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January 17, 2020

Settlement in Monsanto Roundup cancer litigation complicated by hold-out attorney

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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.