Jurors selected to hear a St. Louis case pitting cancer victims against Monsanto have been told the trial that was postponed indefinitely last week could resume as early as next Monday, a court spokesman said, an indication that efforts by Monsanto owner Bayer AG to end nationwide litigation over the safety of Roundup herbicides is still in flux.
In another sign that a deal has yet to be secured, jury selection in a separate Roundup cancer trial – this one in California – was continuing this week. The trials in St. Louis and California involve plaintiffs who allege they or their loved ones developed non-Hodgkin lymphoma because of exposure to glyphosate-based herbicides made by Monsanto, including the popular Roundup brand. Tens of thousands of plaintiffs are making similar claims in lawsuits filed around the United States.
Bayer bought Monsanto in June of 2018 just as the first trial in the mass tort litigation was getting underway. Bayer’s share price was hammered after a unanimous jury found that Monsanto’s herbicides were the cause of the plaintiff’s cancer in that case and that Monsanto had hidden evidence of the cancer risk from the public.
Two additional trials results in similar jury findings and drew worldwide media attention to damning internal Monsanto documents that show the company engaged in a number of deceptive practices over many decades to defend and protect the profitability of its herbicides.
Bayer investors are eager for the company to put an end to the litigation and head off more trials and the publicity that each brings. Shares rose last week when the St. Louis trial was abruptly postponed as attorneys for the plaintiffs huddled with attorneys for Bayer and indicated a global settlement of the litigation was near.
Numbers of $8 billion-$10 billion have been floated for weeks by litigation sources as a potential settlement total for the mass of cases that has dogged Bayer ever since it bought Monsanto for $63 billion.
Bayer has already negotiated settlement terms with several of the law firms leading the litigation, but has been unable to reach an agreement with the plaintiffs’ firms of Weitz & Luxenberg and The Miller Firm. Together the two firms represent close to 20,000 plaintiffs, making their participation in a settlement a key element to a deal that will appease investors, said sources close to the litigation.
Sources said that the two sides were “very close” to a deal.
In separate, but related news, The Kellogg Company said this week that it was moving away from using grains that have been sprayed with glyphosate shortly before harvest as ingredients in its consumer snacks and cereals. The practice of using glyphosate as a desiccant was marketed by Monsanto for years as a practice that could help farmers dry out their crops before harvesting, but food product testing has demonstrated that the practice commonly leaves residues of the weed killer in finished foods like oatmeal.
Kellogg’s said it is “working with our suppliers to phase out using glyphosate as pre-harvest drying agent in our wheat and oat supply chain in our major markets, including the U.S., by the end of 2025.”
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.
(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.
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
(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.
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.”
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.
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
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.
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.
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
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.
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.)
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.
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.
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)
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.
11:10 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.
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.
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.
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.
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.
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.
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.”
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
St. Louis Roundup trial postponed as large settlement appears near
Update – Statement from Bayer: “The parties have reached an agreement to continue the Wade case in Missouri Circuit Court for St. Louis. The continuance is intended to provide room for the parties to continue the mediation process in good faith under the auspices of Ken Feinberg, and avoid the distractions that can arise from trials. While Bayer is constructively engaged in the mediation process, there is no comprehensive agreement at this time. There also is no certainty or timetable for a comprehensive resolution.”
The highly anticipated opening of what would have been a fourth Roundup cancer trial was postponed indefinitely on Friday amid settlement negotiations between Monsanto owner Bayer AG and attorneys representing thousands of people who claim their cancers were caused by exposure to Monsanto’s glyphosate-based herbicides.
St. Louis City Circuit Court Judge Elizabeth Hogan issued an order stating only “cause continued.” The order came after lead lawyers from the plaintiffs’ firms of New York-based Weitz & Luxenberg and The Miller Firm of Virginia left Hogan’s courtroom unexpectedly shortly before opening statements were due to begin at mid-morning Friday. Sources close to the legal teams initially said opening statements were pushed back until early afternoon to allow for time to see if the plaintiffs’ attorneys and lawyers for Bayer could finalize a resolution that would settle tens of thousands of lawsuits. But by early afternoon the proceedings were called off and it was widely speculated that a deal had been achieved.
Numbers of $8 billion-$10 billion have been floated for weeks by litigation sources as a potential settlement total for the mass of cases that has dogged Bayer ever since it bought Monsanto in June of 2018 for $63 billion. The company’s share prices has been sharply depressed by repeated trial losses and large jury awards against the company in the three trials held to date.
Many more trials were to be held over the next few weeks and months, pressuring Bayer to settle the cases in time to assuage investors at its annual shareholders’ meeting in April.
Bayer officials have confirmed that more than 42,000 plaintiffs have filed lawsuits against Monsanto. But litigation sources say there are now more than 100,000 plaintiffs lined up with claims, though the current total number of actual filed claims is unclear.
The Weitz firm and the Miller firm combined represent the claims of roughly 20,000 plaintiffs, according to sources close to the firms. Mike Miller, who heads the Miller firm, is the lead attorney in the St. Louis trial that had been set to open Friday.
Miller has been a high-profile hold-out in the settlement talks with Bayer as several other lead plaintiffs’ attorneys have already signed on to a deal with the German pharmaceutical giant. Bayer needs to be able to achieve a resolution with a majority of the outstanding claims in order to appease disgruntled investors.
Mediator Ken Feinberg said last week that it was unclear if there could be a global settlement achieved without Miller. Miller was seeking “what he thinks is appropriate compensation,” Feinberg said. U.S. District Judge Vince Chhabria appointed Feinberg to act as a mediator between Bayer and the plaintiffs’ attorneys last May.
The jury for the St. Louis trial had already been selected and the four plaintiffs and their family members were present Friday morning, lining the front row of the small courtroom.
Monsanto’s lawyers made a bid earlier Friday to block broadcasting of the trial by local television and radio stations but Judge Hogan ruled against the company. Friday’s trial would have been the first to take place in the St. Louis area, where Monsanto was headquartered for more than 100 years.
The first three trials went badly for Monsanto and its German owner Bayer AG as outraged juries awarded over $2.3 billion in damages to four plaintiffs. Trial judges lowered the jury awards to a total of roughly $190 million, and all are under appeal.
The trials have turned a public spotlight on internal Monsanto record that showed how Monsanto engineered scientific papers proclaiming the safety of its herbicides that falsely appeared to be created solely by independent scientists; used third parties to try to discredit scientists reporting harm with glyphosate herbicides; and collaborated with Environmental Protection Agency officials to protect Monsanto’s position that its products were not cancer-causing.
Dust-up over media ahead of Roundup cancer trial opening
Lawyers representing the opposing sides of the upcoming Monsanto Roundup cancer trial due to open Friday in St. Louis were huddled away from the courthouse on Thursday amid speculation that settlement talks between the plaintiffs attorneys and Monsanto owner Bayer AG were at a critical juncture.
In the absence of the attorneys, confusion over media access to trial proceedings erupted at a hastily called hearing at the St. Louis City Circuit Court after a clerk for Judge Elizabeth Hogan erroneously informed reporters that if they planned to observe the trial proceedings via a live feed from Courtroom View Network (CVN) they would need individual approval from the court. Reporters were told they must make an application for a court hearing on whether or not they could watch the live feed the court has agreed to allow CVN to provide.
CVN then sent a notice out to journalists alerting them to the fact that they may be barred from simply watching the proceedings remotely: “We’ve been informed that the Court has seemingly imposed a requirement that any member of the media wishing to watch the Roundup video feed via CVN must obtain specific permission from the court to do so. Our attorney is trying to contact the judge ASAP to resolve this, and hopefully it will be resolved,” said an email sent from CVN to journalists.
Additionally, the hearing was to take up the matter of whether or not CVN can provide pool access to certain broadcast news stations. Radio and television outlet that want to share some of the proceedings with their audiences will need to make individual pleas to the judge.
The hearing was aborted because attorneys for Bayer, who have objected to broadcasting the trial, were not present. Now the pool access issue is to be taken up Friday morning before opening statements in the trial, Gross said.
The limitations on simply watching the trial announced by the judge’s clerk turned out to be inaccurate, according to court spokesman Thom Gross. There are sharp limits on those who will be watching, however. No “downloading, recording, rebroadcasting or reposting of any content, including screen shots” is allowed.
The debate over how much visibility the trial could receive has been a lingering concern for Bayer as it seeks to resolve tens of thousands of lawsuits filed against its Monsanto unit alleging Roundup and other glyphosate-based herbicides cause non-Hodgkin lymphoma. The plaintiffs additionally allege that Monsanto should have warned users but instead covered up the risks of its herbicides.
Evidence in three trials concluded to date has sparked global outrage over the corporate conduct of Monsanto, as plaintiffs’ attorneys have introduced internal Monsanto records in which company executives discussed ghostwriting scientific literature, secretly deploying third parties to discredit independent scientists, and benefiting from cozy relationships with officials at the Environmental Protection Agency.
Bayer has said that televising the St. Louis trial could endanger its employees, including former Monsanto executives.
Several of the plaintiffs’ law firms that spear-headed the nationwide litigation have agreed to cancel or postpone multiple trials, including two that involved young children with cancer, as part of the settlement talks with Bayer.
Bayer had made no secret of its desire to settle the mass tort litigation before any more trials take place. But one of the largest caseloads of plaintiffs is held by Virginia lawyer Mike Miller, and Miller has thus far refused to postpone the trials for his plaintiffs, apparently shrugging off settlement offers. Miller’s firm is providing lead counsel for the St. Louis trial and another in California that is still in the process of jury selection.
The Miller firm has several more trials coming up for its plaintiffs.
Stakes are high with two Roundup cancer trials starting amid settlement talks
It’s been nearly five years since international cancer scientists classified a popular weed-killing chemical as probably carcinogenic, news that triggered an explosion of lawsuits brought by cancer patients who blame the former chemical maker Monsanto Co. for their suffering.
Tens of thousands of U.S. plaintiffs – some lawyers involved in the litigation say over 100,000 – claim Monsanto’s Roundup herbicide and other glyphosate-based weed killers caused them to develop non-Hodgkin lymphoma, while Monsanto spent years hiding the risks from consumers.
The first three trials went badly for Monsanto and its German owner Bayer AG as outraged juries awarded over $2.3 billion in damages to four plaintiffs. Trial judges lowered the jury awards to a total of roughly $190 million, and all are under appeal.
Two new trials – one in California and one in Missouri – are now in the process of selecting juries. Opening statements are scheduled for Friday for the Missouri trial, which is taking place in St. Louis, Monsanto’s former home town. The judge in that case is allowing testimony to be televised and broadcast by Courtroom View Network.
Bayer has been desperate to avoid the spotlight of more trials and bring an end to the saga that has bludgeoned the pharmaceutical giant’s market capitalization, and exposed to the world Monsanto’s internal playbook for manipulating science, media and regulators.
It looks like that end could be coming soon.
“This effort to secure a comprehensive settlement of the Roundup cases has momentum,” mediator Ken Feinberg said in an interview. He said he is “cautiously optimistic” that a “national all-in” settlement of the U.S. lawsuits could happen within the next week or two. Feinberg was appointed last May by U.S. District Judge Vince Chhabria to facilitate the settlement process.
Neither side wants to wait and see how appeals filed over the trial verdicts play out, according to Feinberg, and Bayer hopes to have good news to report at its annual shareholders’ meeting in April.
“You’re rolling the dice with those appeals,” Feinberg said. “I don’t think anybody wants to wait until those appeals resolve.”
In a recent sign of settlement progress, a trial scheduled to start next week in California – Cotton v. Monsanto – has been postponed. A new trial date is now set for July.
And on Tuesday, Chhabria issued a stern order reminding both sides of the need for secrecy as the settlement talks proceed.
“At the request of the mediator, the parties are reminded that settlement discussions… are confidential and that the Court will not hesitate to enforce the confidentiality requirement with sanctions if necessary,” Chhabria wrote.
Numbers of $8 billion-$10 billion have been floated by litigation sources, though Feinberg said he would “not confirm that number.” Some analysts say even $8 billion would be hard to justify to Bayer investors, and they expect a much lower settlement amount.
Several of the plaintiffs’ law firms that spear-headed the nationwide litigation have agreed to cancel or postpone multiple trials, including two that involved young children with cancer, as part of the settlement talks. But as they ease back, other firms racing have been racing to sign new plaintiffs, a factor that complicates settlement talks by potentially diluting individual payments.
Talks have also been complicated by the fact that one of the leading Roundup litigators – Virginia lawyer Mike Miller, a veteran in taking on large corporations in court – has so far refused to postpone trials, apparently shrugging off the settlement offers. Miller’s firm represents thousands of plaintiffs and is providing lead counsel for the two trials now getting underway.
The Miller Firm has been a critical part of the team that also involved the Baum Hedlund Aristei & Goldman firm from Los Angeles that dug out internal Monsanto records through discovery, using the evidence to achieve the three trial victories. Those records fueled a global debate over Roundup safety, showing how Monsanto engineered scientific papers that falsely appeared to be created solely by independent scientists; used third parties to try to discredit scientists reporting harm with glyphosate herbicides; and collaborated with Environmental Protection Agency officials to protect Monsanto’s position that its products were not cancer-causing.
Some of Miller’s clients are cheering him on, hoping by holding out Miller can command a larger pay-out for the cancer claims. Others fear he could scuttle the chances for a large settlement, particularly if his firm loses one of the new trials.
Feinberg said it is unclear if a comprehensive resolution can be achieved without Miller.
“Mike Miller is a very, very good lawyer,” said Feinberg. He said Miller was seeking what he thinks is appropriate compensation.
Feinberg said there are many details to work out, including how a settlement would be apportioned to plaintiffs.
A worldwide following of journalists, consumers, scientists and investors are watching the developments closely, awaiting an outcome that could impact moves in many countries to ban or restrict glyphosate herbicide products.
But those most impacted are the countless cancer victims and their family members who believe corporate prioritization of profits over public health must be held to account.
Though some plaintiffs have successfully treated their cancers, others have died while waiting for a resolution, and others grow still sicker as each day passes.
Settlement money won’t heal anyone or bring back a loved one who has passed. But it would help some pay medical bills, or cover college costs for children who have lost a parent, or just allow for an easier life amid the pain that cancer brings.
It would be far better if we didn’t need mass lawsuits, teams of attorneys and years in court to seek payments for injuries attributed to dangerous or deceptively marketed products. It would be far better to have a rigorous regulatory system that protected public health and laws that punished corporate deception.
It would be far better if we lived in a country where justice was easier to obtain. Until then, we watch and we wait and we learn from cases like the Roundup litigation. And we hope for better.
Settlement in Monsanto Roundup cancer litigation complicated by hold-out attorney
What will it take to get Mike Miller to settle? That is the pressing question as one of the lead lawyers in the nationwide Roundup cancer litigation has thus far refused to align with fellow litigators in agreeing to settle cases on behalf of thousands of cancer patients who claim their diseases were caused by exposure to Monsanto’s herbicide products.
Mike Miller, head of the Orange, Virginia-based law firm that bears his name, has been unwilling to accept the terms of settlement offers discussed in mediation talks between Monsanto’s German owner Bayer AG and a team of plaintiffs’ attorneys. That recalcitrance is a critical sticking point that is interfering with a resolution, sources close to the litigation say.
Instead, Miller’s firm is launching two new trials this month, including one that started today in Contra Costa, California, and one that starts Tuesday in St. Louis, Missouri. It is possible that Miller could agree to a settlement at any point, interrupting trial proceedings, however. Miller also has a trial set for February in the U.S. District Court in San Francisco. That case, brought by cancer patient Elaine Stevick, would be the second trial to be held in federal court.
Miller’s move to continue to try cases separates him from other leading Roundup plaintiffs’ firms, including the Baum Hedlund Aristei & Goldman law firm of Los Angeles and the Denver, Colorado-based Andrus Wagstaff firm. Like the Miller firm, Baum Hedlund and Andrus Wagstaff represent several thousands plaintiffs.
Those firms have agreed to cancel or postpone multiple trials, including two that involved young children with cancer, in order to facilitate a settlement.
Some sources have pegged a potential settlement number at $8 billion-$10 billion, though some analysts have said that number would be hard to justify to Bayer investors, who are keeping a close eye on the developments.
Critics accuse Miller of acting in a way that could hurt the ability of thousands of plaintiffs to obtain payouts from Bayer, but supporters say he is championing his clients’ interests and refusing to accept terms he finds less than optimal. Miller is a veteran litigator who has a long history of taking on large companies, including pharmaceutical giants, over alleged product-related consumer injuries.
Mediator Ken Feinberg said it was unclear if there could be a global settlement achieved without Miller.
“Mike Miller has a view of what his cases are worth and is seeking what he thinks is appropriate compensation,” said Feinberg. U.S. District Judge Vince Chhabria appointed Feinberg to act as a mediator between Bayer and the plaintiffs’ attorneys last May.
Monsanto has lost all three of the trials held so far. The Miller Firm handled two of those trials – bringing in Baum Hedlund lawyers to help with the case of Dewayne “Lee” Johnson (after Mike Miller was severely injured in an accident just prior to trial) and also with the case of husband-and-wife plaintiffs, Alva and Alberta Pilliod. Johnson was awarded $289 million and the Pilliods were awarded more than $2 billion though the trial judges in each case lowered the awards. The other trial that has thus far taken place, on claims brought by Edwin Hardeman, was handled by the Andrus Wagstaff firm and attorney Jennifer Moore.
Miller’s bid to push new trials carries several risks, including the fact that Monsanto could prevail in one or more of the cases, which could provide leverage to Bayer in settlement talks. Conversely, though, if Miller were to win the trials that could offer fresh leverage for the plaintiffs to ask for more money.
The pressure to settle has been ratcheting higher for both sides. Complicating factors include a ballooning of the number of plaintiffs’ signed by law firms around the United States amid the publicity of a possible settlement. Some media reports have pegged the total number of plaintiffs at 80,000 while some sources have said the number is well over 100,000. A large part of that number, however, reflects plaintiffs that are signed but have not filed actions in court, and some who have filed but do not have trial dates. Any settlement now would represent a large percentage of plaintiffs, but not likely all, sources said.
All the cases allege that the cancers were caused by exposure to Monsanto’s glyphosate-based herbicides, including the widely used Roundup brand. And all allege Monsanto knew about, and covered up, the risks.
Among the evidence that has emerged through the litigation are internal Monsanto documents showing the company engineered the publishing of scientific papers that falsely appeared to be created solely by independent scientists; the funding of, and collaborating with, front groups that were used to try to discredit scientists reporting harm with Monsanto’s herbicides; and collaborations with certain officials inside the Environmental Protection Agency (EPA) to protect and promote Monsanto’s position that its products were not cancer-causing.
In the California trial that started today, Kathleen Caballero alleges that she developed non-Hodgkin lymphoma after spraying Roundup from 1977 to 2018 as part of her work at a gardening and landscaping business, and in her operation of a farm.
In the trial set to start Tuesday in St. Louis, there are four plaintiffs- Christopher Wade, Glen Ashelman, Bryce Batiste and Ann Meeks.
A third trial is also set for this month in Riverside County Superior Court. That case was brought by Treesa Cotton, a woman who was diagnosed with non-Hodgkin lymphoma in 2015 that she blames on exposure to Monsanto’s Roundup.
Monsanto loses effort to head off St. Louis trial that starts next week
Monsanto’s German owner Bayer AG has failed in efforts to head off a Missouri trial over claims brought by cancer patients that Monsanto’s herbicide caused their diseases and Monsanto hid the risks.
In a ruling handed down Wednesday, St. Louis City Judge Elizabeth Byrne Hogan of Missouri’s 22nd Circuit ruled that the company wasn’t entitled to summary judgment in the case of Wade v. Monsanto, which is scheduled to go to trial Tuesday.
Hogan further frustrated Monsanto by ordering Thursday that the trial could be audio and video recorded and broadcast to the public. Lawyers for Monsanto had argued that the trial should not be broadcast because the publicity could endanger witnesses and former Monsanto executives.
Judge Hogan ruled that the trial would be open to audio and video recording and broadcast from its beginning on Jan 21 through the end of the trial, with several exceptions, including no coverage of jury selection.
The trial will be the first to take place in St. Louis, the former hometown for Monsanto before the company was acquired by Bayer in June 2018.
Monsanto lost the first three trials that have so far taken place. In those three trials, a total of four plaintiffs claimed exposure to the company’s glyphosate-based herbicides caused them each to develop types of non-Hodgkin lymphoma and that Monsanto covered up evidence of the risks.
Representatives for both sides have been working with a court-appointed mediator since last May to try to resolve the litigation. As settlement talks have progressed, Bayer has successfully negotiated arrangements with certain plaintiffs’ law firms to postpone and/or cancel several trials, including one that had been set to get underway in the St. Louis area the last week of January. Among the cases pulled from the trial schedule are two cases involving cancer-stricken children and a case involving a woman who has suffered extensive debilitation from her bout with non-Hodgkin lymphoma.
But while other firms pull back from trial plans, the Virginia-based Miller Firm, which is the lead counsel for the group of plaintiffs in the Wade case, has pushed forward. The Miller Firm already has two trial victories under its belt, having represented the first trial plaintiff, Dewayne “Lee” Johnson, and the most recent trial plaintiffs, Alva and Alberta Pilliod. The other trial that has thus far taken place, on claims brought by Edwin Hardeman, was handled by two separate firms.
In addition to the Wade case, the Miller firm has another trial due to start in California that will overlap with the Wade case if both proceed as planned.
Several of the lead law firms involved in the litigation stopped accepting new clients months ago, but other attorneys around the United States have continued to advertise, drawing in more potential plaintiffs. Some sources say the list of plaintiffs now totals more than 100,000 people. Last year Bayer reported to investors that the list of plaintiffs in the Roundup litigation totaled more than 42,000.
In ruling against Monsanto’s bid for summary judgment, Judge Hogan shot down an assortment of arguments asserted by the company’s lawyers, including Monsanto’s repeated effort to claim that because the Environmental Protection Agency (EPA) concludes glyphosate is not carcinogenic, a federal legal preemption exists.
“Defendant has not cited a single case that holds that the EPA’s regulatory scheme preempts claims such as Plaintiffs’,” Judge Hogan said in her ruling. “Every court presented with this issue has rejected it.”
With respect to the company’s argument that a jury should not be entitled to consider punitive damages, the judge said that would be a matter for consideration after seeing evidence presented at trial. She wrote: “Defendant argues that because Roundup has been consistently approved by the EPA and other regulatory agencies, its conduct cannot be considered willful, wanton or reckless as a matter of law. Plaintiffs respond that they will present evidence of Monsanto’s reckless disregard for the safety of others, and despicable and vile conduct, which has been held sufficient to submit the claim of punitive damages to the jury in other cases that have been tried. Defendant is not entitled to summary judgment on punitive damages.”
Anticipation Builds For Settlement of Roundup Cancer Claims
Anticipation is building around the belief that there could soon be an announcement of at least a partial settlement of U.S. lawsuits pitting thousands of U.S. cancer patients against Monsanto Co. over allegations the company hid the health risks of its Roundup herbicides.
Investors in Bayer AG, the German company that bought Monsanto in 2018, are keeping a close eye on the status of three trials currently still on the docket to get underway this month. Six trials were initially set to take place in January, but three have recently been “postponed.” Sources say the postponements are part of the process of obtaining an overall settlement with several plaintiffs’ attorneys who have large numbers of cases pending.
The three trials still on the docket for this month are as follows: Caballero v. Monsanto, set to start Jan. 17 in Contra Costa Superior Court in California; Wade v. Monsanto, set to start Jan. 21 in St. Louis City Circuit Court in Missouri; and Cotton v. Monsanto, scheduled for Jan. 24 in Riverside Superior Court in California.
A hearing scheduled for today in the Caballero case was called off, but another hearing is set for Thursday before the trial gets underway Friday, according to court filings. Possibly underscoring the fluidity of the situation, at least one of the key witnesses expected to testify in the case has been told he will not likely be needed, according to a source close to the litigation.
In St. Louis, Monsanto’s former hometown, the court calendar calls for the Wade trial to get underway in front of Judge Elizabeth Byrne Hogan a week from today,said court spokesman Thom Gross.
Plaintiffs’ attorney Mike Miller, who represents plaintiff Kathleen Caballero as well as multiple plaintiffs in the Wade trial, said he was looking forward to the trials for these “victims of Monsanto’s deceit.” Miller said rumors that his trials would be postponed are false and he fully intends for the trials to go forward.
Miller and other attorneys involved in the litigation have declined to answer questions about a potential settlement.
But analysts who follow Bayer say that settlement discussions are looking at a potential deal for $8 billion to settle current cases with $2 billion set aside for future needs.
After losing three out of three trials and facing thousands of claims by cancer victims who allege their diseases were caused by exposure to Monsanto’s glyphosate-based herbicides, Monsanto’s German owner Bayer AG has been working for months to avoid any additional trials. Bayer was successful in delaying several trials slated for late 2019 and the three that were planned for January before being postponed. Two of those cases involved children stricken with non-Hodgkin lymphoma and the third was brought by a woman suffering from non-Hodgkin lymphoma.
There are many complicating factors hindering resolution of the litigation, including the fact that plaintiffs’ attorneys with no connection to the plaintiffs’ leadership team continue to advertise for new clients to add to the pool, thus potentially thinning the payouts for plaintiffs who have been awaiting their day in court for years.
In working toward a settlement Bayer is hoping to appease investors unhappy with the mass tort liability Bayer took on in acquiring Monsanto, and hopes to avoid more publicity surrounding damning evidence that was introduced during the previous trials indicating that Monsanto knew of the cancer risks of its weed killing products but failed to warn consumers. The revelations have triggered outrage around the world and prompted moves to ban the glyphosate-based herbicides.
Earlier this month the town of Dennis, Massachusetts announced it will no longer allow use of the herbicide glyphosate on town-owned property. It is one of a number of communities in the Cape Cod area that have recently said they will restrict or ban glyphosate herbicides use. Numerous other cities and school districts around the United States have said they are looking at, or have already decided to, ban or restrict the use of glyphosate-based herbicides.
A highly anticipated Roundup cancer trial set to start later this month in the St. Louis area has been pulled from the docket, a court official said on Wednesday.
The trial, which was to pit a woman named Sharlean Gordon against Roundup maker Monsanto Co., was to start Jan. 27 in St. Louis County and was to be broadcast to the public. Notably, Gordon’s lawyers planned to put former Monsanto CEO Hugh Grant on the stand. St. Louis was the home of Monsanto’s corporate headquarters until the company was purchased by Bayer AG of Germany in June of 2018.
In taking the trial off the calendar, the judge in the case has ordered that a status conference be set for a month from now, said St. Louis County Court spokeswoman Christine Bertelson.
The Gordon trial was already postponed once – it originally was scheduled for August. It is one of several trials that have been postponed in the last several months as Bayer attempts to find a settlement to the mass of claims filed against Monsanto by people stricken with non-Hodgkin lymphoma they claim was caused by exposure to Monsanto Roundup and other glyphosate-based herbicides. Bayer officials have said that Monsanto is facing more than 42,700 plaintiffs in the United States.
Gordon developed non-Hodgkin lymphoma after using Roundup herbicides for 25 years at her residence in South Pekin, Illinois, and has suffered extensive debilitation due to her disease. Gordon’s stepfather, who also used Roundup at the family home, died of cancer. The case is actually derived from a larger case filed in July 2017 on behalf of more than 75 plaintiffs. Gordon was to be the first of that group to go to trial.
Monsanto and Bayer have denied that Monsanto’s herbicides can cause cancer, and assert the litigation is without merit but is being fueled by greedy plaintiffs’ attorneys.
According to sources close to the litigation, discussions are underway to postpone more Roundup cancer trials, possibly including one set to start January 21 in St. Louis City Court. Attorneys for Monsanto and for the plaintiffs in the upcoming January trials declined to comment.
Shares in Bayer hit a 52-week high and were up close to 3 percent Wednesday. Investors have been pushing the company to find a way to avoid future trials and to settle the litigation.
In the three Roundup cancer trials held so far, unanimous juries have found that exposure to Monsanto’s herbicides does cause non-Hodgkin lymphoma and that the company covered up the risks and failed to warn consumers. The three juries awarded a total of four plaintiffs more than $2 billion in damages, but the trial judges in each case have reduced the awards significantly.
No damages have yet been paid as Monsanto appeals the verdicts.
Bayer’s annual shareholders’ meeting is set for April 28 and analysts said investors would like to see either a settlement of the litigation by that time, or at least meaningful progress in containing the liability. Bayer’s stock took a dive, losing billions of dollars in value, after the first jury verdict in August 2018, and share prices remain depressed.
More Monsanto Roundup Cancer Trials Expected to be Postponed
(UPDATE Jan. 8, 2020- On Wednesday, St. Louis County Court spokeswoman Christine Bertelson confirmed that one trial set to start Jan. 27 has been officially postponed with no new trial date yet set. That trial was to pit a woman named Sharlean Gordon against Monsanto. )
Discussions are underway to postpone one or more highly anticipated Roundup cancer trials set to start in January, including trials scheduled for St. Louis, the former hometown of Roundup herbicide maker Monsanto Co., according to sources close to the litigation.
Court dockets still show trials scheduled for later this month in St. Louis and in California courts, and court officials say they are still planning for the trials to take place on the designated dates. But multiple legal sources said the opposing sides were nearing agreements that would put off the trials by several months, if not longer. Attorneys for Monsanto and for the plaintiffs in the upcoming January trials declined to comment.
The talk of trial delays is not unexpected. Bayer AG, the German company that bought Monsanto in June 2018, successfully negotiated the postponement of several trials that had been set for the fall of 2019 after losing each of the three trials held to date. Each involved plaintiffs who claimed their cancers were caused by exposure to Roundup and other Monsanto glyphosate-based herbicides.
The juries found not just that the company’s herbicides can cause cancer, but that Monsanto knew about the risks and hid the information from consumers. Bayer has estimated more than 42,700 people have filed claims in the United States against Monsanto, which is now a wholly owned unit of Bayer.
Bayer and a team of plaintiffs’ attorneys have been pursuing a potential settlement of the litigation that could amount to well more than $8 billion, the legal sources said.
Bayer has been particularly uneasy about trials scheduled for St. Louis, where former Monsanto CEO Hugh Grant has been subpoenaed to testify and the trial of plaintiff Sharlean Gordon is to be broadcast to the public. In the three previous trials, all held in California, Monsanto executives have given testimony through depositions and have not had to take the stand in front of juries.
“Trial postponements make perfect sense right now,” said Susquehanna Financial Group analyst Tom Claps. “I believe that it is in everyone’s best interest to stay out of the courtroom at this time, especially when negotiations seem to be progressing in a positive manner.”
Amid the maneuvering, more cases continue to stack up. Lawyers for Monsanto were in court Monday in Independence, Missouri to set a schedule and trial date for a newly filed lawsuit brought by a woman suffering from non-Hodgkin lymphoma she claims she developed due to her residential use of Roundup.
Gregory Chernack of the Washington, D.C., -based Hollingsworth law firm, one of Monsanto’s long-serving defense firms, told the judge in Independence that Monsanto wanted the case consolidated with roughly 30 others being overseen by a different judge in Kansas City, Mo. Attorneys for plaintiff Sheila Carver objected to the suggestion, and asked the judge to go ahead and set a trial date. Jackson County Circuit Court Judge Jennifer Phillips decided to give the parties 30 days to file motions on the matter.
Bayer’s annual shareholders’ meeting is set for April 28 and analysts said investors would like to see either a settlement of the litigation by that time, or at least meaningful progress in containing the liability. Bayer’s stock took a dive, losing billions of dollars in value, after the first jury verdict in August 2018, and share prices remain depressed.
“Bayer’s stock has reacted negatively to each of the three trial verdicts. Therefore, Bayer does not want to face more negative trial headlines from losing another trial, especially while it is engaged in good faith settlement discussions,” said Claps.
There are multiple factors at play, however, including the uncertainty surrounding the outcome of the appeals that are pending for each of the three trials. If an appellate court were to overturn the jury findings of Monsanto’s liability, it would weaken the plaintiffs’ bargaining power for a global settlement. Conversely, the company’s position would be weakened if the jury verdicts are upheld on appeal. But no decision is expected on the appeals for several more months at least.