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.

Bayer inks deals with three Roundup cancer law firms as settlement progresses

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Bayer AG has reached final settlement terms with three major law firms representing thousands of plaintiffs who claim exposure to Monsanto’s glyphosate-based herbicides caused them to develop non-Hodgkin lymphoma.

The new deals have been  made with California-based Baum Hedlund Aristei &  Goldman law firm; the Andrus Wagstaff firm from Colorado; and the Moore Law Group of Kentucky. The firms each filed notification of the deals with the U.S. District Court for the Northern District of California on Monday.

The deals come after allegations by the three law firms that Bayer was reneging on terms of agreements already made months earlier. The firms told the court Monday that they each now have a “fully-executed and binding Master Settlement Agreement with Monsanto.”

Notably, the deals mark a critical step toward bringing closure to the five-year-old mass tort litigation that now tallies more than 100,000 claims brought by people from around the United States who used Roundup and other glyphosate-based herbicides made by Monsanto before they developed cancer.

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.

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 only two of the major law firms in the sweeping litigation had final signed agreements with Bayer – The Miller Firm and Weitz & Luxenburg, according to sources close to the negotiations. The Baum firm, the Andrus Wagstaff firm and the Moore firm had memorandums of understanding but not final agreements, sources said.

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. Bayer tried to get court approval for a plan that would have delayed the filing of new Roundup cancer cases for four years, and would have established a five-member “science panel” to determine whether Roundup can cause non-Hodgkin lymphoma, and if so, at what minimum exposure levels.  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.

U.S. District Judge Vince Chhabria rejected the plan,  sending Bayer back to the drawing board.

Bayer had said Thursday that it was making progress in the development of a “revised” plan to resolve potential future Roundup litigation. The details of the revised class plan will be finalized over the coming weeks, according to Bayer.

Several plaintiffs have been unhappy with the settlement, saying they will not receive very much money despite years of expensive cancer treatments and ongoing pain and suffering. Indeed, many plaintiffs have died while waiting for a resolution.

On September 9, lawyers for Marie Bernice Dinner and her husband Bruce Dinner filed notice with the court that 73-year-old Marie died on June 2 from the non-Hodgkin lymphoma she and her husband alleged was caused by her exposure to Monsanto’s weed killers.

Lawyers for Bruce Dinner asked the court to allow them to amend the complaint against Monsanto to add a claim for wrongful death. The couple was married 53 years and have two children and four grandchildren.

“Marie Bernice was an extraordinary person.  Her death should have been prevented,” said lawyer Beth Klein, who is representing the family.

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.

Bayer asks appeals court to again cut Roundup damage award owed to California groundskeeper with cancer

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Bayer is asking a California appeals court to trim $4 million from the amount of money it owes a California groundskeeper struggling to survive cancer that a trial court found was caused by the man’s exposure to Monsanto’s Roundup herbicides.

In a “petition for rehearing” filed Monday with the Court of Appeal for the First Appellate District of California, lawyers for Monsanto and its German owner Bayer AG asked the court to cut from $20.5 million to $16.5 million the damages awarded to Dewayne “Lee” Johnson.

The appeals court “reached an erroneous decision based on a mistake of law,” according to the filing by Monsanto. The issue turns on how long Johnson is expected to live. Because evidence at trial found Johnson was expected to live “no more than two years,” he should not receive money for future pain and suffering allocated for any longer than two years – despite the fact that he continues to outlive predictions, the company argues.

Under the calculations requested by Monsanto, the court should cut from $4 million to $2 million the amount ordered for future non-economic damages, (pain and suffering.) That would reduce the overall compensatory damages (past and future) to $8,253,209. While still insisting it should not owe any punitive damages, if punitive damages are awarded they should be tallied at no more than a 1-to-1 ratio against the compensatory, bringing the total to $16,506,418, Monsanto argues in its filing.

Johnson was initially awarded $289 million by a jury in August 2018, making him the first plaintiff to win at the trial level over claims that exposure to Monsanto’s glyphosate-based herbicides causes non-Hodgkin lymphoma and that Monsanto hid the risks. The trial judge lowered the award 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 ruled last month that there was “abundant” evidence that glyphosate, together with the other ingredients in Roundup products, caused Johnson’s cancer. And the court found that “there was overwhelming evidence that Johnson has suffered, and will continue to suffer for the rest of his life, significant pain and suffering.”

But the court said damages should be reduced to a total of $20.5 million because of the issue of Johnson’s short life expectancy.

Along with its demand for a further reduction in damages, Monsanto is asking the appeals court to grant a rehearing to “correct its analysis” and “either reverse the judgment with directions to enter judgment
for Monsanto or, at the very least, vacate the award of punitive damages.”

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.

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.

Bayer’s actions to trim damage awards for Monsanto’s trial losses comes as the company seeks to settle close to 100,000 Roundup cancer claims pending around the United States in various courts. Some plaintiffs are unhappy with the settlement terms, and are threatening not to agree to the deal.

Action in Pilliod Appeal 

In separate appellate action related to the Roundup litigation, last week lawyers for Alva and Alberta Pilliod filed a brief asking the California appeals court to order damages awards for the married couple totaling $575 million. The elderly couple – both stricken with debilitating cancer they blame on exposure to Roundup – won more than $2 billion at trial, but the trial judge then lowered the jury award to $87 million.

The slashing of the damage award was excessive, according to lawyers representing the couple, and does not sufficiently punish Monsanto for its wrongdoing.

“The three California juries, four trial judges, and three appellate justices who have reviewed Monsanto’s misconduct have unanimously agreed there is “substantial evidence that Monsanto acted with a willful and conscious disregard of others’ safety,” the Pilliod brief states.  “Monsanto’s claim that it is the victim of “injustice” in this case rings increasingly hollow in light of these unanimous and repeated findings.”

The lawyers are asking the court to award a 10-to-1 ratio of punitive damages to compensatory damages.

“The true victims of injustice in this case are the Pilliods, who have both suffered from a devastating and debilitating disease because of Monsanto’s malfeasance,” the brief states. “The jury, in determining that decent citizens need not tolerate Monsanto’s reprehensible behavior, rightly concluded that only a substantial punitive damage could punish and deter Monsanto.”

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.”

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.”

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

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

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

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

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

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

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

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

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

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

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

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

Below is an excerpt of the judge’s order:

Challenge eyed to class action plan for Bayer Roundup settlement

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Science Panel Selection

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Dicamba Deal

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

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

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

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

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

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

PCB Pollution Settlement 

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

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

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

Appeals court hears arguments over Monsanto’s first Roundup trial loss

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A California jury decision blaming a Monsanto herbicide for a school groundskeeper’s cancer was deeply flawed and incompatible with the law, a Monsanto attorney told a panel of appellate judges on Tuesday.

The company’s glyphosate-based herbicides – popularly known as Roundup – have the full backing of the Environmental Protection Agency (EPA) and “regulators around the world,” attorney David Axelrad told judges with the California Court of Appeal First Appellate District.

Axelrad said Monsanto had no duty to warn anyone about an alleged cancer risk given the regulatory consensus that its weed killers are safe.

It is “fundamentally unfair to hold Monsanto liable and punish it for a product label that accurately reflects not only EPA determination but a worldwide consensus that glyphosate is not carcinogenic,” he argued in the hour-long hearing. The proceeding was held by telephone because of COVID-19 restrictions on courthouse access.

Associate Justice Gabriel Sanchez questioned the validity of that argument:  “You have animal studies… mechanism studies, you have control case studies,” he said, addressing Monsanto’s attorney. “There are a  number of, it seems, published peer reviewed studies… that suggest a statistically significant relationship between glyphosate and lymphoma. So I don’t know that I would agree with you that it has unanimous consensus. Certainly the regulatory agencies seem to be on one side. But there is a lot of other evidence on the other. ”

The appeal stems from the 2018 jury decision in San Francisco Superior Court that ordered Monsanto to pay $289 million to Dewayne “Lee” Johnson, including $250 million in punitive damages.

The trial judge in the Johnson case lowered the award to $78.5 million. But Monsanto appealed the verdict, asking the court to either reverse the trial decision and enter a judgment for Monsanto or reverse and remand the case for a new trial or at least sharply reduce the damages.  Johnson cross-appealed seeking reinstatement of the full jury award.

Johnson is one of tens of thousands of people from around the United States who have sued Monsanto alleging Roundup and other glyphosate-based herbicides made by the company cause non-Hodgkin lymphoma and that the company spent decades covering up the risks.

Johnson gained “preference” status because doctors said his life expectancy was short and that he would likely die within 18 months of the trial. Johnson has confounded the doctors and remains alive and undergoing regular treatments.

Monsanto’s loss to Johnson marked the first of three Roundup trial losses for the company, which was acquired by Germany’s Bayer AG in June 2018 just as the Johnson trial started.

The jury in the Johnson case specifically found – among other things – that Monsanto was negligent in failing to warn Johnson of the cancer risk of its herbicides. But Monsanto argues that the verdict was flawed because of exclusion of key evidence and what the company’s attorneys call the “distortion of reliable science.”

If the appeals court does not order a new trial, Monsanto asked that the judges at least reduce the portion of the jury award for “future noneconomic damages” from $33 million to $1.5 million and to wipe out the punitive damages altogether.

Johnson’s trial attorneys had argued that he should get $1 million a year for pain and suffering over the 33 additional years that he would likely live if he had not gotten cancer.

But Monsanto’s attorneys have said Johnson should get only $1 million a year for pain and suffering during his actual life expectancy or $1.5 million for an 18-month expected future span.

On Tuesday, Axelrad reiterated that point: “Sure a plaintiff can recover during his lifetime for the pain and suffering that might be occasioned by knowing that he has a shortened life expectancy,” he told the judicial panel. “But you cannot recover for pain and suffering that is unlikely to occur in years where you will no longer be living and that is what the plaintiff received in this case.”

Axelrad told the justices that the company had been falsely painted as engaging in misconduct but in fact had properly followed the science and the law. He said, for example, though Johnson’s attorney had accused Monsanto of ghost-writing scientific papers, company scientists had only made “editorial suggestions” for several papers published in the scientific literature.

“Whether or not Monsanto could have been more forthcoming in identifying its involvement in those studies the bottom line is that those studies produced no false or misleading information and there is no indication that any of the authors of those studies would have changed their opinion had Monsanto not provided editorial comment,” he said.

Axelrad said there was no malice and no basis for punitive damages to be leveled against Monsanto. The company’s defense of its glyphosate-based herbicides over the years has been “entirely reasonable and in good faith,” he said.

“There is absolutely no evidence that Monsanto distributed false, misleading or incomplete information, no evidence that its actions prevented the dissemination of information to regulatory agencies needed to review the scientific evidence, no evidence that its actions compromised the ultimate regulatory decision making and no evidence that Monsanto refused to conduct a test or study in order to conceal information about a risk of harm or prevent the discovery of new information about the science of glyphosate,” he said.

Johnson attorney Mike Miller said that Monsanto’s lawyers were attempting to get the appellate court to retry the facts of the case, which is not its role.

“Monsanto misunderstands the appellate function. It is not to reweigh the facts. The facts that were just argued by Monsanto’s counsel were rejected thoroughly by the jury and rejected by the trial judge…” Miller said.

The appellate court should uphold the damages the jury awarded, including the punitive damages,  because Monsanto’s conduct surrounding the science and safety of its glyphosate herbicides was “egregious,” Miller said.

The evidence presented at the Johnson trial showed Monsanto engaged in the ghostwriting of scientific papers while it failed to adequately test its formulated glyphosate herbicides for carcinogenicity risks. The company then initiated “unprecedented” attacks on the credibility of  international cancer scientists who classified glyphosate as a probable human carcinogen in 2015, he told the judicial panel.

“In punitive damages, as you assess the reprehensibility of Monsanto you must factor in the wealth of Monsanto. And the award must be enough to sting,” said Miller. “Under California law unless it changes the conduct it hasn’t fit the purpose of punitive damages.”

The appellate panel has 90 days to issue a ruling.