Bayer’s Monsanto headache persists

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The migraine that is Monsanto doesn’t appear to be going away anytime soon for Bayer AG.

Efforts at settling the mass of lawsuits brought in the United States by tens of thousands of people who claim Monsanto’s Roundup herbicides gave them cancer continue to inch forward, but are not addressing all outstanding cases, nor are all plaintiffs offered settlements agreeing to them.

In a letter to U.S. District Judge Vince Chhabria, Texas attorney David Diamond said that representations made by the lawyers leading settlement talks with Bayer on behalf of plaintiffs did not accurately reflect the situation for his own clients. He cited a “lack” of “settlement-related experiences” with Bayer and he requested that Judge Chhabria advance several of Diamond’s cases forward for trials.

“Leadership’s representations regarding settlement do not represent my clients’ settlement
related experiences, interests or position,” Diamond told the judge.

Diamond wrote in the letter that he has 423 Roundup clients, including 345 who have cases pending before Chhabria in the multidistrict litigation (MDL) in the U.S. District Court for the Northern District of California. Alongside the MDL are thousands of plaintiffs whose cases are pending in state courts.

Diamond’s outreach to the judge followed a hearing late last month in which several of the leading firms in the litigation and lawyers for Bayer told Chhabria they were close to resolving most, if not all, of the cases before the judge.

Bayer has reached important settlements with several of the leading law firms who collectively represent a significant share of the claims brought against Monsanto. In June, Bayer said it would provide $8.8 billion to $9.6 billion to resolve the litigation.

But controversy and conflict have dogged the overall settlement offers.

Several plaintiffs represented by the large firms and who spoke on condition that their names not be used, said they are not agreeing to the terms of the settlements, meaning their cases will be directed into mediation and, if that fails, to trials.

After buying Monsanto in 2018, Bayer has been struggling to figure out how to put an end to the litigation that includes more than 100,000 plaintiffs. The company lost all three of the three trials held to date and has lost the early rounds of appeals seeking to overturn the trial losses. Juries in each of the trials found that Monsanto’s glyphosate-based herbicides, such as Roundup, do cause cancer and that Monsanto spent decades hiding the risks.

The company’s efforts to resolve the litigation have been stymied in part by the challenge of how to head off claims that could be brought in the future by people who develop cancer after using the company’s herbicides.

Problems Just Keep Mounting  

Bayer has threatened to file for bankruptcy if it cannot quell the Roundup litigation and on Wednesday the company issued a profit warning and announced billions in cost cuts, citing a “lower than expected outlook in the agricultural market” amid other factors. The news sent shares in the company tumbling.

In reporting Bayer’s troubles Barron’s noted: “The problems just keep mounting for Bayer and its investors, who by now must be used to regular bouts of disappointing news. The stock has now fallen more than 50% since the Monsanto deal was closed in June 2018. “This latest update only adds to the case for the Monsanto deal being one of the worst in corporate history.”

Roundup cancer trials still a threat to Bayer, but settlement talks progressing

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Lawyers for Monsanto owner Bayer AG and for plaintiffs suing Monsanto told a federal judge on Thursday that they were continuing to make progress in settling sweeping nationwide litigation brought by people who claim Monsanto’s Roundup caused them to develop cancer.

In a video hearing, Bayer lawyer William Hoffman told U.S. District Judge Vince Chhabria the company had reached deals – or was close to reaching deals – to resolve more than 3,000 lawsuits that are grouped together in multidistrict litigation (MDL) filed in U.S. District Court for the Northern District of California.

The company separately has already settled thousands of cases outside the MDL, cases that have been proceeding through state courts. But controversy and conflict have dogged the overall settlement offers, with allegations from some plaintiffs’ firms that Bayer reneged on agreements reached months ago, and some plaintiffs’ firms unwilling to agree to what they consider inadequate offers from Bayer.

There was no discussion of those complaints, however,  in Thursday’s hearing, with both sides expressing optimistic views.

“The company has moved forward and finalized several agreements with firms…. we’re also hopefully going to finalize additional agreements in the next several days,” Hoffman told the judge.

“Where we are right now… these figures are somewhat estimates but I think they are reasonably close: There are approximately 1,750 cases that are subject to agreements between the company and law firms and another approximately 1,850 to 1,900 cases that are in various stages of discussion right now,” Hoffman said. “We are working to put in place a program to accelerate discussions and hopefully bring agreements to fruition with those firms.”

Plaintiffs’ lawyer Brent Wisner told the judge it was important to note that there remain a “handful of cases” within the MDL that are not settled yet. But, he said – “We anticipate they will be shortly.”

Judge Chhabria said that given the progress he will continue a stay of the Roundup litigation until November 2 but that he will start moving cases to trial if they are not resolved by that point.

Bayer Bad Dealing Alleged

The cooperative tone expressed in Thursday’s hearing was a far cry from a hearing held last month when plaintiffs’ attorney Aimee Wagstaff  told Judge Chhabria that Bayer was not honoring tentative settlement agreements made in March and intended for finalization in July.

Bayer announced in June that it had reached a $10 billion settlement with U.S. law firms to resolve most of more than 100,000 Roundup cancer claims. But at that time the only major law firms leading the litigation that had final signed agreements with Bayer were The Miller Firm and Weitz & Luxenburg.

The Miller Firm’s deal alone totaled $849 million to cover the claims of more than 5,000 Roundup clients, according to settlement documents.

The  California-based Baum Hedlund Aristei &  Goldman law firm; the Andrus Wagstaff firm from Colorado; and the Moore Law Group of Kentucky had tentative deals but not final agreements.

According to a letter written by Wagstaff filed with the court, Bayer requested repeated extensions until the deal with her firm fell apart in mid-August. After reporting the issues to Judge Chhabria, the settlement talks resumed and were ultimately resolved with the three firms this month.

Some details of how the settlements will be administered were filed earlier this week in a court in Missouri. The Garretson Resolution Group, Inc., doing business as Epiq Mass Tort, will act as the
Lien Resolution Administrator,” for instance, for clients of Andrus Wagstaff whose settlement dollars will need to be used in part or in whole to repay cancer treatment expenses paid by Medicare.

Bayer bought Monsanto in 2018 just as the first Roundup cancer trial was getting underway. It has since lost all three of the three trials held to date and has lost the early rounds of appeals seeking to overturn the trial losses. Juries in each of the trials found that Monsanto’s herbicides do cause cancer and that Monsanto spent decades hiding the risks.

The jury awards totaled well over $2 billion, though the judgments have been ordered reduced by trial and appellate court judges.

Bayer had threatened to file for bankruptcy if no nationwide settlement was reached, according to communications from the plaintiffs’ firms to their clients.

Glyphosate in chicken poop used as fertilizer is hurting food production, researchers say

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Scientists brought more bad news to light regarding the widely used herbicide glyphosate, better known as Roundup, in a new research paper published this month.

Researchers from the University of Turku in Finland revealed in a paper published in the journal  Science of The Total Environment that manure from poultry used as fertilizer can decrease crop yields when the manure contains residues of glyphosate-based herbicides, such as Roundup. Fertilizers are meant to increase crop production, so the evidence that glyphosate residues can have the opposite effect is significant.

Poultry litter, as the manure is called, is often used as a fertilizer, including in organic agriculture, because it is considered rich in essential nutrients. Use of the poultry litter as fertilizer has been growing both in farming and in horticulture and home gardens.

While use is growing, the “possible risks associated with the accumulation of agrochemicals in poultry manure are still largely ignored,” the Finland researchers warned.

Organic farmers have been growing increasingly worried about traces of glyphosate in manure fertilizer that is allowed in organic production, but many in the industry are reluctant to publicize the issue.

Farmers spray glyphosate directly onto a number of crops grown around the world, including soybeans, corn, cotton, canola and other crops genetically engineered to withstand glyphosate treatments. They also often directly spray such crops as wheat and oats, which are not genetically engineered – shortly before harvest to dry the crops out.

Given the amount of glyphosate-based herbicides used to treat crops that are used in animal feed, as well as the amount of manure used as fertilizer, “we should definitely be aware that this kind of a risk exists,” said one of the authors of study, Anne Muola.

“Nobody seems very eager to talk too loudly about it.” Muola noted.

The heavy use of glyphosate herbicides directly onto food crops has been promoted by Monsanto – now a unit of Bayer AG – since the 1990s, and glyphosate use is so ubiquitous that residues are commonly found in food, water and even air samples.

Because there are glyphosate residues in human and animal food, detectable glyphosate levels are commonly found in human urine and animal manure.

These glyphosate residues in fertilizer are a problem for growers for many reasons, according to the Finland researchers.

“We found that poultry manure can accumulate high residues of (glyphosate-based herbicides), decrease plant growth and reproduction, and thus inhibit the growth-promoting effects of manure when applied as fertilizer,” the paper states. “These results demonstrate that the residues pass through the digestive process of birds, and more importantly, they persist in the manure fertilizer over long periods.”

The researchers said the glyphosate residues can persist in ecological systems, affecting several non-target organisms over many years.

The consequences, they said, include decreased efficiency of manure as fertilizer; long-lasting glyphosate-based herbicide contamination of agricultural cycles; “uncontrolled” glyphosate contamination of non-target areas; increased threat to “vulnerable non-target organisms,” and an increased risk of emerging resistances to glyphosate.

The researchers said more studies should be done to reveal the extent of glyphosate contamination in organic fertilizers and how that impacts sustainability.

The Finland research adds to evidence of the dangers of glyphosate residues in fertilizer, according to agricultural experts.

“The impacts of glyphosate residue that have accumulated in poultry excrements is a largely overlooked area of research,”  said Rodale Institute soil scientist, Dr. Yichao Rui. “But what research does exist has shown that those residues can have a negative effect on crops, if poultry manure was used as a fertilizer. Glyphosate residues in fertilizers have been shown to have negative effects on plants, soil microbiomes, and microbes associated with plants and animals including humans through the food chain. When this contamination is unintentionally spread through fertilizer, it places a severe strain on biodiversity and ecosystem functions and services.”

Worldwide 9.4 million tons of glyphosate have been sprayed on fields – enough to spray nearly half a pound of Roundup on every cultivated acre of land in the world.

In 2015, the World Health Organization’s International Agency for Research on Cancer (IARC) classified glyphosate as “probably carcinogenic to humans” after reviewing years of published and peer-reviewed scientific studies. The team of international scientists found there was a particular association between glyphosate and non-Hodgkin lymphoma.

Tens of thousands of people in the United States suffering from non-Hodgkin lymphoma have sued Monsanto, and in three trials held to date, juries have found that the company’s glyphosate herbicides were to blame for causing the cancers.

Additionally, an assortment of animal studies released this summer indicate that glyphosate exposures impact reproductive organs and could threaten fertility, adding fresh evidence that the weed killing agent might be an endocrine disruptor. Endocrine disrupting chemicals may mimic or interfere with the body’s hormones and are linked with developmental and reproductive problems as well as brain and immune system dysfunction.

Dying man asks California Supreme Court to restore jury award in Monsanto Roundup case

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The school groundskeeper who won the first-ever trial over allegations that Monsanto’s Roundup causes cancer is asking the California Supreme Court to restore $250 million in punitive damages awarded by the jury who heard his case but then slashed by an appeals court to $20.5 million.

Notably, the appeal by plaintiff Dewayne “Lee” Johnson has larger implications than his own individual case. Johnson’s lawyer are urging the court to address a legal twist that can leave people such as Johnson who are facing death in the near term with lower damage awards than others expected to live many years in suffering and pain.

“It is long past time for California courts to recognize, as other courts do, that life itself has value and that those who maliciously deprive a plaintiff of years of life should be made to fully compensate that plaintiff and be punished accordingly,” Johnson’s attorneys wrote in their request for the state supreme court review. “The jury ascribed meaningful value to Mr. Johnson’s life, and for that he is grateful. He asks this Court to respect the jury’s decision and restore that value. ”

A unanimous jury found in August 2018 that exposure to Monsanto’s glyphosate-based herbicides, known best by the brand name Roundup, caused Johnson to develop non-Hodgkin lymphoma. The jury further found that Monsanto acted to hide the risks of its products in conduct so egregious that the company should pay Johnson $250 million in punitive damages on top of $39 million in past and future compensatory damages.

Upon appeal from Monsanto, which was purchased by the German company Bayer AG in 2018, the trial judge reduced the $289 million to $78 million. Monsanto appealed seeking either a new trial or a reduced award. Johnson cross-appealed seeking reinstatement of his full damage award.

The appeals court in the case then cut the award to $20.5 million, citing the fact that Johnson was expected to live only a short time.

The appeals court reduced the damages award despite finding there was “abundant” evidence that glyphosate, together with the other ingredients in Roundup products, caused Johnson’s cancer and that “there was overwhelming evidence that Johnson has suffered, and will continue to suffer for the rest of his life, significant pain and suffering.”

The Johnson trial was covered by media outlets around the world and put a spotlight on Monsanto’s efforts to manipulate the scientific record on glyphosate and Roundup and its efforts to quiet critics and influence regulators.  Lawyers for Johnson presented jurors with internal company emails and other records showing Monsanto scientists discussing ghostwriting scientific papers to try to shore up support for the safety of the company’s products, along with communications detailing plans to discredit critics, and to quash a government evaluation of the toxicity of glyphosate, the key chemical in Monsanto’s products.

Johnson’s trial victory spurred a frenzied filing of tens of thousands of additional lawsuits. Monsanto lost three out of three trials before agreeing this June to pay more than $10 billion to settle close to 100,000 such claims.

The settlement is still in flux, however, as Bayer wrestles with how to forestall future litigation.

In an interview, Johnson said he knew the legal battle with Monsanto could continue for many more years but he was committed to trying to hold the company accountable. He has managed to keep his illness in check so far with regular chemotherapy and radiation treatments, but is not certain how long that will continue.

“I don’t think any amount would be enough to punish that company,” Johnson said.

Appeals court denies Monsanto bid for Roundup case rehearing

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A California appeals court on Tuesday rejected Monsanto’s effort to trim $4 million from the amount of money it owes a California groundskeeper who is struggling to survive cancer that a jury found was caused by the man’s exposure to Monsanto’s Roundup herbicides.

The Court of Appeal for the First Appellate District of California also rejected the company’s request for a rehearing of the matter.  The court’s decision followed its ruling last month slamming Monsanto  for its denial of the strength of the evidence that its glyphosate-based weed killers cause cancer. In that July ruling, the court said that plaintiff Dewayne “Lee” Johnson had presented “abundant” evidence that Monsanto’s weed killer caused his cancer.  “Expert after expert provided evidence both that Roundup products are capable of causing non-Hodgkin’s lymphoma…  and caused Johnson’s cancer in particular,” the appeals court stated in its July decision.

In that decision from last month, the appeals court did, however, cut the damage award owed to Johnson, ordering Monsanto to pay $20.5 million, down from $78 million ordered by the trial judge and down from $289 million ordered by the jury who decided Johnson’s case in August 2018.

In addition to the $20.5 million Monsanto owes Johnson, the company is ordered to pay $519,000 in costs.

Monsanto, which was bought by Bayer AG in 2018, had urged the court to cut the award to Johnson to $16.5 million.

Dicamba decision also stands

Tuesday’s court decision followed a decision issued Monday by the U.S. Court of Appeals for the Ninth Circuit denying a rehearing of the court’s June decision to vacate the approval of the dicamba-based weed killing product Bayer inherited from Monsanto. That June ruling also effectively banned dicamba-based herbicides made by BASF and Corteva Agriscience.

The companies had petitioned for a broader group of judges from the Ninth Circuit judges to rehear the case, arguing that the decision to revoke regulatory approvals for the products was unfair. But the court flatly rejected that rehearing request.

In its June decision, the Ninth Circuit said the Environmental Protection Agency (EPA) had violated the law when it approved the dicamba products developed by Monsanto/Bayer, BASF and Corteva.

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

The court decision banning the company’s dicamba products triggered an uproar in farm country because many soybean and cotton farmers planted millions of acres of genetically altered dicamba-tolerant crops developed by Monsanto with the intent of treating weeds in those fields with the dicamba herbicides made by the three companies. Similar to “Roundup Ready” glyphosate-tolerant crops, the dicamba-tolerant crops allow farmers to spray dicamba over their fields tyo kill weeds without harming their crops.

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

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

Some U.S. Roundup plaintiffs balk at signing Bayer settlement deals; $160,000 average payout eyed

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Plaintiffs in the U.S. Roundup litigation are starting to learn the details of what Bayer AG’s $10 billion settlement of cancer claims actually means for them individually, and some are not liking what they see.

Bayer said in late June it had negotiated settlements with several major plaintiffs’ law firms in a deal that would effectively close out the bulk of more than 100,000 pending claims against Monsanto, which was purchased by Bayer in 2018. Plaintiffs in the litigation allege they developed non-Hodgkin lymphoma from exposure to Monsanto’s Roundup and other herbicides made with a chemical called glyphosate, and that Monsanto covered up the risks.

While the deal initially seemed like good news for the plaintiffs – some who’ve struggled for years with cancer treatments and others who sued on behalf of deceased spouses – many are finding they could end up with little to no money, depending upon a range of factors. The law firms, however, could pocket hundreds of millions of dollars.

“It’s a win for the law firms and a slap in the face of the harmed” said one plaintiff, who did not want to be named.

Plaintiffs are being told they must decide in the next few weeks if they’re going to accept the settlements, even though they won’t know how much they will personally be paid until much later. All the settlement deals order the plaintiffs not to talk publicly about the details, threatening them with sanctions if they discuss the settlements with anyone other than “immediate family members” or a financial advisor.

This has angered some who say they are considering rejecting the settlements in favor of seeking out other law firms to handle their claims. This reporter has reviewed documents sent to multiple plaintiffs.

For those who do agree, payments could be made as early as February, though the process of paying all the plaintiffs is expected to stretch out a year or more. Communications sent out from law firms to their Roundup clients sketch out both the process each cancer-stricken individual will need to go through to obtain a financial payout and what those payouts might amount to. The terms of the deals vary from law firm to law firm, meaning similarly situated plaintiffs may end up with vastly different individual settlements.

One of the stronger deals appears to be one negotiated by The Miller Firm, and even that is disappointing to some of the firm’s clients. In communications to clients, the firm said it was able to negotiate roughly $849 million from Bayer to cover the claims of more than 5,000 Roundup clients. The firm estimates the average gross settlement value for each plaintiff at roughly $160,000. That gross amount will further be reduced by the deduction of attorneys’ fees and costs.

Though attorneys’ fees can vary by firm and plaintiff, many in the Roundup litigation are charging 30-40 percent in contingency fees.

To be eligible for the settlement, plaintiffs must have medical records supporting diagnosis of certain types of non-Hodgkin lymphoma and be able to show they were exposed at least a year before their diagnosis.

The Miller Firm has been at the forefront of the Roundup litigation since the outset, unearthing many of the damning internal Monsanto documents that helped win all three Roundup trials held to date. The Miller Firm handled two of those trials, bringing in lawyers from the Los Angeles firm of Baum Hedlund Aristei & Goldman to help with the case of  Dewayne “Lee” Johnson after Miller Firm founder Mike Miller was severely injured in an accident just prior to trial. The two firms additionally worked together in winning 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.

Earlier this month, a California appeals court rejected Monsanto’s effort to overturn the Johnson verdict, ruling that there was “abundant” evidence that Roundup products caused Johnson’s cancer but reducing Johnson’s award to $20.5 million. Appeals are still pending in the other two verdicts against Monsanto.

Scoring Plaintiffs

To determine how much each plaintiff receives from the settlement with Bayer, a third-party administrator will score each individual using factors that include the type of non-Hodgkin lymphoma each plaintiff  developed; the plaintiff’s age at diagnosis; the severity of the person’s cancer and the extent of treatment they endured; other risk factors; and the amount of exposure they had to Monsanto herbicides.

One element of the settlement that caught many plaintiffs off guard was learning that those who ultimately receive money from Bayer will have to use their funds to pay back part of the costs of their cancer treatments that were covered by Medicare or private insurance. With some cancer treatments running into the hundreds of thousands and even millions of dollars, that could quickly erase a plaintiff’s payout. The law firms are lining up third-party contractors who will negotiate with the insurance providers to seek discounted reimbursements, the plaintiffs have been told. Typically in this sort of mass tort litigation, those medical liens can be substantially reduced, the law firms said.

In one aspect of the deal welcomed by plaintiffs, the settlements will be structured to avoid tax liability, according to the information provided to plaintiffs.

Risks in Not Settling  

The law firms must get a majority of their plaintiffs to agree to the terms of the settlements in order for them to proceed. According to the information provided to plaintiffs, settlements are desired now because of a number of risks associated with continuing to pursue additional trials. Among the risks identified:

  • Bayer has threatened to file for bankruptcy, and if the company did take that route, settling Roundup claims would take far longer and likely ultimately result in far less money for plaintiffs.
  • The Environmental Protection Agency (EPA) issued a letter last August telling Monsanto that the agency won’t allow for a cancer warning on Roundup. That helps Monsanto’s future chances of prevailing in court.
  • Covid-related court delays mean additional Roundup trials are unlikely for a year or more.

It is not unusual for plaintiffs in mass tort litigation to walk away disappointed even with seemingly large settlements negotiated for their cases.  The 2019 book “Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation” by Elizabeth Chamblee Burch, the Fuller E. Callaway Chair of Law at the University of Georgia,  makes the case that a lack of checks and balances in mass tort litigation benefits nearly everyone involved except the plaintiffs.

Burch cites as an example litigation over the acid-reflux medicine Propulsid, and said she found that of the 6,012 plaintiffs who entered into the settlement program, only 37 ultimately received any money. The rest received no payouts but had already agreed to dismiss their lawsuits as a condition of entering into the settlement program. Those 37 plaintiffs collectively received little more than $6.5 million (roughly $175,000 each on average), while the lead law firms for the plaintiffs received $27 million, according to Burch,

Setting aside what individual plaintiffs may or may not walk away with,  some legal observers close to the Roundup litigation said a greater good has been achieved with the exposure of corporate wrongdoing by Monsanto.

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.

Several countries around the world, as well as local governments and school districts, have moved to ban glyphosate herbicides, and/or other pesticides because of the revelations of the Roundup litigation.

(Story first appeared in Environmental Health News.)

Appeals court upholds groundskeeper’s Roundup cancer trial win over Monsanto

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In yet another court loss for Monsanto owner Bayer AG, an appeals court rejected the company’s effort to overturn the trial victory notched by a California school groundskeeper who alleged exposure to Monsanto’s glyphosate herbicides caused him to develop cancer, though the court did say damages should be cut to $20.5 million.

The Court of Appeal for the First Appellate District of California said Monday that Monsanto’s arguments were unpersuasive and Dewayne “Lee” Johnson was entitled to collect $10.25 million in  compensatory damages and another $10.25 million in punitive damages. That is down from a total of $78 million the trial judge allowed.

“In our view, Johnson presented abundant—and certainly substantial— evidence that glyphosate, together with the other ingredients in Roundup products, caused his cancer,” the court stated. “Expert after expert provided evidence both that Roundup products are capable of causing non-Hodgkin’s lymphoma…  and caused Johnson’s cancer in particular.”

The court further noted that “there was overwhelming evidence that Johnson has suffered, and will continue to suffer for the rest of his life, significant pain and suffering.”

The court said that Monsanto’s argument that scientific findings about glyphosate’s links to cancer constituted a “minority view” was not supported.

Notably, the appeals court added that punitive damages were in order because there was sufficient evidence that Monsanto acted with “willful and conscious disregard of others’ safety.”

Mike Miller, whose Virginia law firm represented Johnson at trial along with the Baum Hedlund Aristei & Goldman firm of Los Angeles, said he was cheered at the court’s confirmation that Johnson developed cancer from his use of Roundup and that the court affirmed the award of punitive damages for “Monsanto’s willful misconduct.”

“Mr Johnson continues to suffer from his injuries. We are proud to fight for Mr Johnson and his pursuit of justice,” Miller said.

Monsanto owes annual interest at the rate of 10 percent from April of 2018 until it pays the final judgment.

The reduction in damages is tied in part to the fact that doctors have told Johnson his cancer is terminal and he is not expected to live very much longer. The court agreed with Monsanto that because compensatory damages are designed to compensate for future pain, mental suffering, loss of enjoyment of life, physical impairment, etc…  Johnson’s short life expectancy legally means the future “non-economic” damages awarded by the trial court must be reduced.

Brent Wisner, one of Johnson’s trial attorneys, said the reduction in damages was the result of a “deep flaw in California tort law.”

“Basically, California law does not allow a plaintiff to recover for a shortened life expectancy,” Wisner said. “This effectively rewards a defendant for killing a plaintiff, as opposed to just injuring him. It is madness.”

A spotlight on Monsanto’s conduct

It was just two months after Bayer bought Monsanto, in August 2018, that a unanimous jury awarded Johnson $289 million, including $250 million in punitive damages, finding that not only did Monsanto’s herbicides cause Johnson to develop non-Hodgkin lymphoma, but that the company knew of the cancer risks and failed to warn Johnson. The lawsuit involved two Monsanto glyphosate herbicide products – Roundup and Ranger Pro.

The trial judge lowered the total verdict to $78 million but Monsanto appealed the reduced amount. Johnson cross appealed to reinstate the $289 million verdict.

The Johnson trial was covered by media outlets around the world and put a spotlight on questionable Monsanto conduct. Lawyers for Johnson presented jurors with internal company emails and other records showing Monsanto scientists discussing ghostwriting scientific papers to try to shore up support for the safety of the company’s products, along with communications detailing plans to discredit critics, and to quash a government evaluation of the toxicity of glyphosate, the key chemical in Monsanto’s products.

Internal documents also showed that Monsanto expected the International Agency for Research on Cancer would classify glyphosate as a probable or possible human carcinogen in March of 2015 (the classification was as a probable carcinogen) and worked out a plan in advance to discredit the cancer scientists after they issued their classification.

Tens of thousands of plaintiffs have filed lawsuits against Monsanto making claims similar to Johnson’s, and two additional trials have taken place since the Johnson trial. Both those trials also resulted in large verdicts against Monsanto. Both are also under appeal.

In June, Bayer said it had reached a  settlement agreement with attorneys representing 75 percent of the roughly 125,000 filed and yet-to-be filed claims initiated by U.S. plaintiffs who blame exposure to Monsanto’s Roundup for their development of non-Hodgkin lymphoma. Bayer said it will provide $8.8 billion to $9.6 billion to resolve the litigation. But lawyers representing more than 20,000 additional plaintiffs say they have not agreed to settle with Bayer and those lawsuits are expected to continue to work their way through the court system.

In a statement issued after the court ruling, Bayer said it stands behind the safety of Roundup: “The appeal court’s decision to reduce the compensatory and punitive damages is a step in the right direction, but we continue to believe that the jury’s verdict and damage awards are inconsistent with the evidence at trial and the law. Monsanto will consider its legal options, including filing an appeal with the Supreme Court of California.”

EPA removes name of U.S. official from warning of glyphosate cancer links

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(Update with EPA explanation)

In an unusual move, the Environmental Protection Agency (EPA) has deleted the name of a high-ranking U.S.  health official from a public comment that warned of cancer links to the weed killing chemical glyphosate and called for a halt to industry manipulation of research.

The public comment in question was submitted to the EPA and posted on the agency’s website under the name of Patrick Breysse, the director of the National Center for Environmental Health and the Agency for Toxic Substances and Disease Registry (ATSDR). The ATSDR is part of the U.S. Department of Health and Human Services.

The comment under Breysse’s name was filed last year with the EPA in response to an updated agency review of glyphosate and urged the agency to review “documented evidence” that glyphosate was harmful and should be banned.

For months the comment sat on the EPA website under Breysse’s name. It was only after U.S. Right to Know sought commentary last week from Breysse about his statement that the EPA removed his name. The comment now is attributed to “Anonymous,” after Breysse’s employer determined it was not actually submitted by him, according to the EPA.

Glyphosate is the active ingredient in Roundup and other herbicides and was popularized by Monsanto, a unit of Bayer AG. It is considered the most widely used herbicide in the world. It is also one of the most controversial and is the subject of lawsuits brought by tens of thousands of people who claim they developed cancer because of exposure to Roundup and other glyphosate herbicides made by Monsanto.

The EPA has steadfastly defended the safety of glyphosate despite findings by many independent scientists that glyphosate herbicides can cause a range of illness and disease, including non-Hodgkin lymphoma.

The comment under Breysse’s name contradicted the EPA’s position:

“Numerous studies have linked its use to an increase in lymphomas, and it’s time we stopped letting the chemical industry manipulate research to serve its own interest. U.S. citizens need to trust the Environmental Protection Agency to operate in our best interest, which means weighing evidence from neutral scientific sources not vested in the outcome.”

Notably, Breysse is also the ATSDR official who was pressured by EPA officials in 2015 at the behest of Monsanto to put a halt to a review of glyphosate toxicity then just getting underway at the ATSDR. The push to delay the ATSDR review of glyphosate came because Monsanto feared the ATSDR would agree with the International Agency for Research on Cancer (IARC) in finding cancer links to glyphosate, internal Monsanto correspondence shows.

One internal Monsanto email said EPA official Jess Rowland told Monsanto he should “get a medal” if he was successful in killing the ATSDR glyphosate review.

The ATSDR review was in fact delayed until 2019 after the pressure from Monsanto and EPA officials. When the report was finally released, it did confirm Monsanto’s fears, lending support to the 2015 IARC concerns about links between cancer and glyphosate. The ATSDR report was signed by Breysse.

When asked about the change in attribution to the public comment, the EPA said it removed Breysse’s name after the Centers for Disease Control and Prevention, which oversees ATSDR, told EPA the comment was not submitted by Breysse and asked that it be deleted or edited. Rather than delete the comment, EPA elected to keep the comment in the docket but changed the submitter’s name to “anonymous.”

The EPA said it does not screen or authenticate comments submitted.

The press office for the National Center for Environmental Health also said Breysse did not submit the comment in question. Breysse did not respond to a request to confirm or deny his authorship of the comment on the EPA website.

The original comment and the changed one are shown below:

Bayer backs away from plan to contain future Roundup cancer claims

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Monsanto owner Bayer AG is backing away from a plan to contain future Roundup cancer claims after a federal judge made it clear he would not approve the scheme, which would delay new trials and limit jury decision-making.

The plan concocted by Bayer and a small group of lawyers was filed last month in U.S. District Court for the Northern District of California as part of a effort by Bayer to put an end to sweeping litigation that has so far led to three losses in three jury trials, staggering punitive damage awards and shareholder discontent. More than 100,000 people in the United States claim exposure to Monsanto’s glyphosate-based Roundup herbicides caused them to develop non-Hodgkin lymphoma (NHL) and that Monsanto long knew about and covered up the cancer risks.

On Monday Judge Vince Chhabria issued an order setting a hearing on the matter for July 24 and making it clear he would not approve the settlement plan. He was “skeptical of the propriety and fairness of the proposed settlement,” Chhabria wrote in the order.

Prior to the judge’s order, multiple parties filed notices of their own opposition to the Bayer plan; citing “major deviations from ordinary practices” called for in the proposed settlement.

In response, on Wednesday the group of lawyers who had structured the deal with Bayer filed a notice of withdrawal of their plan.

The proposed settlement plan for future class action litigation was separate from the settlement agreement Bayer made with lawyers for plaintiffs who have already filed cases and is designed to help Bayer contain and manage future liability.  Under the structure put together by Bayer and a small group of plaintiffs’ lawyers the class action settlement would have applied to anyone exposed to Roundup who had not filed a lawsuit or retained a lawyer as of June 24, 2020, regardless of whether or not that person already had been diagnosed with cancer they believe was due to Roundup exposure.

The plan would have delayed the filing of new cases for four years, and called for the establishment of a five-member “science panel” that would take any future findings on cancer claims out of the hands of  juries. Instead, a “Class Science Panel” would be established to determine whether Roundup can cause non-Hodgkin lymphoma, and if so, at what minimum exposure levels.  Bayer would get to appoint two of the five panel members. If the panel determined there was no causal connection between Roundup and non-Hodgkin lymphoma then the class members would be barred from future such claims.

Judge Chhabria took issue with the whole idea of a science panel. In his order, the judge wrote:

“In an area where the science may be evolving, how could it be appropriate to lock in a decision from a panel of scientists for all future cases? For examine, imagine the panel decides in 2023 that Roundup is not capable of causing cancer. Then imagine that a new, reliable study is published in 2028 which strongly undermines the panel’s conclusion. If a Roundup user is diagnosed with NHL in 2030, is it appropriate to tell them that they’re bound by the 2023 decision of the panel because they did not opt out of a settlement in 2020?”

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

The plaintiffs’  attorneys who put the plan together with Bayer stood to make more than $150 million in fees payable by Bayer. They are not the same law firms that have led the litigation to date. This group of law firms include Lieff Cabraser Heimann & Bernstein; Audet & Partners; The Dugan Law Firm; and lawyer Samuel Issacharoff, Reiss Professor of Constitutional Law at New York University School of Law.

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

It is not clear how the withdrawal of this proposed class action settlement plan might impact the larger settlement of existing claims. Bayer said last month it will pay up to $9.6 billion to resolve roughly 75 percent of the current claims and will continue working to settle the rest. That settlement does not require court approval.

Bayer issued a statement Wednesday saying it remains “strongly committed to a resolution that simultaneously addresses both the current litigation on reasonable terms and a viable solution to manage and resolve potential future litigation.”

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

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

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

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

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

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

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

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

Widely used

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

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

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

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

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

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

Human subjects

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

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

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

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

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

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