Appeals court focused on damages question ahead of Johnson v. Monsanto hearing

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A California appeals court looks poised to issue a ruling that would uphold the first U.S. trial victory involving allegations that Monsanto’s Roundup weed killer causes cancer.

The United States Court of Appeal First Appellate District on Wednesday notified lawyers for plaintiff Dewayne “Lee” Johnson and legal counsel for Monsanto that they should be prepared to focus on the question of damages awarded in the case at a hearing scheduled for June 2.

The fact that the court is showing it is interested in discussing what amount of damages are appropriate rather than issues pertaining to Monsanto’s request to overturn the trial loss entirely bodes well for the plaintiff’s side, said legal observers.

Monsanto August 2018 loss to Johnson, a California school groundskeeper, marked the first of three Roundup trial losses for the company, which was acquired by Germany’s Bayer AG nearly two years ago. The jury in the Johnson case found that Monsanto was negligent in failing to warn Johnson of the cancer risk of its herbicides and awarded Johnson $289 million in damages, including $250 million in punitive damages. The trial judge later lowered the award to $78.5 million. But the loss sent Bayer’s shares spirally lower and stoked investor unrest that has persisted as the number of additional Roundup cancer claims filed against Monsanto have grown.

In appealing the verdict, Monsanto asked the court to either reverse the trial decision and enter a judgment for Monsanto or reverse and remand the case for a new trial. Monsanto argued that the verdict was flawed because of exclusion of key evidence and the “distortion of reliable science.” If nothing else,  Monsanto asked the appeals court to 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.  Monsanto’s argument on reducing future non-economic damages is based on the company’s position that Johnson is likely to die soon and thus will not suffer long-term future pain and suffering.

Johnson cross-appealed seeking reinstatement of the full jury award of $289 million.

Ahead of the hearing on the matter, the judicial panel said this: “The parties should be ready to address the following issue at oral argument, currently scheduled for June 2, 2020. Assume that this court agrees with Monsanto Company that the award of future noneconomic damages should be reduced. If the court directs such a reduction, should it also reduce the award of punitive damages to maintain the trial court’s 1:1 ratio of compensatory damages to punitive damages?”

In a separate matter, the court last month said it was rejecting an application by the California Attorney General to file an amicus brief on Johnson’s side.

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.

In its appeal, Monsanto argued that jurors were acting on emotion rather than scientific fact and “that there is no evidence that Monsanto had actual knowledge that its glyphosate-based herbicides cause cancer. Nor could there be, when the scientific consensus, consistently accepted by EPA and other regulators around the world, contradicts that conclusion. It was not malicious for the regulators to reach this judgment, and it was not malicious for Monsanto to share their view of the science.”

Tens of thousands of plaintiffs have filed suit 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.

Bayer and lawyers for more than 50,000 plaintiffs have been trying to negotiate a national settlement for the last year but Bayer recently backed away from some already negotiated settlement amounts. With courthouses closed around the country, the plaintiffs’ attorneys have lost the near-term leverage they had when multiple new trials were set to take place this summer and fall.

Bayer shareholder meeting draws protests, pleas from cancer patients

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The Bayer AG annual shareholders’ meeting got underway Tuesday in Germany, drawing the attention of not only investors and analysts but also activists, lawyers and cancer patients who want to see Bayer make amends for alleged misdeeds by Monsanto, which Bayer bought two years ago.

The meeting was to be an in-person event in Bonn, Germany but due to fears about large gatherings that could spread the Covid-19 virus, Bayer instead is hosting a video webcast  of the meeting.

On Monday the company announced a “good start to 2020,” reporting higher sales and profits through all divisions driven in part by strong demand within its Consumer Health division related to the Covid-19 pandemic.

The shareholders’ meeting comes as Bayer is facing legal claims in the United States brought by roughly 52,500 plaintiffs alleging that exposure to Monsanto’s glyphosate-based herbicides such as Roundup caused them or their loved ones to develop non-Hodgkin lymphoma (NHL). They allege Monsanto was aware of the risks and should have warned consumers but instead sought to manipulate the scientific record and regulators.

Three trials have been held to date and Bayer lost all three as juries awarded more than $2 billion to four plaintiffs, though trial judges later reduced the awards. The trial losses angered investors and pushed share prices to the lowest levels in roughly seven years,  erasing more than 40 percent of Bayer’s market value at one point. Some investors called for Bayer CEO Werner Baumann to be ousted for championing the Monsanto acquisition, which closed in June of 2018 just as the first trial was getting underway.

Bayer and plaintiffs’ attorneys have been engaged in settlement talks for the last year and appeared close to a deal that would resolve a majority of the claims before the onset of Covid-19.

Virus-related government closures, including of U.S. courthouses, have eliminated the possibility of additional trials in the near future, and Bayer has seized on its fresh leverage to walk back some of its negotiated settlements, according to sources close to the talks.

Bayer said Monday it will “continue to consider a solution only if it is financially reasonable and puts in place a mechanism to resolve potential future claims efficiently. Against the background of a looming recession and looking at, in part, considerable liquidity challenges, this applies now more than ever.”

Despite the lack of an in-person meeting, several individuals and organizations are hoping to make their criticisms of the company known. One group representing beekeepers said it was running online ads redirecting people searching for Bayer AGM on Google to an online stream featuring beekeepers talking about the impacts of Bayer’s pesticides on bees.

Several people involved in the Roundup litigation also spoke out.

“It’s time for the Bayer board of directors to step up and do what is right,” said Thomas Bolger, a 68-year-old man from Texas who was diagnosed with non-Hodgkin lymphoma in 2013 after using Roundup since 1982. Bolger recorded a video message to Bayer, detailing his ordeal with cancer.

Robyndee Laumbach, a 50-year-old Texas woman who said her work in cotton genetics exposed her repeatedly to Roundup, also made a video message for Bayer. “Cancer is bad, any which way you look at it. I’m completely damaged and scarred and I will be for the remainder of my life,” she said.

Both Laumbach and Bolger are among the people suing Monsanto.

Roundup litigation plaintiff Michelle Taranto also made a video message on behalf of her husband to share with Bayer. Rose said her husband will soon be entering his third round of treatments “that will hopefully save his life.” She asked Bayer to stop selling Roundup.

“Our lives have been diminished to endless hospital visits, countless painful treatments and expensive scary hospital stays,” Taranto said.

Maine Christmas tree farm operator Jim Hayes made a video message describing being diagnosed with Stage 4 NHL in 2016 after using Roundup on his farm for years. Hayes said he went through six rounds of chemotherapy and a stem cell transplant before being declared in remission. He now fears his cancer will return.

“I love my life. I love my family. I trusted the product. Clearly it is not safe for everyone to use,” Hayes said.

One Roundup litigation plaintiff who only wanted to be identified by his first name, Chuck, also made a video message for Bayer.

“I believe Bayer should be doing everything in their power to fix the problem that Monsanto and their product Roundup has caused thousands of individuals like myself who thought we were just using a harmless weed killer,” he said. “Although my cancer is incurable, Bayer can prevent future people from developing this horrible disease by taking this product Roundup off the shelf now. Bayer should also be accountable for everyone that now has to deal with this horrible disease every day.”

Glyphosate Fact Sheet: Cancer and Other Health Concerns

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Glyphosate, a synthetic herbicide patented in 1974 by the Monsanto Company and now manufactured and sold by many companies in hundreds of products, has been associated with cancer and other health concerns. Glyphosate is best known as the active ingredient in Roundup-branded herbicides, and the herbicide used with “Roundup Ready” genetically modified organisms (GMOs).

Herbicide tolerance is the most prevalent GMO trait engineered into food crops, with some 90% of corn and 94% of soybeans in the U.S. engineered to tolerate herbicides, according to USDA data. A 2017 study found that Americans’ exposure to glyphosate increased approximately 500 percent since Roundup Ready GMO crops were introduced in the U.S in 1996. Here are some key facts about glyphosate:

Most Widely Used Pesticide

According to a February 2016 study, glyphosate is the most widely used pesticide: “In the U.S., no pesticide has come remotely close to such intensive and widespread use.” Findings include:

  • Americans have applied 1.8 million tons of glyphosate since its introduction in 1974.
  • Worldwide 9.4 million tons of the chemical has been sprayed on fields – enough to spray nearly half a pound of Roundup on every cultivated acre of land in the world.
  • Globally, glyphosate use has risen almost 15-fold since Roundup Ready GMO crops were introduced.

Statements from scientists and health care providers 

Cancer concerns

The scientific literature and regulatory conclusions regarding glyphosate and glyphosate-based herbicides show a mix of findings, making the safety of the herbicide a hotly debated subject. 

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.

U.S. agencies: At the time of the IARC classification, the Environmental Protection Agency (EPA) was conducting a registration review. The EPA’s Cancer Assessment Review Committee (CARC) issued a report in September 2016 concluding that glyphosate was “not likely to be carcinogenic to humans” at doses relevant to human health. In December 2016, the EPA convened a Scientific Advisory Panel to review the report; members were divided in their assessment of EPA’s work, with some finding the EPA erred in how it evaluated certain research. Additionally, the EPA’s Office of Research and Development determined that EPA’s Office of Pesticide Programs had not followed proper protocols in its evaluation of glyphosate, and said the evidence could be deemed to support a “likely” carcinogenic or “suggestive” evidence of carcinogenicity classification. Nevertheless the EPA issued a draft report on glyphosate in December 2017 continuing to hold that the chemical is not likely to be carcinogenic. In April 2019, the EPA reaffirmed its position that glyphosate poses no risk to public health. But earlier that same month, the U.S. Agency for Toxic Substances and Disease Registry (ATSDR) reported that there are links between glyphosate and cancer. According to the draft report from ATSDR, “numerous studies reported risk ratios greater than one for associations between glyphosate exposure and risk of non-Hodgkin’s lymphoma or multiple myeloma.” 

European Union: The European Food Safety Authority and the European Chemicals Agency have said glyphosate is not likely to be carcinogenic to humans. A March 2017 report by environmental and consumer groups argued that regulators relied improperly on research that was directed and manipulated by the chemical industry. A 2019 study found that Germany’s Federal Institute for Risk Assessment report on glyphosate, which found no cancer risk, included sections of text that had been plagiarized from Monsanto studies.  In February 2020, reports surfaced that 24 scientific studies submitted to the German regulators to prove the safety of glyphosate came from a large German laboratory that has been accused of fraud and other wrongdoing.

WHO/FAO Joint Meeting on Pesticide Residues determined in 2016 that glyphosate was unlikely to pose a carcinogenic risk to humans from exposure through the diet, but this finding was tarnished by conflict of interest concerns after it came to light that the chair and co-chair of the group also held leadership positions with the International Life Sciences Institute, a group funded in part by Monsanto and one of its lobbying organizations.

California OEHHA: On March 28, 2017, the California Environmental Protection Agency’s Office of Environmental Health Hazard Assessment confirmed it would add glyphosate to California’s Proposition 65 list of chemicals known to cause cancer. Monsanto sued to block the action but the case was dismissed. In a separate case, the court found that California could not require cancer warnings for products containing glyphosate. On June 12, 2018, a U.S. District Court denied the California Attorney General’s request for the court to reconsider the decision. The court found that California could only require commercial speech that disclosed “purely factual and uncontroversial information,” and the science surrounding glyphosate carcinogenicity was not proven.

Agricultural Health Study: A long-running U.S. government-backed prospective cohort study of farm families in Iowa and North Carolina has not found any connections between glyphosate use and non-Hodgkin lymphoma, but the researchers reported that “among applicators in the highest exposure quartile, there was an increased risk of acute myeloid leukemia (AML) compared with never users…” The most recent published update to the study was made public in late 2017.

Recent studies report cancer links and concerns about validity of EPA classification: 

Cancer lawsuits

More than 42,000 people have filed suit against Monsanto Company (now Bayer) alleging that exposure to Roundup herbicide caused them or their loved ones to develop non-Hodgkin lymphoma (NHL), and that Monsanto covered up the risks. As part of the discovery process, Monsanto has had to turn over millions of pages of internal records. We are posting these Monsanto Papers as they become available. For news and tips about the ongoing legislation, see Carey Gillam’s Roundup Trial Tracker. The first three trials ended in large awards to plaintiffs for liability and damages, with juries ruling that Monsanto’s weed killer was a substantial contributing factor in causing them to develop NHL. Bayer is appealing the rulings. 

Monsanto influence in research: In March 2017, the federal court judge unsealed some internal Monsanto documents that raised new questions about Monsanto’s influence on the EPA process and about the research regulators rely on. The documents suggest that Monsanto’s long-standing claims about the safety of glyphosate and Roundup do not necessarily rely on sound science as the company asserts, but on efforts to manipulate the science

More information about scientific interference:

Endocrine disruption and other health concerns

Some research suggests that glyphosate may be an endocrine disruptor. It has also been linked to liver disease, birth defects and reproductive problems in laboratory animals; and may kill beneficial gut bacteria and damage the DNA in human embryonic, placental and umbilical cord cells. A 2019 study in a Nature journal reported increases in obesity, reproductive and kidney diseases, and other problems in the second- and third-generation offspring of rats exposed to glyphosate. See the study and Washington State University press release.

Recent studies have shown adverse biological effects from low-dose exposures to glyphosate at levels to which people are routinely exposed.

  • A 2017 study associated chronic, very low-level glyphosate exposures to non-alcoholic fatty liver disease in rats. According to the researchers, the results “imply that chronic consumption of extremely low levels of a GBH formulation (Roundup), at admissible glyphosate-equivalent concentrations, are associated with marked alterations of the liver proteome and metabolome,” the biomarkers for NAFLD.
  • A birth cohort study in Indiana published in 2017 – the first study of glyphosate exposure in US pregnant women using urine specimens as a direct measure of exposure – found detectable levels of glyphosate in more than 90% of the pregnant women tested and found the levels were significantly correlated with shortened pregnancy lengths.
  • A 2018 ecological and population study conducted in Argentina found high concentrations of glyphosate in the soil and dust in agricultural areas that also reported higher rates of spontaneous abortion and congenital abnormalities in children, suggesting a link between environmental exposure to glyphosate and reproductive problems. No other relevant sources of pollution were identified.
  • A 2018 rat study conducted by the Ramazzini Institute reported that low-dose exposures to Roundup at levels considered safe significantly altered the gut microbiota in some of the rat pups. Another 2018 study reported that higher levels of glyphosate administered to mice disrupted the gut microbiota and caused anxiety and depression-like behaviors.
  • A 2018 rat study by Argentinian researchers linked low-level perinatal glyphosate exposures to impaired female reproductive performance and congenital anomalies in the next generation of offspring.

Glyphosate has also been linked by recent studies to harmful impacts on bees and monarch butterflies.

Sri Lankan scientists awarded AAAS freedom award for kidney disease research

The AAAS has awarded two Sri Lankan scientists, Drs. Channa Jayasumana and Sarath Gunatilake, the 2019 Award for Scientific Freedom and Responsibility for their work to “investigate a possible connection between glyphosate and chronic kidney disease under challenging circumstances.” The scientists have reported that glyphosate plays a key role in transporting heavy metals to the kidneys of those drinking contaminated water, leading to high rates of chronic kidney disease in farming communities. See papers in  SpringerPlus (2015), BMC Nephrology (2015), Environmental Health (2015), International Journal of Environmental Research and Public Health (2014). The AAAS award had been under review since February amidst a fierce opposition campaign by pesticide industry allies to undermine the work of the scientists

Desiccation: another source of dietary exposures 

Some farmers use glyphosate on non-GMO crops such as wheat, barley, oats, and lentils to dry down the crop ahead of harvest in order to accelerate the harvest. This practice, known as desiccation, may be a significant source of dietary exposure to glyphosate.

Glyphosate in food: U.S. drags its feet on testing

The USDA quietly dropped a plan to start testing food for residues of glyphosate in 2017. Internal agency documents obtained by U.S. Right to Know show the agency had planned to start testing over 300 samples of corn syrup for glyphosate in April 2017. But the agency killed the project before it started. The U.S. Food and Drug Administration began a limited testing program in 2016, but the effort was fraught with controversy and internal difficulties and the program was suspended in September 2016. Both agencies have programs that annually test foods for pesticide residues but both have routinely skipped testing for glyphosate.

Before the suspension, one FDA chemist found alarming levels of glyphosate in many samples of U.S. honey, levels that were technically illegal because there have been no allowable levels established for honey by the EPA. Here is a recap of news about glyphosate found in food:

Pesticides in our food: Where’s the safety data?

USDA data from 2016 shows detectable pesticide levels in 85% of more than 10,000 foods sampled, everything from mushrooms to grapes to green beans. The government says there are little to no health risks, but some scientists say there is little to no data to back up that claim. See “Chemicals on our food: When “safe” may not really be safe: Scientific scrutiny of pesticide residue in food grows; regulatory protections questioned,” by Carey Gillam (11/2018).

Appeal in first Monsanto Roundup cancer trial to be heard in June

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A California appeals court has set a June hearing for cross appeals resulting from the first-ever trial over  allegations that Monsanto’s herbicides cause cancer.

The United States Court of Appeal First Appellate District said Thursday that it was setting a hearing for June 2 in the case of Dewayne “Lee” Johnson v. Monsanto. The hearing will take place nearly two years after the start of the Johnson trial and also two years after Bayer AG bought Monsanto.

A unanimous jury awarded Johnson $289 million in August 2018, including $250 million in punitive damages, finding that not only did Monsanto’s glyphosate-based herbicides cause Johnson to develop non-Hodgkin lymphoma, but that the company knew of the cancer risks and failed to warn Johnson.

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.

In preparing for oral arguments on the Johnson appeal, the appellate court said it was rejecting an application by the California Attorney General to file an amicus brief on Johnson’s side.

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.

Tens of thousands of plaintiffs have filed suit 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.

In setting Johnson’s appeal date, the appellate court said it “recognizes the time-sensitive nature of these consolidated cases and has continued to give them its highest priority despite current emergency conditions” created by the spread of coronavirus.

The appellate court movement on the Johnson case comes as Bayer is reportedly trying to renege on negotiated settlements with several U.S. law firms representing many of those plaintiffs.

Bayer said to be reneging on Roundup settlement deals as virus closes courthouses

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Bayer AG is reneging on negotiated settlements with several U.S. law firms representing thousands of plaintiffs who claim exposure to Monsanto’s Roundup herbicides caused them to develop non-Hodgkin lymphoma, sources involved in the litigation said on Friday.

The reversal comes as U.S. courts are closed to the public because of the spreading coronavirus, eliminating the specter of another Roundup cancer trial in the near future.

Bayer, which bought Monsanto in June of 2018, has been engaged in settlement talks for close to a year, seeking to put an end to mass litigation that has driven down the company’s stock, spurred investor unrest, and thrust questionable corporate conduct into a public spotlight.  The first three trials led to three losses for Bayer and jury awards of more than $2 billion, though trial judges later reduced the awards.

Bayer made a public statement this week saying that settlement talks have been slowed by the coronavirus pandemic, but multiple plaintiffs’ lawyers said that was not true.

According to the plaintiffs’ attorneys, Bayer has been going back to law firms that had already completed negotiations for specified settlements for their clients, saying the company will not honor the agreed-upon amounts.

“A lot of lawyers around the country thought they had tentative deals,” said Virginia attorney Mike Miller, whose firm represents roughly 6,000 clients and won two of the three Roundup trials to date. Bayer is now demanding a “hair cut” on those deals, Miller said.

Whether or not the various firms will take the reduced offers remains to be seen.  “These are uncertain economic times,” Miller said. “People have to consider what’s best for their clients.”

In response to a request for comment, a Bayer spokesman provided the following statement: “We’ve made progress in the Roundup mediation discussions, but the COVID-19 dynamics, including restrictions imposed in recent weeks, have caused meeting cancellations and delayed this process…  As a result, the mediation process has significantly slowed, and realistically, we expect this will continue to be the case for the immediate future. During this time, we will continue to do whatever we can to help combat the global COVID-19 pandemic, consistent with our vision of ‘health for all, hunger for none.’ We cannot speculate about potential outcomes from the negotiations or timing, given the uncertainties surrounding the pandemic and the confidentiality of this process, but we remain committed to engaging in mediation in good faith.”

US Right to Know reported in early January that the parties were working on a settlement of roughly $8 billion to $10 billion. Bayer has acknowledged facing claims from more than 40,000 plaintiffs, but plaintiffs’ attorneys have said the total number of claims is much higher.

Among the firms who had negotiated settlements for their clients are the Andrus Wagstaff firm from Denver, Colorado and the Los Angeles firm of Baum Hedlund Aristei & Goldman. Both reached agreements last year with Bayer.

In addition, the Weitz & Luxenberg firm from New York and Mike Miller’s firm recently reached what they thought were agreements on terms. Each of the firms represents thousands of plaintiffs.

The primary leverage plaintiffs’ attorneys had been using in the settlement negotiations was the threat of another public trial. In the first three trials, damning internal Monsanto documents laid bare evidence that the company knew of the cancer risks of its glyphosate-based herbicides but failed to warn consumers; ghost-wrote scientific papers proclaiming the safety of its herbicides; worked with certain regulatory officials to quash a government review of glyphosate toxicity; and engineered efforts to discredit critics.

The revelations have triggered outrage around the world and prompted moves to ban the glyphosate-based herbicides.

Several trials that were to have been held over the last several months were cancelled shortly before they were scheduled to begin when Bayer agreed to individual settlements for those specific trial plaintiffs. Two of those cases involved children stricken with non-Hodgkin lymphoma and a third was brought by a woman suffering from non-Hodgkin lymphoma. Those plaintiffs, and others who have agreed to settlements in lieu of trials in recent months, are protected and are not part of the current rollback effort by Bayer, according to multiple sources involved.

Bayer is slated to hold its annual shareholders’ meeting on April 28. For the first time in the company’s history, the meeting will be held entirely online.

The first three plaintiffs to win jury awards against Monsanto have yet to receive any money as Bayer appeals the verdicts.

New legal filings over alleged Roundup dangers amid court coronavirus delays

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Even as the spread of the coronavirus closes courthouse doors to the public and lawyers, legal maneuvering continues over claims of danger associated with Monsanto’s glyphosate-based herbicides.

Two nonprofit advocacy groups, the Center for Food Safety (CFS) and the Center for Biological Diversity (CBD), filed an amicus brief on behalf of cancer patient Edwin Hardeman on March 23. Hardeman won a jury verdict against Monsanto of $80 million in March of 2019, becoming the second winning plaintiff in the Roundup litigation.  The trial judge reduced the jury award to a total of $25 million. Monsanto appealed the award nonetheless, asking an appellate court to overturn the verdict.

The new legal brief supporting Hardeman counters one filed by the Environmental Protection Agency (EPA) that backs Monsanto in the Hardeman appeal.

The CFS and CBD brief states that Monsanto and the EPA are both wrong to assert that the EPA’s approval of glyphosate herbicides preempts challenges to the safety of the products:

        “Contrary to Monsanto’s claims, Mr. Hardeman’s case is not preempted by EPA’s conclusion relative to glyphosate because Roundup is a glyphosate formulation that EPA has never evaluated for carcinogenicity. Moreover, significant flaws and biases undermined EPA’s evaluation of glyphosate’s carcinogenicity and the district court was correct in allowing testimony to that effect,” the brief states.

         “Monsanto wants this Court to believe that “glyphosate” is synonymous with ‘Roundup.’ The reason is simple: if the terms are interchangeable, then, they argue, EPA’s finding that glyphosate is “not likely to be carcinogenic” would apply to Roundup and might preempt Mr. Hardeman’s case. However as the evidence presented at trial demonstrated, “glyphosate” and “Roundup” are very much not synonymous, and Roundup is far more toxic than glyphosate.  Moreover, EPA has never evaluated Roundup for carcinogenicity. Glyphosate formulations, like Roundup, contain additional ingredients (co-formulants) to improve performance in some way. EPA understands these formulations are more toxic than glyphosate alone, yet nevertheless focused its cancer evaluation on pure glyphosate…”

Separate lawsuit names EPA 

In a separate legal action, last week the Center for Food Safety filed a federal lawsuit against the EPA over its continued support of glyphosate. The claim, made on behalf of a  coalition of farm workers, farmers, and conservationists, alleges the EPA is violating the Federal Insecticide, Fungicide, and Rodenticide Act as well as the Endangered Species Act by continuing to allow widespread use of glyphosate herbicides.

“While EPA defends glyphosate, juries in several cases have found it to cause cancer, ruling in favor of those impacted by exposure,” CFS said in a press release. “Glyphosate formulations like Roundup are also well-established as having numerous damaging environmental impacts. After a registration review process spanning over a decade, EPA allowed the continued marketing of the pesticide despite the agency’s failure to fully assess glyphosate’s hormone-disrupting potential or its effects on threatened and endangered species.”

Bill Freese, science policy analyst at CFS said: “Far from consulting the ‘best available science,’ as EPA claims, the agency has relied almost entirely on Monsanto studies, cherry-picking the data that suits its purpose and dismissing the rest.”

Virus-related court disruptions

Monsanto and its German owner Bayer AG have been working to try to settle a large number of the tens of thousands of Roundup cancer claims brought in U.S. courts. That effort continues, and specific settlements have already been reached for some individual plaintiffs, according to sources involved in the talks. US Right to Know reported in early January that the parties were working on a settlement of roughly $8 billion to $10 billion.

However, many other cases continue to work their way through the court system, including the appeal of Dewayne “Lee” Johnson, the first plaintiff to win against Monsanto in the Roundup litigation. Johnson’s attorneys had hoped the California Court of Appeal would hold oral arguments in Monsanto’s appeal of Johnson’s win sometime in April. But that now appears extremely unlikely as other cases scheduled for March have now been pushed into April.

As well, all in-person sessions for oral arguments in the appeals court are currently suspended. Counsel who choose to present oral argument must do so over the telephone, the court states.

Meanwhile, courts in multiple California counties are closed and jury trials have been suspended to try to protect people from the spread of the virus. The federal court in San Francisco, where the multidistrict Roundup litigation is centralized, is closed to the public, including a suspension of trials, until May 1. Judges can still issue rulings, however, and hold hearings by teleconference.

In Missouri, where most of the state court Roundup cases are based, all in-person court proceedings (with a few exceptions) are suspended through April 17, according to a Missouri Supreme Court order. 

One Missouri case that had been set to go to trial in March 30 in St. Louis City Court now has a trial date set for April 27.  The case is Seitz v Monsanto #1722-CC11325.

In ordering the change, Judge Michael Mullen wrote: “DUE TO THE NATIONAL PANDEMIC OF THE COVID-19 VIRUS AND THE UNAVAILABILITY OF JURORS IN THIS CIRCUIT THE COURT HEREBY REMOVES THIS CASE FROM THE MARCH 30, 2020 TRIAL DOCKET. CAUSE IS RESET FOR A TRIAL SETTING CONFERENCE ON MONDAY, APRIL 27, 2020 @ 9:00 AM.”

St. Louis Roundup cancer trial “will not resume;” settlement news expected

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A Roundup cancer trial in St. Louis, Missouri, will not open on Wednesday as expected, a court spokesman said Monday, fueling fresh speculation that a global settlement of tens of thousands of lawsuits brought by cancer victims against the former Monsanto Co. may be near.

St. Louis City Circuit Court Judge Elizabeth Hogan issued the notification Monday afternoon, reversing guidance provided to jurors and media last week that they should plan for opening statements in the case to begin Wednesday.  Broadcasters waiting to air the proceedings of the highly anticipated trial were told to pack up their equipment.

The St. Louis case, titled Wade v. Monsanto, involves four plaintiffs, including one woman whose husband died of non-Hodgkin lymphoma. Opening statements were initially expected Jan. 24, but were postponed  to allow for lawyers for Monsanto’s German owner Bayer AG and lawyers for the plaintiffs to discuss settlement terms.  The court then said the trial would open on Feb. 5.  Now, it is off indefinitely.

The plaintiffs in the Wade case allege that they or their loved ones developed non-Hodgkin lymphoma because of exposure to Monsanto’s glyphosate-based herbicides, including the popular Roundup brand. More than 50,000 people are making similar allegations against the company, and are additionally claiming that Monsanto knew about the risks but failed to warn its customers.

Several trials have been pulled off the docket over the last several weeks as Bayer, which bought Monsanto in 2018, has drawn closer to a global settlement of the litigation. Bayer is looking to pay out roughly $10 billion in total to settle most, if not all, of the claims, according to sources close to the negotiations.

Last week, a California Roundup trial titled Caballero v. Monsanto was officially postponed after more than a week of jury selection activities and the seating of 16 jurors. Sources close to the litigation said settlement terms have now been agreed to in Caballero.

Sources also said the plaintiffs in a Roundup trial scheduled to start February 24th in federal court in San Francisco – Stevick v. Monsanto – are being told their case is unlikely to go forward.

Bayer investors are eager for the company to put an end to the litigation and head off more trials and the publicity that each brings.  Bayer’s lawyers have reportedly negotiated settlement payout for the clients of several large plaintiffs’ firms, but had been unable to reach agreement with two – The Miller Firm of Virginia and Weitz & Luxenberg of New York.

The Miller firm represents the plaintiffs in the Caballero, Wade and Stevick cases. The fact that those cases are now also being postponed or called off indicates Bayer and the Miller firm likely have come to an agreement, or are near one, observers said.

The first three trials went badly for Monsanto and Bayer as outraged juries awarded over $2.3 billion in damages to four plaintiffs. Trial judges lowered the jury awards to a total of roughly $190 million, and all are under appeal.

Reuters reported that Bayer is considering a settlement provision that would bar plaintiffs’ lawyers involved in the litigation from advertising for new clients.

Mediator Ken Feinberg declined to comment. Feinberg was appointed last May by U.S. District Judge Vince Chhabria to facilitate the settlement process. Last month, Feinberg said he was “cautiously optimistic” that a “national all-in” settlement of the U.S. lawsuits was near.

St. Louis Roundup trial postponed as large settlement appears near

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Update – Statement from Bayer: “The parties have reached an agreement to continue the Wade case in Missouri Circuit Court for St. Louis. The continuance is intended to provide room for the parties to continue the mediation process in good faith under the auspices of Ken Feinberg, and avoid the distractions that can arise from trials.  While Bayer is constructively engaged in the mediation process, there is no comprehensive agreement at this time. There also is no certainty or timetable for a comprehensive resolution.”

The highly anticipated opening of  what would have been a fourth Roundup cancer trial was postponed indefinitely on Friday amid settlement negotiations between Monsanto owner Bayer AG and attorneys representing thousands of people who claim their cancers were caused by exposure to Monsanto’s glyphosate-based herbicides.

St. Louis City Circuit Court Judge Elizabeth Hogan issued an order stating only “cause continued.” The order came after lead lawyers from the plaintiffs’ firms of New York-based Weitz & Luxenberg and The Miller Firm of Virginia left Hogan’s courtroom unexpectedly shortly before opening statements were due to begin at mid-morning Friday. Sources close to the legal teams initially said opening statements were pushed back until early afternoon to allow for time to see if the plaintiffs’ attorneys and lawyers for Bayer could finalize a resolution that would settle tens of thousands of lawsuits. But by early afternoon the proceedings were called off and it was widely speculated that a deal had been achieved.

Numbers of $8 billion-$10 billion have been floated for weeks by litigation sources as a potential settlement total for the mass of cases that has dogged Bayer ever since it bought Monsanto in June of 2018 for $63 billion. The company’s share prices has been sharply depressed by repeated trial losses and large jury awards against the company in the three trials held to date.

Many more trials were to be held over the next few weeks and months, pressuring Bayer to settle the cases in time to assuage investors at its annual shareholders’ meeting in April.

Bayer officials have confirmed that more than 42,000 plaintiffs have filed lawsuits against Monsanto. But litigation sources say there are now more than 100,000 plaintiffs lined up with claims, though the current total number of actual filed claims is unclear.

The Weitz firm and the Miller firm combined represent the claims of roughly 20,000 plaintiffs, according to sources close to the firms. Mike Miller, who heads the Miller firm, is the lead attorney in the St. Louis trial that had been set to open Friday.

Miller has been a high-profile hold-out in the settlement talks with Bayer as several other lead plaintiffs’ attorneys have already signed on to a deal with the German pharmaceutical giant. Bayer needs to be able to achieve a resolution with a majority of the outstanding claims in order to appease disgruntled investors.

Mediator Ken Feinberg said last week that it was unclear if there could be a global settlement achieved without Miller. Miller was seeking “what he thinks is appropriate compensation,” Feinberg said. U.S. District Judge Vince Chhabria appointed Feinberg to act as a mediator between Bayer and the plaintiffs’ attorneys last May.

The jury for the St. Louis trial had already been selected and the four plaintiffs and their family members were present Friday morning, lining the front row of the small courtroom.

Monsanto’s lawyers made a bid earlier Friday to block broadcasting of the trial by local television and radio stations but Judge Hogan ruled against the company. Friday’s trial would have been the first to take place in the St. Louis area, where Monsanto was headquartered for more than 100 years.

The first three trials went badly for Monsanto and its German owner Bayer AG as outraged juries awarded over $2.3 billion in damages to four plaintiffs. Trial judges lowered the jury awards to a total of roughly $190 million, and all are under appeal.

The trials have turned a public spotlight on internal Monsanto record  that showed how Monsanto engineered scientific papers proclaiming the safety of its herbicides that falsely appeared to be created solely by independent scientists; used third parties to try to discredit scientists reporting harm with glyphosate herbicides; and collaborated with Environmental Protection Agency officials to protect Monsanto’s position that its products were not cancer-causing.

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

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Monsanto’s German owner Bayer AG has failed in efforts to head off a Missouri trial over claims brought by cancer patients that Monsanto’s herbicide caused their diseases and Monsanto hid the risks.

In a ruling handed down Wednesday, St. Louis City Judge Elizabeth Byrne Hogan of Missouri’s 22nd Circuit ruled that the company wasn’t entitled to summary judgment in the case of Wade v. Monsanto, which is scheduled to go to trial Tuesday.

Hogan further frustrated Monsanto by ordering Thursday that the trial could be audio and video recorded and broadcast to the public. Lawyers for Monsanto had argued that the trial should not be broadcast because the publicity could endanger witnesses and former Monsanto executives.

Judge Hogan ruled that the trial would be open to audio and video recording and broadcast from its beginning on Jan 21 through the end of the trial, with several exceptions, including no coverage of jury selection.

The trial will be the first to take place in St. Louis, the former hometown for Monsanto before the company was acquired by Bayer in June 2018.

Monsanto lost the first three trials that have so far taken place. In those three trials, a total of four plaintiffs claimed exposure to the company’s glyphosate-based herbicides caused them each to develop types of non-Hodgkin lymphoma and that Monsanto covered up evidence of the risks.

Representatives for both sides have been working with a court-appointed mediator since last May to try to resolve the litigation. As settlement talks have progressed, Bayer has successfully negotiated arrangements with certain plaintiffs’ law firms to postpone and/or cancel several trials, including one that had been set to get underway in the St. Louis area the last week of January. Among the cases pulled from the trial schedule are two cases involving cancer-stricken children and a case involving a woman who has suffered extensive debilitation from her bout with non-Hodgkin lymphoma.

But while other firms pull back from trial plans, the Virginia-based Miller Firm, which is the lead counsel for the group of plaintiffs in the Wade case, has pushed forward. The Miller Firm already has two trial victories under its belt, having represented the first trial plaintiff, Dewayne “Lee” Johnson, and the most recent trial plaintiffs, Alva and Alberta Pilliod. The other trial that has thus far taken place, on claims brought by Edwin Hardeman, was handled by two separate firms.

In addition to the Wade case, the Miller firm has another trial due to start in California that will overlap with the Wade case if both proceed as planned.

Several of the lead law firms involved in the litigation stopped accepting new clients months ago, but other attorneys around the United States have continued to advertise, drawing in more potential plaintiffs. Some sources say the list of plaintiffs now totals more than 100,000 people. Last year Bayer reported to investors that the list of plaintiffs in the Roundup litigation totaled more than 42,000.

In ruling against Monsanto’s bid for summary judgment, Judge Hogan shot down an assortment of arguments asserted by the company’s lawyers, including Monsanto’s repeated effort to claim that because the Environmental Protection Agency (EPA) concludes glyphosate is not carcinogenic, a federal legal  preemption exists.

“Defendant has not cited a single case that holds that the EPA’s regulatory scheme preempts claims such as Plaintiffs’,” Judge Hogan said in her ruling. “Every court presented with this issue has rejected it.”

With respect to the company’s argument that a jury should not be entitled to consider punitive damages, the judge said that would be a matter for consideration after seeing evidence presented at trial. She wrote: “Defendant argues that because Roundup has been consistently approved by the EPA and other regulatory agencies, its conduct cannot be considered willful, wanton or reckless as a matter of law. Plaintiffs respond that they will present evidence of Monsanto’s reckless disregard for the safety of others, and despicable and vile conduct, which has been held sufficient to submit the claim of punitive damages to the jury in other cases that have been tried. Defendant is not entitled to summary judgment on punitive damages.”

Anticipation Builds For Settlement of Roundup Cancer Claims

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Anticipation is building around the belief that there could soon be an announcement of at least a partial settlement of U.S. lawsuits pitting thousands of U.S. cancer patients against Monsanto Co. over allegations the company hid the health risks of its Roundup herbicides.

Investors in Bayer AG, the German company that bought Monsanto in 2018,  are keeping a close eye on the status of three trials currently still on the docket to get underway this month. Six trials were initially set to take place in January, but three have recently been “postponed.” Sources say the postponements are part of the process of obtaining an overall settlement with several plaintiffs’ attorneys who have large numbers of cases pending.

The three trials still on the docket for this month are as follows: Caballero v. Monsanto, set to start Jan. 17 in Contra Costa Superior Court in California; Wade v. Monsanto, set to start Jan. 21 in St. Louis City Circuit Court in Missouri; and Cotton v. Monsanto, scheduled for Jan. 24 in Riverside Superior Court in California.

A hearing scheduled for today in the Caballero case was called off, but another hearing is set for Thursday before the trial gets underway Friday, according to court filings. Possibly underscoring the fluidity of the situation, at least one of the key witnesses expected to testify in the case has been told he will not likely be needed, according to a source close to the litigation.

In St. Louis, Monsanto’s former hometown, the court calendar calls for the Wade trial to get underway in front of Judge Elizabeth Byrne Hogan a week from today, said court spokesman Thom Gross.

Plaintiffs’ attorney Mike Miller, who represents plaintiff Kathleen Caballero as well as multiple plaintiffs in the Wade trial, said he was looking forward to the trials for these “victims of Monsanto’s deceit.” Miller said rumors that his trials would be postponed are false and he fully intends for the trials to go forward.

Miller and other attorneys involved in the litigation have declined to answer questions about a potential settlement.

But analysts who follow Bayer say that settlement discussions are looking at a potential deal for $8 billion to settle current cases with $2 billion set aside for future needs.

After losing three out of three trials and facing thousands of claims by cancer victims who allege their diseases were caused by exposure to Monsanto’s glyphosate-based herbicides, Monsanto’s German owner Bayer AG has been working for months to avoid any additional trials. Bayer was successful in delaying several trials slated for late 2019 and the three that were planned for January before being postponed. Two of those cases involved children stricken with non-Hodgkin lymphoma and the third was brought by a woman suffering from non-Hodgkin lymphoma.

There are many complicating factors hindering resolution of the litigation, including the fact that plaintiffs’ attorneys with no connection to the plaintiffs’ leadership team continue to advertise for new clients to add to the pool, thus potentially thinning the payouts for plaintiffs who have been awaiting their day in court for years.

In working toward a settlement Bayer is hoping to appease investors unhappy with the mass tort liability Bayer took on in acquiring Monsanto, and hopes to avoid more publicity surrounding damning evidence that was introduced during the previous trials indicating that Monsanto knew of the cancer risks of its weed killing products but failed to warn consumers. The revelations have triggered outrage around the world and prompted moves to ban the glyphosate-based herbicides.

Earlier this month the town of Dennis, Massachusetts announced it will no longer allow use of the herbicide glyphosate on town-owned property. It is one of a number of communities in the Cape Cod area that have recently said they will restrict or ban glyphosate herbicides use. Numerous other cities and school districts around the United States have said they are looking at, or have already decided to,  ban or restrict the use of glyphosate-based herbicides.

Internationally, Vietnam and Austria have said they will ban glyphosate while Germany has said it will ban the chemical by 2023. French leaders also have said they are banning glyphosate-based herbicides.

The Environmental Protection Agency (EPA) has sided with Monsanto and Bayer in saying there is no evidence to support claims that glyphosate-based herbicides can cause cancer.