Monsanto loses effort to head off St. Louis trial that starts next week

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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.”