, 2019) New documents filed in federal court are threatening to expose Reuters news reporter Kate Kelland for acting as Monsanto’s puppet in driving a false narrative about cancer scientist Aaron Blair and the International Agency for Research on Cancer (IARC) that classified glyphosate as a probable carcinogen.

In 2017, Kelland authored a controversial story attributed to “court documents,” that actually appears to have been fed to her by a Monsanto executive who helpfully provided several key points the company wanted made. The documents Kelland cited were not filed in court, and not publicly available at the time she wrote her story but writing that her story was based on court documents allowed her to avoid disclosing Monsanto’s role in driving the story.

When the story came out, it portrayed cancer scientist Aaron Blair as hiding “important information” that found no links between glyphosate and cancer from IARC. Kelland wrote that Blair “said the data would have altered IARC’s analysis” even though a review of the full deposition shows that Blair did not say that.

Kelland provided no link to the documents she cited, making it impossible for readers to see for themselves how far she veered from accuracy.

The story was picked up by media outlets around the world, and promoted by Monsanto and chemical industry allies. Google advertisements were even purchased promoting the story.

Now, new information revealed in court filings indicates just how heavy Monsanto’s hand was in pushing the narrative. In a January 15 court filing, Plaintiff’s attorneys cited internal Monsanto correspondence dated April 27, 2017 they say show that Monsanto executive Sam Murphey sent the desired narrative to Kelland with a slide deck of talking points and portions of the Blair deposition that was not filed in court. The attorneys said the correspondence shows the Monsanto executive asking her to publish an article accusing Dr. Blair of deceiving IARC.

Monsanto and Bayer lawyers have tried to keep the correspondence with Kelland sealed from public view, and some of the emails between the Reuters reporter and Monsanto still have not been released.

Plaintiff’s attorneys also write in their letter brief that Monsanto’s internal documents show Kelland was seen as a a key media contact in their efforts to discredit IARC.

There is nothing inherently wrong in receiving story suggestions that benefit companies from the companies themselves. It happens all the time. But reporters must be diligent in presenting facts, not corporate propaganda.

This story was used by Monsanto to attack IARC on multiple fronts, including an effort by Monsanto to get Congress to strip funding from IARC.

At the very least, Kelland should have been honest with readers and acknowledged that Monsanto was her source. Reuters owes the world – and IARC – an apology.For more background on this topic, see this article.

January 10, 2019 –For those wanting more details on the reasoning and ramifications of a federal court judge’s decision to limit large volumes of evidence related to Monsanto’s internal communications and conduct from the first federal trial, this transcriptof the Jan. 4 hearing on the matter is informative.

Here is an exchange between plaintiff’s attorney Brent Wisner and Judge Vince Chhabria that illustrates the frustration and fear plaintiff’s attorneys have over the limitation of their evidence to direct causation, with much of the evidence dealing with Monsanto’s conduct and internal communications restricted. The judge has said that evidence would only come in at a second phase of the trial if jurors in a first phase find that Monsanto’s Roundup products directly contributed substantially to the plaintiff’s cancer.

  1. WISNER: Here is a great example: Monsanto’s chief toxicologist,

Donna Farmer, she writes in an e-mail: We can’t say Roundup

doesn’t cause cancer. We have not done the necessary testing

on the formulated product.

THE COURT: That would not come in — my gut reaction

is that that would not come in in the first phase.

  1. WISNER: So that is literally Monsanto’s chief

toxicologist — a person who has more knowledge about Roundup

than anyone else in the world — saying —

THE COURT: The question is whether it causes cancer,

not whether — not Farmer’s opinion on what Monsanto can say or

not say. It is about what the science actually shows.

  1. WISNER: Sure. She is literally talking about the

science that they didn’t do.

THE COURT: My gut is that that is actually really a

fairly easy question, and the answer to that fairly easy

question is that that doesn’t come in in the first phase.”

Stay tuned….

January 9, 2019 – The first federal trial in the Roundup Products Liability Litigation may still be more than a month away, but the calendar is busy for attorneys on both sides. See below the schedule set by the judge in an order filed yesterday:

PRETRIAL ORDER NO. 63: UPCOMING DEADLINES FOR BELLWETHER TRIAL.

  • Evidentiary Hearing set for 1/28/2019 09:00 AM in San Francisco, Courtroom 04, 17th Floor before Judge Vince Chhabria.
  • Dr. Shustov’s Daubert Hearing set for 1/28/2019 02:00 PM in San Francisco, Courtroom 04, 17th Floor before Judge Vince Chhabria.
  • Jury Selection to complete the supplemental questionnaire in the jury office (not on the record or in court) set for 2/13/2019 08:30 AM in San Francisco.
  • Jury Selection (hardship and challenge cause hearing with counsel and Court) set for 2/15/2019 10:30 AM in San Francisco, Courtroom 04, 17th Floor before Judge Vince Chhabria.

January 7, 2019 – The new year is off to a strong start for Monsanto as the Bayer unit heads into its second trial over allegations that its Roundup and other glyphosate-based herbicides cause cancer. In aJan. 3 ruling, U.S. District Judge Vince Chhabria rejected arguments by attorneys representing cancer victims and sided with Monsanto in deciding to block jurors from hearing a large portion of evidence that plaintiffs say shows efforts by Monsanto to manipulate and influence regulators in a first phase of the trial. In deciding to bifurcate the trial, Chhabria said that jurors will only hear such evidence if they first agree that Monsanto’s weed killer did significantly contribute to causing the plaintiff’s non-Hodgkin lymphoma (NHL).

“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 judge’s order states.

He did provide a caveat, writing, “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.”

Jury selection is set to begin Feb. 20 with the trial set to get underway on Feb. 25 in San Francisco. The case is Edwin Hardeman v. Monsanto.

Meanwhile, plaintiff Lee Johnson, who was the first cancer victim to take Monsanto to trial, winning a unanimous jury verdict against the company in August, has also won his request to the 1st District Court of Appeals for speedy handling of Monsanto’s appeal of that jury award. Monsanto opposed Johnson’s request for “calendar preference,” but the court granted the request on Dec. 27, giving Monsanto 60 days to file its opening brief.

December 20, 2018 – U.S. District Judge Vince Chhabria said on Thursday that he would not rule until January on the disputed issue of bifurcation of the first federal trial, which is set to get underway in February. Attorneys for plaintiffs and for Monsanto were ordered to file all of their experts’ reports by Friday, December 21 to help Chhabria in his decision.

December 18, 2018 –Monsanto/Bayer lawyers responded Friday to de-designation requests concerning several hundred internal Monsanto records, seeking to keep most of them sealed in opposition to requests from plaintiffs’ attorneys. Company lawyers did agree to the release of some internal documents, which could be made public this week.

In the meantime both sides are awaiting a ruling from U.S. District Court Judge Vince Chhabria on a motion made by Monsanto attorneys to reverse bifurcate the first federal court trial in the mass Roundup cancer litigation. That trial is set to begin Feb. 25 and is considered a bellwether that will set the stage for how and if other cases proceed and/or are resolved.

Monsanto would like the federal court trials to be conducted in two phases—a first phase focused on medical causation – did the company’s herbicides cause the specific plaintiff’s cancer – and a second phase to address liability only if plaintiffs prevail in the first phase.

The issues of causation and compensatory damages are “separate and distinct from Monsanto’s alleged negligence and company conduct and would involve testimony from different witnesses,” the company argued. Bifurcation would avoid “undue delay in resolving this case…”

Plaintiffs’ attorneys object to the bifurcation saying the idea is “unheard of” in modern multi district litigation (MDL), which is what Chhabria is overseeing. More than 600 lawsuits are pending in his court alleging that Monsanto’s glyphosate-based herbicides caused plaintiffs’ cancers, and Monsanto failed to warn consumers of the dangers of its products.

“It is simply never done, and for good reason,” plaintiffs’ attorneys argued in a Dec. 13 court filing. “The purpose of a bellwether trial is to allow each side to test their theories and evidence against a real-world jury and, hopefully, learn important information about the strengths and weaknesses of the case to inform collective resolution. Imposing a one-sided procedural hurdle—one that would be a de facto outlier for the 10,000 cases proceeding around the country—does not accomplish that goal. It renders any verdict in this MDL, no matter which side prevails, unhelpful.” The next hearing in the case is set for Jan. 4.

December 14, 2018 – Plaintiff Seeks Expedited Handling of Monsanto’s Appeal as His Health Deteriorates

Dewayne “Lee” Johnson, the first plaintiff to take Monsanto to trial alleging the company’s glyphosate-based herbicides cause cancer, is scheduled for surgery today to remove a new cancerous growth on one of his arms.

Johnson’s health has been deteriorating since the trial’s conclusion in August and an interruption in treatment due to a temporary lapse in insurance coverage. He has not received any funds from the litigation due to the appeals Monsanto instigated after Johnson court victory. Monsanto is appealing the verdict of $78 million, which was reduced by the trial judge from the jury’s award of $289 million.

Johnson filed notice with the court in October that he would accept the reduced award. But because Monsanto has appealed, Johnson’s attorneys have also filed an appeal, seeking to reinstate the jury award.

The California State Court of Appeals, 1st Appellate District, case number is A155940. Johnson’s attorneys are seeking expedited handling of the appeal and say they hope to have briefings completed by April. “There is… a strong likelihood that Mr. Johnson is going to die in 2019,” the plaintiff’s motion states. Johnson, who plans to restart immunotherapy after his surgery, is not necessarily in agreement.

“I hate to think about dying,” he said in an interview published in Time Magazine. “Even when I feel like I’m dying, I just make myself move past it. I feel like you can’t give in to it, the diagnosis, the disease, because then you really are dead. I don’t mess around with the death cloud, the dark thoughts, the fears. I’m planning for a good life.”

December 13, 2018 – More Monsanto Shoes (Documents) Set to Drop

The law firm of Baum Hedlund Aristei & Goldman, which partnered with The Miller Firm in notching the historic victory for plaintiff Dewayne Lee Johnson over Monsanto in August, is seeking the de-designation of several hundred pages of internal Monsanto records that were obtained through discovery but have so far been kept sealed.

Baum Hedlund last year released hundreds of other internal Monsanto records that include emails, memos, text messages and other communications that were influential in the unanimous jury verdict finding Monsanto acted with “malice” by not warning customers of scientific concerns about its glyphosate-based herbicides. Jury sources say that those internal records were very influential in their $250 million punitive damage award against Monsanto, which the judge in the case reduced to $39 million for a total award of $78 million.

Attorneys for plaintiffs in two upcoming trials say that Monsanto records that have not been seen publicly before will be part of new evidence they plan to introduce at the trials.

Today is also the deadline for plaintiffs attorneys to respond to Monsanto’s motion to “reverse bifurcate” the Feb. 25 trial set for U.S. District Court in the Northern District of California. (see Dec. 11 entry below for more details)

December 12, 2018 – New Judge Appointed in Pilliod Case

Alameda County Superior Court Judge Ioana Petrou, who has spent more than a year engaged in the Roundup cancer litigation and sat through many days of the presentation of scientific evidence by plaintiffs and defense experts in a federal court hearing in March 2017, is off the case. California Gov. Jerry Brown announced on November 21st that Petrou has been appointed associate justice, Division Three of the First District Court of Appeal.

Judge Winifred Smith has been named to replace Petrou to oversee the case of Pilliod V. Monsanto, which is scheduled to go to trial March 8 in Oakland, California. Smith was appointed by Governor Gray Davis in November 2000, and prior to her appointment, served as deputy assistant attorney general for the Department of Justice in San Francisco.

The Pilliod case will be the third to go to trial in the sweeping Roundup mass tort litigation. Alva Pilliod and his wife Alberta Pilliod, both in their 70s and married for 48 years, allege that their cancers – forms of non-Hodgkin lymphoma – are due to their long exposure to Roundup. Their advanced ages and cancer diagnoses warrant a speedy trial, according to court filings by their attorneys. Monsanto opposed their request for the expedited trial date but Petrou found the couple’s illnesses and ages warranted preference. Alberta has brain cancer while Alva suffers from a cancer that has invaded his pelvis and spine. Alva was diagnosed in 2011 while Alberta was diagnosed in 2015. They used Roundup from roughly the mid -1970s until only a few years ago.

The Pilliod suit echoes others in claiming that “Monsanto led a prolonged campaign of misinformation to convince government agencies, farmers and the general public that Roundup was safe.”

December 11, 2018 – Attorneys Scramble Ahead of Next Trial

With the next trial in the mass Roundup cancer litigation set for Feb. 25 in San Francisco, attorneys for Monsanto and plaintiffs are scrambling to take more than two dozen depositions in the waning weeks of December and into January even as they debate how the trial should be organized.

Monsanto attorneys on Dec. 10 filed a motion to “reverse bifurcate” the next trial, Edwin Hardeman V. Monsanto (3:16-cv-00525). Monsanto wants the jury only to hear evidence focused on specific medical causation first – did its herbicide cause the plaintiff’s cancer – with a second phase that would address Monsanto’s liability and damages only necessary if the jury found in plaintiff’s favor in the first phase. See Monsanto’s argument here. Judge Chhabria granted a request from plaintiff’s attorneys to be allowed until Thursday to file their response.

Edwin Hardeman and his wife spent many years living on a 56-acre, former exotic animal refuge in Sonoma County, California where Hardeman routinely used Roundup products to treat overgrown grasses and weeds since the 1980s. He was diagnosed with B-cell non-Hodgkin lymphoma in February 2015, just a month before the International Agency for Research on Cancer declared glyphosate to be a probable human carcinogen.

Hardeman’s case was selected as the first to be tried in federal court in San Francisco (Northern District of California) in front of Judge Vince Chhabria. Attorney Aimee Wagstaff of Denver, Colorado, is lead plaintiff’s counsel on the case. Attorney Brent Wisner of the Baum Hedlund law firm in Los Angeles, and the lawyer credited with leading the victory in Dewayne Lee Johnson’s historic August victory over Monsanto, had been expected to help try the case but now has another case scheduled to begin in March. That case is Pilliod, et al V. Monsanto in Alameda County Superior Court. See related documents on the Monsanto Papers main page.

Monsanto’s new owner Bayer AG is not content to rely on Monsanto’s trial team that lost the Johnson case and is bringing in its own legal defense team. The Bayer team, which helped the German company win litigation over the Xarelto blood thinner, now includes Pamela Yates and Andrew Solow of Arnold & Porter Kaye Scholer and Brian Stekloff of Wilkinson Walsh Eskovitz.

Hearings on specific causation issues are set in the Hardeman case for Feb. 4, 6, 11, and 13 with jury selection scheduled for Feb. 20. Opening arguments would then begin Feb. 25, according to the current schedule.

December 6, 2018 – Upcoming Monsanto Trial Dates

2/25/2019 – Federal Court – Hardeman

3/18/2019 – CA JCCP – Pilliod (2 plaintiffs)

4/1/2019 – St. Louis City Court – Hall

4/22/2019 – St. Louis County Court – Gordon

5/25/2019 – Federal Court – Stevick or Gebeyehou

9/9/2019 – St. Louis County Court – 4 plaintiffs

1/21/2020 – St. Louis City Court – 10 plaintiffs

3/23/2020 – St. Louis City Court

November 21, 2018 – Lee Johnson interview

Dewayne “Lee” Johnson was the first person to take Monsanto to court alleging that exposure to Roundup herbicide caused him to develop non-Hodgkin lymphoma and that the company covered up the risks. In August 2018, a jury in San Francisco unanimously found that Monsanto had failed to warn about the carcinogenic dangers of Roundup herbicide and related products, and they awarded Johnson $289 million. A judge later reduced that amount to $78 million. Carey Gillam spoke with Johnson about the aftermath of his case in this interview for TIME magazine:I Won a Historic Lawsuit But May Not Get to Keep the Money

 

Challenge eyed to class action plan for Bayer Roundup settlement

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A plan to delay any new Roundup cancer claims for years and shift the key question of whether or not the weed killer causes cancer from a jury to a hand-picked panel of scientists faces potential opposition from some of the plaintiffs’ attorneys who initiated and led the mass tort claims against Roundup maker Monsanto, sources close to the litigation said.

Several members of the lead law firms who won three out of three trials pitting cancer patients against Monsanto are considering challenging the terms of a proposed “class action” settlement negotiated between Monsanto owner Bayer AG and a small team of  lawyers who have not previously been at the forefront of the Roundup litigation, the sources said.

The class action settlement proposal is an element of the sweeping $10 billion Roundup litigation settlement Bayer announced June 24.

In each of the trials held to date, juries found that the weight of scientific evidence proved that Roundup exposure caused the plaintiffs to develop non-Hodgkin lymphoma (NHL) and that Monsanto covered up the risks. But under the proposal that question would go to a five-member “science panel,” not a jury.

“It’s basically depriving a plaintiff of their constitutional right to a jury trial,” said one source close to the litigation.

The proposed class settlement would apply to anyone exposed to Roundup who had not filed a lawsuit or retained a lawyer as of June 24, 2020, regardless of whether or not that person already had been diagnosed with cancer they believe was due to Roundup exposure.

The plan was put together by Bayer and the law firms of Lieff Cabraser Heimann & Bernstein; Audet & Partners; The Dugan Law Firm; and lawyer Samuel Issacharoff, Reiss Professor of Constitutional Law at New York University School of Law.

The agreement was reached after nearly one year of “unrelenting efforts” of negotiations, lawyer Elizabeth Cabraser said in a declaration to the court supporting the proposed class settlement.

It would set a “standstill period” in which plaintiffs in the class cannot file new litigation related to Roundup. And it calls for class members to release “any claims against Monsanto for punitive damages and for medical monitoring related to Roundup exposure and NHL.”

Notably, the plan states that rather than go forward with another jury trial, a panel of scientists will first be set up to determine the “right answer” to “the threshold question” of whether or not there is a causal link between Roundup and NHL.

The plan calls for Bayer to pay up to $150 million for the fees and costs of the attorneys’ involved and “class representative service awards” up to $25,000 to each or a total of $100,000.

Overall, Bayer said it would set aside $1.25 billion for the arrangement. The money would be used to compensate class members diagnosed with NHL for the “effects of the delay” in litigation, and to fund research into the diagnosis and treatment of NHL, among other things.

A motion seeking preliminary approval of the class settlement was filed Wednesday with the U.S. District Court for the Northern District of California to be handled by Judge Vince Chhabria. Chhabria has been overseeing numerous Roundup lawsuits that have been bundled together as multidistrict litigation. In shepherding a large number of the lawsuits already filed, Chhabria oversaw one of the Roundup trials, as well as what is known as a “Daubert” hearing, in which he heard days of scientific testimony from both sides and then decided there was sufficient scientific evidence of causation for the litigation to proceed.

The class settlement proposal was negotiated separately from the main settlement made with the lead law firms.

In the main settlement, Bayer agreed to provide $8.8 billion to $9.6 billion to resolve roughly 75 percent of the roughly 125,000 filed and unfiled claims brought by plaintiffs who blame exposure to Monsanto’s Roundup for their development of non-Hodgkin lymphoma.  Lawyers representing more than 20,000 additional plaintiffs say they have not agreed to settle with Bayer and those lawsuits are expected to continue to work their way through the court system.

Even though Monsanto lost each of the three trials held to date, Bayer maintain the jury decisions were flawed and based on emotion and not sound science.

Science Panel Selection

Bayer and the lawyers for the proposed class would work together to select the five scientists to sit on what would be a “neutral, independent” panel, according to the plan.  If they cannot agree on the make-up of the panel then each side will choose two members and those four members will choose the fifth.

No scientist who acted as an expert in the federal multidistrict Roundup litigation will be allowed to be on the panel. Notably, neither will anyone who “communicated with any expert” in the litigation about the subject matter.

The panel would have four years to review scientific evidence but can petition for an extension of time if necessary. The determination would be binding on both sides, the plan states. If the panel determines there is a causal link between Roundup and NHL, plaintiffs can go forward to seek trials of their individual claims.

“Knowledge is power and this Settlement empowers class members to hold Monsanto accountable for their injuries if and when the Science Panel determines that general causation is satisfied,” the plan states.

The filing with the federal court requests a preliminary approval hearing within 30 days.

Bayer settles U.S. Roundup, dicamba and PCB litigation for more than $10 billion

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In an expensive clean-up of Monsanto litigation messes, Bayer AG said Wednesday that it will pay out more than $10 billion to settle tens of thousands of U.S. claims brought against Monsanto over its Roundup herbicide, as well as $400 million to resolve lawsuits over Monsanto’s dicamba herbicide and $650 million for PCB pollution claims.

The resolutions come two years after Bayer bought Monsanto for $63 billion and almost immediately saw share prices plummet due to the Roundup liability.

Bayer announced that it will pay $10.1 billion to $10.9 billion total to resolve roughly 75 percent of the claims by an estimated 125,000 people who allege exposure to Monsanto’s Roundup weed killers caused them to develop non-Hodgkin lymphoma. The deal includes plaintiffs who have retained attorneys with the intent to sue but whose cases have not yet been filed, Bayer said.  Within that total, a payment of $8.8 billion to $9.6 billion will resolve the current litigation and $1.25 billion is being set aside to support potential future litigation, the company said.

The plaintiffs included in the settlement are those signed with the law firms that have been leading the Roundup federal multi-district litigation (MDL) and include The Miller Firm of Virginia, the Baum Hedlund Aristei & Goldman firm of Los Angeles and the Andrus Wagstaff firm of Denver, Colorado.

“After years of hard fought litigation and a year of intense mediation I am glad to see our clients will now be compensated,” said Mike Miller, of the Miller law firm.

The Miller firm and the Baum Hedlund firm worked together to win the first case to go to trial, that of California groundskeeper Anthony “Lee” Johnson. Andrus Wagstaff won the second trial and The Miller Firm won the third case to go to trial. In all, the three trials resulted in jury verdicts totaling more than $2.3 billion, though the trial judges in each case lowered the verdicts.

The juries in all three trials found that Monsanto’s glyphosate herbicides, such as Roundup, caused non-Hodgkin lymphoma and that Monsanto covered up the risks and failed to warns users.

Each of the three trial verdicts are going through the appeals process now and Bayer said the plaintiffs in those cases are not included in the settlement.

Bayer said future Roundup claims will be part of a class agreement subject to approval by Judge Vince Chhabria of the U.S. District Court for the Northern District of California, who ordered the year-long mediation process that led to the settlement.

The agreement would take any future findings on cancer claims out of the hands of  juries, Bayer said. Instead, there will be the creation of an independent “Class Science Panel.” The Class Science Panel will determine whether Roundup can cause non-Hodgkin lymphoma, and if so, at what minimum exposure levels.  Both the plaintiffs in the class action and Bayer will be bound by the Class Science Panel’s determination.  If the Class Science Panel determines there is no causal connection between Roundup and non-Hodgkin lymphoma then the class members will be barred from claiming otherwise in any future litigation against Bayer.

Bayer said the Class Science Panel’s determination is expected to take several years and class members will not be permitted to proceed with Roundup claims prior to that determination. They also cannot seek punitive damages, Bayer said.

“The Roundup™ agreements are designed as a constructive and reasonable resolution to a unique litigation,” said Kenneth R. Feinberg, the court-appointed mediator for the settlement talks.

Even as they announced the settlement, Bayer officials continued to deny Monsanto’s glyphosate herbicides cause cancer.

“The extensive body of science indicates that Roundup does not cause cancer, and therefore, is not responsible for the illnesses alleged in this litigation,” Bayer CEO Werner Baumann said in a statement.

Dicamba Deal

Bayer also announced a mass tort agreement to settle U.S. dicamba drift litigation, which involves claims from farmers that use of dicamba herbicides developed by Monsanto and BASF to be sprayed over dicamba-tolerant crops developed by Monsanto caused widespread crop loss and injury.

In a trial earlier this year, Monsanto was ordered to pay $265 million to a Missouri peach farmer for dicamba drift damage to his orchard.

More than 100 other farmers have made similar legal claims. Bayer said it will pay up to a total of $400 million to resolve the multi-district dicamba litigation that is pending in the U.S. District Court for the Eastern District of Missouri, with claims for the 2015-2020 crop years. Claimants will be required to provide proof of damage to crop yields and evidence that it was due to dicamba in order to collect. The company expects a contribution from its co-defendant, BASF, towards this settlement.

The settlement will provide “much-needed resources for farmers” who have suffered crop losses due to drifting dicamba herbicides, said lawyer Joseph Peiffer of the Peiffer Wolf law firm, which represents farmers with dicamba claims.

“The settlement announced today is an important step to making things right for the farmers who just want to be able to put food on the table of America and the world,” Peiffer said.

Earlier this month a federal court ruled that the Environmental Protection Agency had violated the law when it approved dicamba herbicides made by Monsanto, BASF and Corteva Agriscience. The court found the EPA ignored the risks of dicamba damage.

PCB Pollution Settlement 

Bayer also announced a series of agreements that resolve cases the company said represent most of its  exposure to litigation involving water contamination by PCBs, which Monsanto manufactured until  1977. One agreement establishes a class that includes all local governments with EPA permits involving water discharges impaired by PCBs. Bayer said it will pay a total of approximately $650 million to the class, which will be subject to court approval.

Additionally, Bayer said it has entered into separate agreements with the Attorneys-General of New Mexico, Washington, and the District of Columbia to resolve PCB claims. For these agreements, which are separate from the class, Bayer will make payments totally approximately $170 million.

Bayer said the potential cash outflow will not exceed $5 billion in 2020 and $5 billion in 2021 with the remaining balance to be paid in 2022 or later.

Roundup cancer attorney pleads guilty to extortion attempt

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A Virginia lawyer who helped represent the first Roundup cancer plaintiff to take Monsanto to trial pleaded guilty on Friday to trying to extort $200 million from a chemical compound supplier to Monsanto.

Timothy Litzenburg, 38, admitted to a scheme in which he and another lawyer threatened to inflict substantial “financial and reputational harm” on the supplier unless that company paid the two attorneys $200 million disguised as a “consulting agreement.”

According to the U.S. Department of Justice, Litzenburg allegedly told the company that if they paid the money, he was willing to “take a dive” during a deposition, intentionally undermining the prospects for future plaintiffs to try to sue.

Litzenburg was charged with one count each of attempted extortion, conspiracy and transmission of interstate communications with intent to extort. He pleaded guilty to one count of transmitting interstate communications with the intent to extort.

Lawyer Daniel Kincheloe, 41, pleaded guilty to the same charge for participating in the scheme.  The men are scheduled to be sentenced on Sept. 18 in U.S. District Court for the Western District of Virginia.

“This is a case where two attorneys blew well past the line of aggressive advocacy and crossed deep into the territory of illegal extortion, in a brazen attempt to enrich themselves by extracting millions of dollars from a multinational company,” Assistant Attorney General Brian A. Benczkowski said in a statement. He said that the plea shows that “when crimes are committed, members of the bar, like all members of the public, will be held accountable for their actions.”

Litzenburg was one of the attorneys for Dewayne “Lee” Johnson leading up to Johnson’s 2018 trial against Monsanto, which resulted in a $289 million jury award in Johnson’s favor. (The judge in the case lowered the verdict and the case is currently under appeal.)

The trial was the first of three that have taken place against Monsanto over allegations that the company’s glyphosate-based herbicides such as Roundup cause non-Hodgkin lymphoma. Monsanto, and its German owner Bayer AG, have lost all three trials to date but are appealing the verdicts.

Though Litzenburg had helped prepare Johnson for trial, he was not allowed to participate during the actual event because of concerns about his behavior held by The Miller Firm, which was his employer at the time.

The Miller firm subsequently fired Litzenburg and filed a lawsuit in early 2019 alleging Litzenburg engaged in self-dealing, and “disloyal and erratic conduct.” Litzenburg responded with a counter-claim. The parties  negotiated a confidential settlement.

The criminal complaint against Litzenburg did not name the company Litzenburg tried to extort, but said that he contacted the company in September of  2019 year stating that he was preparing a lawsuit that would allege the company supplied chemical compounds used by Monsanto to create Roundup and that the company knew the ingredients were carcinogenic but had failed to warn the public.

According to the federal charges, Litzenburg told a lawyer for the company he was trying to extort that the company should enter into a “consulting arrangement” with him so as to create a  conflict of interest that would prevent him from filing the threatened litigation.

Litzenburg wrote in the email that the $200 million consulting agreement for himself and an associate was “a very reasonable price,” according to the criminal complaint.

Federal investigators recorded a phone call with Litzenburg discussing the $200 million he was seeking, the complaint states. Litzenburg was allegedly recorded as saying: “The way that I guess you guys will think about it and we’ve thought about it too is savings for your side. I don’t think if this gets filed and turns into mass tort, even if you guys win cases and drive value down… I don’t think there’s any way you get out of it for less than a billion dollars. And so, you know, to me, uh, this is a fire sale price that you guys should consider…”

Litzenburg claimed to be representing roughly 1,000 clients suing Monsanto over Roundup cancer causation allegations at the time of his arrest last year.

Big Ag groups argue court cannot tell EPA when to ban dicamba

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The heaviest of Big Ag’s heavy hitters told a federal court it should not try to stop GMO cotton and soybean farmers from using illegal dicamba weed killers through the end of July, despite the court’s order earlier this month for an immediate ban.

Six national trade associations, all of which have long-standing financial ties to Monsanto and the other companies selling the dicamba products in question,  filed a brief on Wednesday with the U.S. Court of Appeals for the Ninth Circuit urging the court not to try to interfere with the Environmental Protection Agency’s (EPA) announcement that farmers could continue to use the dicamba products through July 31.

They also asked the court not to hold the EPA in contempt as has been requested by the groups that won the June 3 court order issuing the ban.

“America’s soybean and cotton growers would risk severe financial harm if prevented from using Dicamba Products this growing season,” states the brief filed by the American Farm Bureau Federation, American Soybean Association, National Cotton Council of America, National Association of Wheat Growers, National Corn Growers Association, and National Sorghum Producers.

Separately, CropLife America, an influential lobbyist for the agrichemical industry, filed a brief  stating it wanted to provide “Helpful Information to the Court.” CropLife stated in the filing that the court has no authority over how the EPA proceeds to cancel the use of pesticide products such as dicamba weed killers.

The moves are but the latest in a dramatic flurry of events that followed the Ninth Circuit ruling, which found that the EPA violated the law when it approved dicamba products developed by Monsanto – owned by Bayer AG, as well as products sold by BASF, and DuPont, owned by Corteva Inc.

The court ordered an immediate ban on use of each of the companies’ products, finding that the EPA “substantially understated the risks” those products pose to farmers growing crops other than genetically engineered cotton and soy.

The EPA appeared to flout the order, however, when it told the cotton and soy farmers they could continue to spray the herbicides in question through July 31.

The Center for Food Safety (CFS) and other groups that originally took the EPA to court over the matter went back to court last week, demanding that the 9th Circuit hold the EPA in contempt. The court is now considering that motion.

“EPA and the pesticide companies have tried to confuse the issue and try to intimidate the Court,” said George Kimbrell, CFS legal director and counsel for the petitioners. “The Court held the product uses unlawful and EPA’s manipulations cannot change that.”

The order banning the company’s dicamba products has triggered an uproar in farm country because many soybean and cotton farmers planted millions of acres of genetically altered dicamba-tolerant crops developed by Monsanto with the intent of treating weeds in those fields with the dicamba herbicides made by the three companies. The crops tolerate the dicamba while the weeds die.

The farm lobby groups said in their brief that 64 million acres were planted with the dicamba-tolerant seeds this season. They said if those farmers cannot spray over their fields with the dicamba products they will be “largely defenseless against weeds resistant to other herbicides, causing
potentially significant financial consequences from yield losses.”

When Monsanto, BASF and DuPont/Corteva rolled out their dicamba herbicides a few years ago they  claimed the products would not volatize and drift into neighboring fields as older versions of dicamba weed killing products were known to do. But those assurances proved false amid widespread complaints of dicamba drift damage.

More than one million acres of crops not genetically engineered to tolerate dicamba were reported damaged last year in 18 states, the federal court noted in its ruling.

“The EPA’s mission is to protect human health and the environment…” said National Family Farm Coalition board president Jim Goodman. “Their contempt for this mission could not be more clearly expressed than their flagrant disregard of the Ninth Circuit Court of Appeals’ ruling to stop over-the-top applications of dicamba immediately to prevent millions of acres of farmers’ crops from being destroyed.”

In February, a Missouri jury ordered Bayer and BASF to pay a peach farmer $15 million in compensatory damages and $250 million in punitive damages for dicamba damage to the farmer’s orchards. The jury concluded that  Monsanto and BASF conspired in actions they knew would lead to widespread crop damage because they expected it would increase their own profits

Panicked chemical giants seek leeway in court ban on their weed killers

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Citing an “emergency,” chemical giants BASF and DuPont have asked a federal court to allow them to intervene in a case in which the court earlier this month ordered their dicamba herbicides to be immediately banned along with a dicamba product made by Monsanto owner Bayer AG.

The action by the chemical companies follows a June 3 ruling by the U.S. Court of Appeals for the Ninth Circuit that said the Environmental Protection Agency (EPA) had violated the law when it approved the dicamba products developed by Monsanto/Bayer, BASF and DuPont, owned by Corteva Inc.

The court ordered an immediate ban on use of each of the company’s dicamba products, finding that the EPA “substantially understated the risks” of the dicamba herbicides and “failed entirely to acknowledge other risks.”

The EPA flouted that order, however, telling farmers they could continue to spray the herbicides in question through the end of July.

The consortium of farm and consumer groups that originally filed the case against the EPA rushed back to court last week, asking for an emergency order holding the EPA in contempt.  The court gave the EPA until the end of the day Tuesday, June 16, to respond.

Uproar in Farm Country

The order banning the companies’ dicamba products has triggered an uproar in farm country because many soybean and cotton farmers planted millions of acres of dicamba-tolerant crops developed by Monsanto with the intent of treating weeds in those fields with the dicamba herbicides made by the three companies.

The “dicamba crop system” provides for farmers to plant their fields with dicamba-tolerant crops, which they can then spray “over-the-top” with dicamba weed killer. The system has both enriched the companies selling the seeds and chemicals and and helped farmers growing the special dicamba-tolerant cotton and soy deal with stubborn weeds that are resistant to glyphosate-based Roundup products.

But for the large number of farmers who do not plant the genetically engineered dicamba-tolerant crops, widespread use of dicamba herbicides has meant damage and crop losses because dicamba tends to volatize and drift long distances where it can kill crops, trees and shrubs that are not genetically altered to withstand the chemical.

The companies claimed their new versions of dicamba would not volatize and drift as older versions of dicamba weed killing products were known to do. But those assurances proved false amid widespread complaints of dicamba drift damage. More than one million acres of crop damage was reported last year in 18 states, the federal court noted in its ruling.

Many farmers initially celebrated the court ruling and were relieved that their farms and orchards would be spared this summer from the dicamba damage they’ve experienced in prior summers. But the relief was short-lived when the EPA said it would not immediately enforce the court-ordered ban.

In a filing made Friday, BASF pleaded with the court not to enforce an immediate ban and told the court that it will need to close a manufacturing facility in Beaumont, Texas, that currently “operates 24 hours a day nearly continuously through the year” if it is not able to produce its dicamba herbicide brand called Engenia. BASF has spent $370 million in recent years improving the plant and employs 170 people there, the company said.

Noting “significant investments” in its product, BASF also told the court that there is enough of its product currently throughout its “customer channel” to treat 26.7 million acres of soybeans and cotton.  BASF has an additional $44 million worth of the Engenia dicamba product in its possession, enough to treat 6.6 million acres of soybeans and cotton, the company said.

DuPont/Corteva made a similar argument, telling the court in its filing that the ban “directly harms” the company “as well as the many farmers across this country that are in the midst of the growing season.”  It will damage the company’s “reputation” if its herbicide is banned, the company told the court.

Moreover, DuPont/Corteva expects to generate “significant revenues” from the sales of its dicamba herbicide, called FeXapan and will lose that money if the ban is enforced, the company said.

Monsanto was active in the case supporting the EPA approvals prior to the ruling, but both BASF and DuPont asserted wrongly that the court case applied only to Monsanto’s products and not to theirs. The court made it clear, however, that the EPA illegally approved the products made by all three companies.

Led by the Center for Food Safety,  the petition against the EPA was also brought by the National Family Farm Coalition, Center for Biological Diversity, and Pesticide Action Network North America.

In asking the court to find the EPA in contempt, the consortium warned of the crop damage to come if the dicamba products are not banned immediately.

“EPA cannot get away with allowing the spraying of 16 million more pounds of dicamba and resulting damage to millions of acres, as well as significant risks to hundreds of endangered species,” the consortium said in its filing. “Something else is at stake too: the rule of law. The Court must act to prevent injustice and uphold the integrity of the judicial process. And given the blatant
disregard EPA showed for the Court’s decision, Petitioners urge the Court to hold EPA in contempt.”

Dicamba Fact Sheet

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Dicamba (3,6-dichloro-2-methoxybenzoic acid) is a broad-spectrum herbicide first registered in 1967. The herbicide is used on agricultural crops, fallow land, pastures, turfgrass and rangeland. Dicamba is also registered for non-agricultural uses in residential areas and other sites, such as golf courses. At these types of sites, it is primarily used to control broadleaf weeds such as dandelions, chickweed, clover and ground ivy.

Dicamba can be found in liquids, dusts and granule products. There are more than 1,000 products sold in the United States that include dicamba, according to the National Pesticide Information Center.

Dicamba’s mode of action is as an auxin agonist: it produces uncontrollable growth that leads to plant death.

Environmental Concerns 

Older versions of dicamba were known to drift far from where they were applied, and typically were not used widely during warm growing months when they could kill off-target crops or trees.

The Environmental Protection Agency approved the registration of new dicamba formulations in 2016, however, allowing for a new use of – “over-the-top” applications on growing dicamba-tolerant cotton and soybean plants. Scientists warned the new uses would result in dicamba drift damage.

The new uses for dicamba came about because of the development of widespread weed resistance to glyphosate-based herbicides, including the popular Roundup brand, introduced by Monsanto in the 1970s. In the 1990s, Monsanto introduced glyphosate-tolerant crops, and encouraged famers to use its “Roundup Ready” cropping systems. Farmers could plant Monsanto’s genetically engineered glyphosate-tolerant soybeans, corn, cotton and other crops, and then spray glyphosate herbicides such as Roundup directly over the top of the growing crops without killing them. The system made weed management easier for farmers as they could spray the chemicals directly over their entire fields during the growing season, wiping out weeds that competed with the crops for moisture and soil nutrients.

The popularity of the Roundup Ready system led to a surge in weed resistance, however, leaving farmers with fields of hardy weeds that would no longer die when sprayed with glyphosate.

In 2011 Monsanto announced that glyphosate, had been “relied on too long by itself” and said it planned to collaborate with BASF and develop a cropping system of genetically engineered crops that would tolerate being sprayed with dicamba. It said it would introduce a new type of dicamba herbicide that would not drift far from fields where it was sprayed.

Since the introduction of the new system, complaints about dicamba drift damage have surged in several farm states, including hundreds of complaints from Illinois, Indiana, Iowa, Missouri and Arkansas.

In a report dated Nov. 1, 2017, the EPA said it had tallied 2,708 official dicamba-related crop injury investigations (as reported by state departments of agriculture). The agency said there were more than 3.6 million acres of soybeans impacted at that time. Other impacted crops were tomatoes, watermelon, cantaloupe, vineyards, pumpkins, vegetables, tobacco, residential gardens, trees and shrubs

In July 2017, the Missouri Department of Agriculture temporarily issued a “Stop Sale, Use or Removal Order,” on all dicamba products in Missouri.  The state lifted the order in September 2017.

These are some dicamba products:

On Oct. 31, 2018, the U.S. Environmental Protection Agency (EPA) announced an extension of Engenia, XtendiMax and FeXapan registrations through 2020 for “over-the-top” use in dicamba-tolerant cotton and soybean fields. EPA said it had enhanced the previous labels and put in place additional safeguards in an effort to increase the success and safe use of the product in the field.

The two-year registration is valid through Dec. 20, 2020. The EPA has stated the following provisions:

  • Only certified applicators may apply dicamba over-the-top (those working under the supervision of a certified applicator may no longer make applications)
  • Prohibit over-the-top application of dicamba on soybeans 45 days after planting or up until the R1 growth stage (first bloom), whichever comes first
  • Prohibit over-the-top application of dicamba on cotton 60 days after planting
  • For cotton, limit the number of over-the-top applications from four to two
  • For soybeans, the number of over-the-top applications remains at two
  • Applications will be allowed only from one hour after sunrise to two hours before sunset
  • In counties where endangered species may exist, the downwind buffer will remain at 110 feet and there will be a new 57-foot buffer around the other sides of the field (the 110-foot downwind buffer applies to all applications, not just in counties where endangered species may exist)
  • Enhanced tank clean-out instructions for the entire system
  • Enhanced label to improve applicator awareness on the impact of low pH on the potential volatility of dicamba
  • Label clean up and consistency to improve compliance and enforceability

U.S. Court of Appeals 9th Circuit Ruling 

On June 3, 2020. the U.S. Court of Appeals for the Ninth Circuit said the Environmental Protection Agency had violated the law in approving dicamba herbicides make by Bayer, BASF and Corteva Agrisciences. The court overturned the agency’s approval of the popular dicamba-based herbicides made by the three chemical giants. The ruling made it illegal for farmers to continue to use the product.

But the EPA flouted the court ruling, issuing a notice on June 8 that said growers could continue to use the companies’ dicamba herbicides until July 31, despite the fact that the court specifically said in its order that it wanted no delay in vacating those approvals. The court cited damage done by dicamba use in past summers to millions of acres of crops, orchards and vegetable plots across U.S. farm country.

On June 11, 2020, the petitioners in the case filed an emergency motion seeking to enforce the court order and to hold the EPA in contempt.

More details can be found here. 

Food Residues 

Just as glyphosate applications in farm fields have been found to leave residues of glyphosate on and in finished foods, such as oatmeal, breads, cereals, etc., dicamba residues are expected to leave residues in food. Farmers whose produce has been contaminated with dicamba residues via drift have expressed concerns that their products might be rejected or otherwise harmed commercially because of the residue issue.

The EPA has set tolerance levels for dicamba is several grains and for the meat of livestock that consume grains, but not for a variety of fruits and vegetables. A tolerance for dicamba in soybeans is set at 10 parts per million, for instance, in the United States, and a 2 parts per million for wheat grain. Tolerances can be seen here. 

The EPA has issued this statement regarding dicamba residues in food: “EPA performed the analysis required by the Federal Food, Drug and Cosmetic Act (FFDCA) and determined that residues on food are “safe” – meaning that there is a reasonable certainty of no harm to people, including all reasonably identifiable subpopulations, including infants and children, from dietary and all other non-occupational exposure to dicamba.”

Cancer and Hypothyroidism 

The EPA states that dicamba is not likely to be carcinogenic, but some studies have found an increased risk of cancer for users of dicamba.

See these studies regarding the human health effects of dicamba:

Dicamba use and cancer incidence in the agricultural health study: an updated analysis International Journal of Epidemiology (05.01.2020) “Among 49 922 applicators, 26 412 (52.9%) used dicamba. Compared with applicators reporting no dicamba use, those in the highest quartile of exposure had elevated risk of liver and intrahepatic bile duct cancer and chronic lymphocytic leukaemia and decreased risk of myeloid leukaemia.”

Pesticide Use and Incident Hypothyroidism in Pesticide Applicators in the Agricultural Health Study.  Environmental Health Perspectives (9.26.18)
“In this large prospective cohort of farmers that were occupationally exposed to pesticides, we found that ever-use of four organochlorine insecticides (aldrin, chlordane, heptachlor, and lindane), four organophosphate insecticides (coumaphos, diazinon, dichlorvos, and malathion), and three herbicides (dicamba, glyphosate, and 2,4-D) was associated with increased risk of hypothyroidism.”

Hypothyroidism and pesticide use among male private pesticide applicators in the agricultural health study. Journal of Occupational Environmental Medicine (10.1.14)
“The herbicides 2,4-D, 2,4,5-T, 2,4,5-TP, alachlor, dicamba, and petroleum oil were all associated with an increased odds of hypothyroidism”

A review of pesticide exposure and cancer incidence in the Agricultural Health Study cohort.  Environmental Heath Perspectives (8.1.10)
“We reviewed 28 studies; most of the 32 pesticides examined were not strongly associated with cancer incidence in pesticide applicators. Increased rate ratios (or odds ratios) and positive exposure–response patterns were reported for 12 pesticides currently registered in Canada and/or the United States (alachlor, aldicarb, carbaryl, chlorpyrifos, diazinon, dicamba, S-ethyl-N,N-dipropylthiocarbamate, imazethapyr, metolachlor, pendimethalin, permethrin, trifluralin).”

Cancer Incidence among Pesticide Applicators Exposed to Dicamba in the Agricultural Health Study. Environmental Health Perspectives (7.13.06)
“Exposure was not associated with overall cancer incidence nor were there strong associations with any specific type of cancer. When the reference group comprised low-exposed applicators, we observed a positive trend in risk between lifetime exposure days and lung cancer (p = 0.02), but none of the individual point estimates was significantly elevated. We also observed significant trends of increasing risk for colon cancer for both lifetime exposure days and intensity-weighted lifetime days, although these results are largely due to elevated risk at the highest exposure level.”

Non-Hodgkin’s Lymphoma and Specific Pesticide Exposures in Men: Cross-Canada Study of Pesticides and Health.  Cancer Epidemiology, Biomarkers and Prevention (11.01)
“Among individual compounds, in multivariate analyses, the risk of NHL was statistically significantly increased by exposure to the herbicides…dicamba (OR, 1.68; 95% CI, 1.00–2.81); ….In additional multivariate models, which included exposure to other major chemical classes or individual pesticides, personal antecedent cancer, a history of cancer among first-degree relatives, and exposure to mixtures containing dicamba (OR, 1.96; 95% CI, 1.40–2.75)…were significant independent predictors of an increased risk for NHL”

Litigation 

The dicamba drift damage concerns have prompted lawsuits from farmers in many U.S. states. Details on the litigation can be found here.