Former Monsanto CEO Ordered to Testify at Roundup Cancer Trial

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Former Monsanto Chairman and CEO Hugh Grant will have to testify in person at a St. Louis-area trial set for January in litigation brought by a cancer-stricken woman who claims her disease was caused by exposure to the company’s Roundup herbicide and that Monsanto covered up the risks instead of warning consumers.

Grant, who led St. Louis-based Monsanto from 2003 until the company was sold to Bayer AG of Germany in June of 2018, and spent a total of 37 years working for Monsanto, was subpoenaed by lawyers for plaintiff Sharlean Gordon, to testify at a trial slated to begin Jan. 27 in St. Louis County Circuit Court.

The Gordon trial was originally scheduled for August of this year but was delayed as part of an effort to undertake settlement talks between Bayer and lawyers for tens of thousands of plaintiffs who are suing Monsanto with claims similar to Gordon’s.

Two other trials set for January, both in courts in California and both involving children diagnosed with cancer, were recently postponed due to continued settlement talks.

Bayer estimates that there are currently more than 42,000 plaintiffs alleging that exposure to Monsanto’s Roundup and other glyphosate-based herbicides made by Monsanto caused them or their loved ones to develop non-Hodgkin lymphoma.

Grant did not have to testify live at the three Roundup cancer trials that have taken place so far because they were all held in California. But because Grant resides in St. Louis County, plaintiffs’ attorneys saw an opportunity to get him on the stand in person.

Attorneys for Grant have been fighting the subpoena, arguing that he is not a scientist or regulatory expert and he has already provided information in deposition testimony. Grant has also argued that he should not have to testify because he plans to be out of the country starting February 9.

But in a decision handed down Dec. 5, a special master appointed to the case sided with Gordon’s attorneys and ruled that Grant was not entitled to an order quashing the subpoena for trial testimony.

“Mr. Grant appeared for interviews on public radio representing that Roundup is not a carcinogen; in earnings calls for investors Mr. Grant personally responded that the classification of glyphosate as a probable carcinogen was ‘junk science;’ in 2016 Mr. Grant personally lobbied the EPA Administrator and the Agricultural Committee Chair of the topic of glyphosate,” the special master’s order states.

“Although Mr. Grant does not have scientific knowledge that doubtless will be a significant component to this lawsuit, he was CEO of Monsanto for 15 years and took part in presentations, discussions, interviews and other appearances for Monsanto as CEO in which the topics of Roundup and glyphosate were explained, discussed and defended,” Special Master Thomas Prebil said in his decision.

Gordon developed non-Hodgkin lymphoma after using Roundup herbicides for 25 years at her residence in South Pekin, Illinois, and has suffered extensive debilitation due to her disease. Gordon’s stepfather, who also used Roundup at the family home where Gordon lived into adulthood, died of cancer.  The case  is actually derived from a larger case filed in July 2017 on behalf of more than 75 plaintiffs. Gordon is the first of that group to go to trial.

In the three previous trials, unanimous juries have found that exposure to Monsanto’s herbicides does cause non-Hodgkin lymphoma and that the company did cover up the risks and fail to warn consumers. The three juries awarded a total of four plaintiffs more than $2 billion in damages, but the three trial judges have reduced the awards significantly in each case.

All are being appealed and none of the winning plaintiffs have yet received any of the monetary awards the juries ordered.

JOHNSON APPEAL DELAYED

The first plaintiff to win against Monsanto is a California school groundskeeper from California. Dewayne “Lee” Johnson was awarded $289 million by a jury in August 2018. The trial judge later lowered the damages to $78 million. Monsanto appealed seeking to overturn the jury decision and Johnson cross-appealed seeking to reinstate the full award of $289 million.

The California Court of Appeal 1st Appellate District said it would act swiftly in ruling on the consolidated appeals and lawyers for both sides initially hoped to have a ruling by the end of this year. But the case has been delayed for several weeks as both sides awaited a date for oral arguments. On Dec. 3, Monsanto’s attorneys asked the court not to schedule oral arguments in January or February, as several new Roundup trials are set for those months.  Johnson’s attorneys opposed that request for further delay.

On Friday, the court issued an order stating that while it agreed with Johnson about the need to
“schedule oral argument as soon as practicable,” it was unlikely oral arguments could be held until March of April “given the number and length of all the briefs to be considered, the outstanding motions that the court must rule on when considering the merits of the appeal,” and other factors.

Six Monsanto Roundup Cancer Trials Set for January

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After several months out of the headlines, lawyers for both sides of the nationwide Roundup cancer litigation are gearing up for overlapping trials in the new year as several more cancer patients seek to blame Monsanto for their diseases.

Six trials are currently set to take place starting in January, with one in February, two in March and additional trials scheduled almost every month from April through October 2021. Thousands of additional plaintiffs still are working to get trial dates set for their claims.

The plaintiffs in the upcoming January trials include two children who were stricken by non-Hodgkin lymphoma allegedly after being repeatedly exposed to Monsanto herbicides at very young ages. Also set for January is the trial for a woman named Sharlean Gordon who has suffered several debilitating recurrences of her cancer. Another trial will present the claims of five plaintiffs who claim Monsanto’s herbicides caused their cancers.

Notably, two of the trials in January will take place in the St. Louis, Missouri area – where Monsanto was headquartered for decades before its acquisition in June 2018 by Germany’s Bayer AG. Those two trials will be the first to go before jurors in Monsanto’s home town. Gordon’s case was supposed to go to trial in the area last August but was postponed, as were others set for the second half of 2019, as Bayer and plaintiffs’ attorneys initiated settlement talks.

It is still possible that some sort of settlement – individual case-specific, or larger – could happen before January, but the lawyers on both sides are preparing for a schedule that presents numerous logistical challenges. Each trial is expected to last several weeks, and not only are some lawyers involved in trying cases with overlapping trial schedules, but a small group of expert witnesses will be testifying in multiple cases taking place at the same time.

Three trials have taken place so far  in the sprawling mass tort litigation, which began in 2015 after the International Agency for Research on Cancer (IARC) classified a chemical called glyphosate as a probable human carcinogen with a particular association to non-Hodgkin lymphoma. Since the 1970s, glyphosate has been the active ingredient in Monsanto branded herbicides, and is currently considered the most widely used herbicide in the world.

Plaintiffs’ attorneys say that the current line-up of cases represent even stronger claims for damages than the prior three trials.  “These are very strong cases,” said lawyer Aimee Wagstaff, who represents Gordon. In March, Wagstaff client Edwin Hardeman won an $80 million jury verdict from a San Francisco jury in his lawsuit against Monsanto.

For the Gordon case, Wagstaff has subpoenaed former Monsanto chairman Hugh Grant to testify live at the trial. Grant has thus far only testified through deposition and not had to testify in front of a jury; nor have other high-level Monsanto executives because the trials were held in California. But with the trial in St. Louis, plaintiffs’ lawyers are hoping to get some Monsanto scientists and executives on the stand for questioning. Grant’s attorneys have objected the making him appear in person, and both sides are awaiting a ruling on that matter.

In the most recent trial to take place, a jury in Oakland, California ordered Monsanto to pay more than $2 billion in damages to Alberta and Alva Pilliod, a married couple who both suffer from NHL they blame on exposure to Roundup.  The first trial ended in August 2018 when jurors in state court in San Francisco ordered Monsanto to pay $289 million  in damages to school groundskeeper Dewayne “Lee” Johnson, who has been diagnosed with a terminal type of non-Hodgkin lymphoma.  The judges in all three of those cases ruled that the awards were excessive and reduced the damage amounts, though the verdicts are currently under appeal.

More than 42,000 people  in the United States are now suing Monsanto claiming that Roundup and other Monsanto’s herbicides cause non-Hodgkin lymphoma. The lawsuits allege that the company was well aware of the dangers for many years but did nothing to warn consumers, working instead to manipulate the scientific record to protect company sales.

Cancer Taking Toll As New Roundup Trials Near

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For the last five years, Chris Stevick has helped his wife Elaine in her battle against a vicious type of cancer that the couple believes was caused by Elaine’s repeated use of Monsanto’s Roundup herbicide around a California property the couple owned. Now the roles are reversed as Elaine must help Chris face his own cancer.

Chris Stevick, who often mixed Roundup for his wife and tested the sprayer used to dispense the weed killer, was diagnosed last month with chronic lymphocytic leukemia (CLL), a type of non-Hodgkin lymphoma. Unlike Elaine’s aggressive type of NHL known as central nervous system lymphoma, Chris’s cancer is a type that tends to grow slowly. He was diagnosed after a physical examination showed abnormalities in his blood and prompted further tests.

The diagnosis has prompted a scramble among lawyers involved in the sprawling Roundup products liability litigation given that the Stevick’s lawsuit against Monsanto is set as the next federal case to go to trial.

With the trial date of Feb. 24, 2020 looming, Elaine Stevick’s lawyers asked Monsanto’s attorneys if the company would agree that Chris Stevick’s cancer claims could be joined with his wife’s for the February trial in San Francisco. The attorneys argue that at the very least Chris Stevick’s diagnosis is admissible evidence at his wife’s trial as additional proof of their claim that Roundup exposure can cause non-Hodgkin lymphoma.

Monsanto’s attorneys oppose the joining of the claims and say that Elaine Stevick’s trial should only proceed in February if there is no mention made of her husband’s cancer. Alternatively, Monsanto requests that the February trial be delayed and the company be given time to do discovery into Chris Stevick’s diagnosis.

The issue is to be discussed in a case management conference Thursday, which the Stevicks plan to attend. U.S. District Judge Vince Chhabria said ahead of the hearing that he is “tentatively of the view” that a continuance of the trial will be necessary if the couple wants to try their claims together. He also said that if Elaine Stevick proceeds on her exposure claims alone, evidence of her husband’s cancer diagnosis “will likely be inadmissible….”

If the judge confirms that joining the claims would indeed require a continuance, Elaine Stevick will choose to proceed on her own in February, said attorney Mike Miller.

Earlier this year another husband and wife suffering from cancer, Alva and Alberta Pilliod, were awarded more than $2 billion in damages in their lawsuit against Monsanto, though the judge in the case lowered the damage award to $87 million. The Pilliod trial was the third Roundup products liability trial to take place and the third in which juries found that Monsanto’s Roundup herbicides cause non-Hodgkin lymphoma and that the company has hidden the risks from consumers. Alberta Pilliod’s cancer has recently returned and it is not clear she will survive much longer, according to her attorneys.

None of the people so far awarded money in the three trials have received any payout from Monsanto as its owner Bayer AG appeals the verdicts.

There are currently more than 42,000 people suing Monsanto in the United States, alleging that Monsanto’s herbicides cause non-Hodgkin lymphoma. The lawsuits additionally allege that the company was well aware of the dangers but did nothing to warn consumers, working instead to manipulate the scientific record.

The Stevick trial is only one of at least six in five different venues slated for January and February, with each expected to last several weeks. Many lawyers are involved in more than one of the cases, and all have overlapping expert witnesses, setting up organizational and resource challenges for both sides. Multiple trials that had been set for this fall were delayed until next year.

In the meantime, both sides of the litigation are keeping an eye on the California Appellate Court, where lawyers for plaintiff Dewayne “Lee” Johnson and lawyers for Monsanto are awaiting a date for oral arguments in their cross appeals. Monsanto is seeking to overturn the unanimous jury decision handed down against the company in August 2018. The trial judge in that case lowered the jury award from $289 million to $78 million and Johnson is appealing for the reinstatement of the full $289 million.

Johnson was the first to go to trial against Monsanto and his victory sent share prices in Bayer plummeting just two months after Bayer closed the purchase of Monsanto in June 2018. Johnson was  granted “trial preference” due to predictions by his doctors that he did not have long to live. Johnson has outlived those predictions, though his health continues to decline.

As the litigation drags on, several plaintiffs have died or are nearing death, or have suffered such extreme health problems that their ability to undergo the rigors of depositions and trials has become limited.

In some cases, family members are being substituted as plaintiffs for deceased loved ones. In legal parlance, the notices to the courts are titled “Suggestion of Death.”

An Unappetizing Analysis from the FDA

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Last month the Food & Drug Administration published its latest annual analysis of the levels of pesticide residues that contaminate the fruits and veggies and other foods we Americans routinely put on our dinner plates. The fresh data adds to growing consumer concern and scientific debate over how pesticide residues in food may contribute – or not – to illness, disease and reproductive problems.

Over 55 pages of data, charts and graphs, the FDA’s “Pesticide Residue Monitoring Program” report also provides a rather unappetizing example of the degree to which U.S. farmers have come to rely on synthetic insecticides, fungicides and herbicides in growing our food.

We learn, for instance, in reading the latest report, that traces of pesticides were found in 84 percent of domestic samples of fruits, and 53 percent of vegetables, as well as 42 percent of grains and 73 percent of food samples simply listed as “other.” The samples were drawn from around the country, including from California, Texas, Kansas, New York and Wisconsin.

Roughly 94 percent of grapes, grape juice and raisins tested positive for pesticide residues as did 99 percent of strawberries, 88 percent of apples and apple juice, and 33 percent of rice products, according to the FDA data.

Imported fruits and vegetables actually showed a lower prevalence of pesticides, with 52 percent of fruits and 46 percent of vegetables from abroad testing positive for pesticides. Those samples came from more than 40 countries, including Mexico, China, India and Canada.

We also learn that for the most recently reported sampling, among the hundreds of different pesticides, the FDA found traces of the long-banned insecticide DDT in food samples, as well as chlorpyrifos, 2,4-D and glyphosate.  DDT is linked to breast cancer, infertility and miscarriage, while chlorpyrifos – another insecticide – has been scientifically shown to cause neurodevelopmental problems in young children.

Chlorpyrifos is so dangerous that the European Food Safety Authority has recommended a ban of the chemical in Europe, finding that there is no safe exposure level. The herbicides 2,4-D and glyphosate are both linked to cancers and other health problems as well.

Thailand recently said it was banning glyphosate and chlorpyrifos due to the scientifically established risks of these pesticides.

Despite the prevalence of pesticides found in U.S. foods, the FDA, along with the Environmental Protection Agency (EPA) and the U.S. Department of Agriculture (USDA), assert that pesticide residues in food are really nothing to worry about. Amid heavy lobbying by the agrichemical industry the EPA has actually supported continued use of glyphosate and chlorpyrifos in food production.

The regulators echo the words of Monsanto executives and others in the chemical industry by insisting that pesticide residues pose no threat to human health as long as the levels of each type of residue falls under a “tolerance” level set by the EPA.

In the most recent FDA analysis, only 3.8 percent of domestic foods had residue levels that were considered illegally high, or “violative.” For imported foods, 10.4 percent of the foods sampled were violative, according to the FDA.

What the FDA did not say, and what regulatory agencies routinely avoid saying publicly, is that the tolerance levels for certain pesticides have risen over the years as the companies that sell the pesticides request higher and higher legal limits. The EPA has approved several increases allowed for glyphosate residues in food, for instance. As well, the agency often makes the determination that it need not comply with a legal requirement that states the EPA  “shall apply an additional tenfold margin of safety for infants and children” in setting the legal levels for pesticide residues. The  EPA has overridden that requirement in the setting of many pesticide tolerances, saying no such extra margin of safety is needed to protect children.

The bottom line: The higher the EPA sets the “tolerance” allowed as the legal limit, the lower the possibility that regulators will have to report “violative” residues in our food.  As a result, the U.S. routinely allows higher levels of pesticide residues in food than other developed nations. For example, the legal limit for the weed killer glyphosate on an apple is 0.2 parts per million (ppm) in the United States but only half that level – 0.1 ppm – is allowed on an apple in the European Union. As well, the U.S. allows residues of glyphosate on corn at 5 ppm, while the EU allows only 1 ppm.

As legal limits rise for pesticide residues in food, many scientists have been increasingly raising alarms about the risks of regular consumption of the residues, and the lack of regulatory consideration of the potential cumulative impacts of consuming an array of bug and weed killers with every meal.

A team of Harvard scientists are calling for in-depth research about potential links between disease and consumption of pesticide as they estimate that more  than 90 percent of people in the United States have  pesticide residues in their urine and blood due to consumption of pesticide-laced foods.  A study connected to Harvard found that dietary pesticide exposure within a “typical” range was associated both with problems women had getting pregnant and delivering live babies.

Additional studies have found other health problems tied to dietary exposures to pesticides, including to glyphosate.  Glyphosate is the most widely used herbicide in the world and is the active ingredient in Monsanto’s branded Roundup and other weed killing products.

Pesticide Industry Push Back 

But as the concerns mount, agrichemical industry allies are pushing back. This month a group of three researchers with long-standing close ties to the companies that sell agricultural pesticides released a report seeking to soothe consumer worries and discount the scientific research.

The report, which was issued Oct. 21, stated that “there is no direct scientific or medical evidence indicating that typical exposure of consumers to pesticide residues poses any health risk. Pesticide residue data and exposure estimates typically demonstrate that food consumers are exposed to levels of pesticide residues that are several orders of magnitude below those of potential health concern.”

Not surprisingly, the three authors of the report are closely tied to the agrichemical industry. One of the report’s authors is Steve Savage, an agrichemical industry consultant and former DuPont employee. Another is Carol Burns, a former scientist for Dow Chemical and current consultant for Cortevia Agriscience, a spin-off of  DowDuPont. The third author is Carl Winter, Chair of the Department of Food Science and Technology at the University of California at Davis. The university has received approximately $2 million a year from the agrichemical industry, according to a university researcher, though the accuracy of that figure has not been established.

The authors took their report directly to Congress, holding three different presentations in Washington, D.C., designed to promote their message of pesticide safety for use in “media food safety stories, and consumer advice regarding which foods consumers should (or should not) consume.”

The pro-pesticide sessions were held at the office buildings for members of Congress and, appropriately it seems, at the headquarters for CropLife America, the lobbyist for the agrichemical industry. 

 

An Unappetizing Analysis from the FDA

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Last month the Food & Drug Administration published its latest annual analysis of the levels of pesticide residues that contaminate the fruits and veggies and other foods we Americans routinely put on our dinner plates. The fresh data adds to growing consumer concern and scientific debate over how pesticide residues in food may contribute – or not – to illness, disease and reproductive problems.

Over 55 pages of data, charts and graphs, the FDA’s “Pesticide Residue Monitoring Program” report also provides a rather unappetizing example of the degree to which U.S. farmers have come to rely on synthetic insecticides, fungicides and herbicides in growing our food.

We learn, for instance, in reading the latest report, that traces of pesticides were found in 84 percent of domestic samples of fruits, and 53 percent of vegetables, as well as 42 percent of grains and 73 percent of food samples simply listed as “other.” The samples were drawn from around the country, including from California, Texas, Kansas, New York and Wisconsin.

Roughly 94 percent of grapes, grape juice and raisins tested positive for pesticide residues as did 99 percent of strawberries, 88 percent of apples and apple juice, and 33 percent of rice products, according to the FDA data.

Imported fruits and vegetables actually showed a lower prevalence of pesticides, with 52 percent of fruits and 46 percent of vegetables from abroad testing positive for pesticides. Those samples came from more than 40 countries, including Mexico, China, India and Canada.

We also learn that for the most recently reported sampling, among the hundreds of different pesticides, the FDA found traces of the long-banned insecticide DDT in food samples, as well as chlorpyrifos, 2,4-D and glyphosate.  DDT is linked to breast cancer, infertility and miscarriage, while chlorpyrifos – another insecticide – has been scientifically shown to cause neurodevelopmental problems in young children.

Chlorpyrifos is so dangerous that the European Food Safety Authority has recommended a ban of the chemical in Europe, finding that there is no safe exposure level. The herbicides 2,4-D and glyphosate are both linked to cancers and other health problems as well.

Thailand recently said it was banning glyphosate and chlorpyrifos due to the scientifically established risks of these pesticides.

Despite the prevalence of pesticides found in U.S. foods, the FDA, along with the Environmental Protection Agency (EPA) and the U.S. Department of Agriculture (USDA), assert that pesticide residues in food are really nothing to worry about. Amid heavy lobbying by the agrichemical industry the EPA has actually supported continued use of glyphosate and chlorpyrifos in food production.

The regulators echo the words of Monsanto executives and others in the chemical industry by insisting that pesticide residues pose no threat to human health as long as the levels of each type of residue falls under a “tolerance” level set by the EPA.

In the most recent FDA analysis, only 3.8 percent of domestic foods had residue levels that were considered illegally high, or “violative.” For imported foods, 10.4 percent of the foods sampled were violative, according to the FDA.

What the FDA did not say, and what regulatory agencies routinely avoid saying publicly, is that the tolerance levels for certain pesticides have risen over the years as the companies that sell the pesticides request higher and higher legal limits. The EPA has approved several increases allowed for glyphosate residues in food, for instance. As well, the agency often makes the determination that it need not comply with a legal requirement that states the EPA  “shall apply an additional tenfold margin of safety for infants and children” in setting the legal levels for pesticide residues. The  EPA has overridden that requirement in the setting of many pesticide tolerances, saying no such extra margin of safety is needed to protect children.

The bottom line: The higher the EPA sets the “tolerance” allowed as the legal limit, the lower the possibility that regulators will have to report “violative” residues in our food.  As a result, the U.S. routinely allows higher levels of pesticide residues in food than other developed nations. For example, the legal limit for the weed killer glyphosate on an apple is 0.2 parts per million (ppm) in the United States but only half that level – 0.1 ppm – is allowed on an apple in the European Union. As well, the U.S. allows residues of glyphosate on corn at 5 ppm, while the EU allows only 1 ppm.

As legal limits rise for pesticide residues in food, many scientists have been increasingly raising alarms about the risks of regular consumption of the residues, and the lack of regulatory consideration of the potential cumulative impacts of consuming an array of bug and weed killers with every meal.

A team of Harvard scientists are calling for in-depth research about potential links between disease and consumption of pesticide as they estimate that more  than 90 percent of people in the United States have  pesticide residues in their urine and blood due to consumption of pesticide-laced foods.  A study connected to Harvard found that dietary pesticide exposure within a “typical” range was associated both with problems women had getting pregnant and delivering live babies.

Additional studies have found other health problems tied to dietary exposures to pesticides, including to glyphosate.  Glyphosate is the most widely used herbicide in the world and is the active ingredient in Monsanto’s branded Roundup and other weed killing products.

Pesticide Industry Push Back 

But as the concerns mount, agrichemical industry allies are pushing back. This month a group of three researchers with long-standing close ties to the companies that sell agricultural pesticides released a report seeking to soothe consumer worries and discount the scientific research.

The report, which was issued Oct. 21, stated that “there is no direct scientific or medical evidence indicating that typical exposure of consumers to pesticide residues poses any health risk. Pesticide residue data and exposure estimates typically demonstrate that food consumers are exposed to levels of pesticide residues that are several orders of magnitude below those of potential health concern.”

Not surprisingly, the three authors of the report are closely tied to the agrichemical industry. One of the report’s authors is Steve Savage, an agrichemical industry consultant and former DuPont employee. Another is Carol Burns, a former scientist for Dow Chemical and current consultant for Cortevia Agriscience, a spin-off of  DowDuPont. The third author is Carl Winter, Chair of the Department of Food Science and Technology at the University of California at Davis. The university has received approximately $2 million a year from the agrichemical industry, according to a university researcher, though the accuracy of that figure has not been established.

The authors took their report directly to Congress, holding three different presentations in Washington, D.C., designed to promote their message of pesticide safety for use in “media food safety stories, and consumer advice regarding which foods consumers should (or should not) consume.”

The pro-pesticide sessions were held at the office buildings for members of Congress and, appropriately it seems, at the headquarters for CropLife America, the lobbyist for the agrichemical industry. 

 

Another St. Louis Roundup Cancer Trial Officially Postponed Until 2020

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A trial set to start next week over claims that Monsanto’s Roundup weed killers cause cancer has been postponed until at least next year, according to a judge’s ruling on Friday.

The trial would have been the first of its kind to take place in the St. Louis area, Monsanto’s hometown before the company sold to German pharmaceutical giant Bayer AG last year.

Two previously scheduled trials in St. Louis area were also postponed until next year. The status of the trial that had been due to start next week  – Walter Winston, et al v. Monsanto – had already been in doubt for weeks but the delay was made official Friday:

“Whereas the parties in the above-captioned case have requested that the Court take the trial in the above-captioned case off calendar, it is hereby ORDERED that the trial, scheduled for october 15, 2019 will not begin as scheduled. Cause set for status on Feb 10, 2020 @ 9:00 a.m. SO ORDERED: JUDGE MICHAEL MULLEN.”

The Winston case has been unraveling a thread at a time over issues of venue. The case was filed in St. Louis City Court but last month Mullen, who is a St. Louis Circuit Court Judge,  transferred all plaintiffs except Winston from the city court to St. Louis County. Lawyers for the plaintiffs then sought to have the trial take place in the county court on Oct. 15, a position Monsanto opposed. Last week, a judge in the county ruled against the plaintiffs bid for that trial date.

Lawyers for the plaintiffs are now asking for a trial date later this year or early next year. With the transfer of the 13 plaintiffs out of the Winston case in St. Louis City, the case in St. Louis County is now titled Kyle Chaplick, et al v. Monsanto.

“Monsanto’s repeated attempts to avoid the trial…  should be rejected, and the case should be set for trial in 2019 or as soon thereafter as is practicable,”‘ the plaintiffs’ attorneys stated in a motion filed Oct. 3.

The 14 plaintiffs who were in the Winston case are among more than 18,000 people in the United States suing Monsanto claiming that exposure to the company’s glyphosate-based herbicides caused them to develop non-Hodgkin lymphoma and that Monsanto hid the risks associated with its weed killers.

Three juries in three trials over similar claims have found in favor of plaintiffs and ordered large punitive damages against Monsanto.

Bayer and lawyers for the plaintiffs are engaged in discussions about a potential global settlement  of the litigation. Bayer has been dealing with a depressed share price and disgruntled investors ever since the Aug. 10, 2018 jury decision in the first Roundup cancer trial. The jury awarded California groundskeeper Dewayne “Lee” Johnson $289 million and found that Monsanto acted with malice in suppressing information about the risks of its herbicides.

Monsanto Makes New Bid to Block St. Louis Trial

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Less than a month away from what would be the fourth Roundup cancer trial to pit cancer victims against the former agrochemical giant Monsanto Co., lawyers for the opposing sides continue to battle over how, when and where the case should – or should not – be heard.

Lawyers for Monsanto and for its German owner Bayer AG, sent a letter last week to the presiding judge in St. Louis County Circuit Court seeking action that would break up the group of plaintiffs into many smaller groups and delay the trial date of Oct. 15 that was previously set for 14 plaintiffs who had been grouped under the case Winston V. Monsanto.

Lead plaintiff Walter Winston and 13 others from around the country were set for trial in St. Louis City Court but Monsanto protested the venue for all the plaintiffs except Winston and after months of battling between the lawyers for both sides, St. Louis Circuit Court Judge Michael Mullen transferred all plaintiffs except Winston to St. Louis County in a Sept. 13 order.  A Missouri Supreme Court ruling early this year found it was improper for plaintiffs’ attorneys to anchor plaintiffs from outside the area to someone who had proper venue to bring a lawsuit in St. Louis.

Plaintiffs attorneys have been working to keep all 14 plaintiffs together and on track for an Oct. 15 trial, seeking approval for Judge Mullen to take a temporary assignment to the county for the purposes of trying the Roundup case. But Monsanto protested that effort, calling it an “extraordinary  proposal” in the company’s Sept. 19 letter to St. Louis County Judge Gloria Clark Reno.

The company said the plaintiffs’ attorneys “have only themselves to blame for the position they are now in. At the time they filed their claims, venue in the City of St. Louis was not proper… The Missouri Supreme Court’s decision… flatly confirmed that conclusion.”

Additionally, Monsanto’s lawyers argued in their letter that any trial should have no more than two plaintiffs: “A joint trial of the disparate claims of thirteen plaintiffs – claims arising under the law of three different states – would inevitably and impermissibly confuse the jury and deprive Monsanto of a fair trial.”

The Winston lawsuit, filed in March of 2018, would be the first trial to take place in the St. Louis area. Two trials that had been set to start in St. Louis in August and September have been delayed.

Before selling to Bayer last year, Monsanto was based in the suburb of Creve Coeur and was one of the largest St. Louis area-based employers.  Roundup cancer trials that had been set for St. Louis area in August and September have both already been delayed until next year. The back and forth battling over where and when the Winston trial may or may not take place has been ongoing for more than a year.

The plaintiffs in the Winston case are among more than 18,000 people in the United States suing Monsanto claiming that exposure to the company’s glyphosate-based herbicides caused them to develop non-Hodgkin lymphoma and that Monsanto hid the risks associated with its weed killers. Three juries in three trials over similar claims have found in favor of plaintiffs and ordered large punitive damages against Monsanto.

Bayer and lawyers for the plaintiffs are engaged in discussions about a potential global settlement  of the litigation. Bayer has been dealing with a depressed share price and disgruntled investors ever since the Aug. 10, 2018 jury decision in the first Roundup cancer trial. The jury awarded California groundskeeper Dewayne “Lee” Johnson $289 million and found that Monsanto acted with malice in suppressing information about the risks of its herbicides.

UPDATED- St. Louis Trial over Monsanto Roundup Cancer Claims in Limbo

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(UPDATE) – On Sept. 12, the Missouri Supreme Court closed the case, agreeing with plaintiffs’ attorneys that Monsanto’s request for the high court to take up the venue issue was moot.   St. Louis Circuit Court Judge Michael Mullen then transferred all plaintiffs except Winston to St. Louis County in a Sept. 13 order.)

An October trial pitting a group of cancer patients against Monsanto in the company’s former home state of Missouri is snared in a tangled web of actions that threaten to indefinitely postpone the case.

New court filings show that lawyers for both sides of Walter Winston, et al v. Monsanto have been engaging in a series of strategic moves that may now be backfiring on them leading up to the trial date of Oct. 15 date set by St. Louis Circuit Court Judge Michael Mullen. Lawyers for the 14 plaintiffs named in the Winston lawsuit have been pushing to keep their case on track so they can present claims from the cancer victims to a St. Louis jury next month. But Monsanto lawyers have been working to delay the trial and disrupt the combination of plaintiffs.

The Winston lawsuit, filed in March of 2018, would be the first trial to take place in the St. Louis area. Before selling to the German company Bayer AG last year, Monsanto was based in the suburb of Creve Coeur and was one of the largest St. Louis area-based employers.  Roundup cancer trials that had been set for St. Louis area in August and September have both already been delayed until next year.

The plaintiffs in the Winston case are among more than 18,000 people in the United States suing Monsanto claiming that exposure to the company’s glyphosate-based herbicides caused them to develop non-Hodgkin lymphoma and that Monsanto hid the risks associated with its weed killers.

The back and forth battling over where and when the Winston trial may or may not take place began more than a year ago and has involved not only the local St. Louis court but also the appeals court in Missouri and the state Supreme Court.

In March of this year Monsanto filed a motion to sever and transfer 13 of the 14 plaintiffs in the Winston case from the St. Louis City Court to the Circuit Court for the County of St. Louis, where the company’s registered agent was located and where “venue is proper.”  The motion was denied. The company had filed a similar motion in 2018 but it also was denied.

The plaintiffs’ lawyers opposed such a severing and transfer earlier this year, but they have now changed that stance because amid all the maneuvering, Monsanto has been seeking intervention by the Missouri Supreme Court. The state’s high court ruled earlier this year in an unrelated case that it was not proper for plaintiffs located outside St. Louis City to join their cases to a city resident in order to obtain venue in St. Louis City. St. Louis City court has long been considered a favorable venue for plaintiffs in mass tort actions

Monsanto’s bid for intervention by the Missouri Supreme Court was rewarded on Sept. 3 when the Supreme Court issued a “preliminary writ of prohibition” allowing Walter Winston’s individual case to “proceed as scheduled” in St. Louis City Circuit Court. But the court said that the cases of the 13 other plaintiffs joined in Winston’s lawsuit could not proceed at this time as it considers how to handle the cases. The court ordered a freeze on any further actions by the St. Louis City Court, “until the further order of this Court.”

Fearing their case will be broken apart and/or delayed waiting for a Supreme Court decision on venue, the plaintiffs’ lawyers on Sept. 4 said they were withdrawing their opposition to Monsanto’s request for a transfer of the case to St. Louis County.

But now Monsanto no longer wants the case transferred given the Supreme Court’s action. In a filing last week the company said: “Plaintiffs fought venue at every opportunity, instead of agreeing to transfer their claims to St. Louis County and seeking a trial setting in that Court long ago. Rewarding the Winston Plaintiffs for this choice will only encourage further gamesmanship.”

On Monday, the plaintiffs’ attorneys filed a response arguing that the Winston plaintiffs should be transferred to St. Louis County as Monsanto had previously requested and that would make the venue issue before the court moot. They also argued that the judge in St. Louis City who has been presiding over the Winston case should continue to handle the case within the county court system.

“With the withdrawal of their opposition to Monsanto’s motion, Plaintiffs have consented to the very relief that Monsanto requests of this Court – transfer of the Winston plaintiffs to St. Louis County,” the plaintiffs’ filing states.  “The Winston plaintiffs’ case is trial ready. If the case is transferred to St. Louis County in short order, the Plaintiffs can begin trial on or close to the schedule currently in place.”

Whether or not a trial will still take place in mid October in St. Louis is still an open question.

Tech, Medical and Farm Groups Ask Appeals Court to Overturn Verdict Against Monsanto

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Groups representing farm, medical and biotechnology interests have filed briefs with the California Court of Appeal, aligning with Monsanto in asking the court to overturn last summer’s jury verdict that found Monsanto’s glyphosate-herbicides cause cancer and determined that the company spent years covering up the risks.

The groups are urging the appeals court to either throw out the win a San Francisco jury gave to school groundskeeper Dewayne “Lee” Johnson in August of 2018 or to invalidate an order for Monsanto to pay punitive damages to Johnson. The Johnson trial was the first against Monsanto over claims that its glyphosate-based herbicides such as Roundup can cause non-Hodgkin lymphoma.

Johnson is one of more than 18,000 plaintiffs making similar claims. The lawsuits allege that Monsanto was aware of scientific research showing an association between its herbicides and cancer but rather than warn consumers the company worked to suppress the research and manipulate scientific literature.

The jury in the Johnson case decided Monsanto should pay $289 million in damages, including $250 million in punitive damages. The trial judge in the case later slashed the punitive damage amount, reducing the total award to $78 million. Two other juries in subsequent trials over similar claims have also found in favor of plaintiffs and ordered large punitive damages against Monsanto.

Monsanto appealed the verdict and Johnson cross-appealed, seeking reinstatement of the full $289 million. Oral arguments are expected in this appeals court this fall with a potential decision from the appeals court before the end of the year.

One of the parties filing a brief supporting Monsanto’s position is Genentech Inc., a San Francisco biotech company with a history of doing research for cancer treatments. In its appeal to the court, Genentech argues that it has expertise as a “science company” and sees the Johnson verdict as a threat to scientific progress. “Courts must ensure the proper use of science in the courtroom in order for innovation to flourish in the marketplace…” the Genentech brief states.

Genentech announced earlier this year a fast-track review from the Food and Drug Administration for a drug treatment for people with non-Hodgkin lymphoma.

In backing Monsanto’s appeal, Genentech echoed complaints by Monsanto that Johnson’s lawyers did not properly present expert scientific testimony: “Genentech writes to highlight the importance of the proper screening of scientific expert testimony for companies with scientifically innovative products and consumers who rely on their innovations.”

The company also sided with Monsanto on the issue of punitive damages, arguing that companies should not be subject to punitive damages if their product has been reviewed by a regulatory agency such as the Environmental Protection Agency (EPA) and found to not pose a risk to human health.

“Allowing juries to award punitive damages for products that have been specifically examined and approved by regulatory agencies creates a large risk of confusion for life-science-based companies and may deter the progress of science,” the Genentech brief states. “If such punitive damages awards are allowed, companies face the risk of massive punitive damages awards unless they routinely second guess the safety decisions of regulators.”

On Tuesday the California Farm Bureau Federation filed its own brief supporting Monsanto. The farm bureau, which says it represents 36,000 members, said the case is of “vital concern” to farmers and ranchers who “depend on crop protection tools to grow food and fiber.”

Even though the Johnson verdict does not impact the regulation of glyphosate herbicides, the farm bureau argues in its brief that the industry fears restrictions on the chemical. The farm group additionally argued that the “trial court’s decision disregards federal law, as well as state law…” because it conflicts with the EPA’s finding that glyphosate is not likely to cause cancer.

Additionally, California associations representing doctors, dentists and hospitals weighed in on behalf of Monsanto arguing that the jury’s decision in the Johnson case was “subject to emotional manipulation” and not based on “scientific consensus.”

“The answer to the complex scientific question the jury was required to resolve in this case should have been based on accepted scientific evidence and rigorous scientific reasoning, not the jury’s policy choices. Even worse, there is reason to suspect the jury’s analysis was based on speculation and emotion,” the associations said in their brief.

Johnson’s attorney, Mike Miller, said he feels “real good” about the chances of victory in the appeals court and described the brief from the California Medical Association as the “same sophomoric brief they file against every victim of negligence.”

Missouri Trial Can Proceed

In separate action in Missouri , the state’s supreme court said on Tuesday that a trial set to start Oct. 15 in the city of St. Louis can proceed as planned on behalf of plaintiff Walter Winston. Other plaintiffs who had joined in Winston’s complaint against Monsanto are expected to be severed and/or have their cases delayed, according to a decision by the Missouri Supreme Court. Monsanto had asked the high court to prohibit the trial from taking place due to the fact that several plaintiffs do not reside in the area.

The Supreme Court instructed St. Louis City Judge Michael Mullen “take no further action” at this time in the cases of the 13 plaintiffs.

Monsanto was acquired by Bayer AG in June of 2018, and Bayer’s share prices fell sharply following the Johnson verdict and have remained depressed. Investors are pressing for a global settlement to end the litigation.

Emails Reveal Science Publisher Found Papers On Herbicide Safety Should Be Retracted Due to Monsanto Meddling

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Secretive influence by Monsanto in a set of papers published in the scientific journal Critical Reviews in Toxicology was so unethical that an investigation by the publisher found that at least three of the papers should be retracted, according to a series of internal journal communications. The journal editor refused to retract the papers, which declared no cancer concerns with the  company’s herbicides, saying a retraction could impact last summer’s first-ever Roundup trial and harm the authors’ reputations, the emails show.

The journal communications were obtained through discovery by lawyers representing several thousand people suing Monsanto over claims that the company’s glyphosate-based herbicides cause cancer and that Monsanto has covered up the evidence of the dangers.

Unlike the internal Monsanto emails that have thus far come to light revealing the agrochemical company’s manipulation of scientific literature about its herbicides, these emails detail the inner battle within a major scientific publishing house over how it should confront Monsanto’s covert meddling. They were obtained as part of a deposition of Roger McClellan, the longtime editor in chief of the peer-reviewed journal Critical Reviews in Toxicology (CRT.)

The papers in question were published by CRT in September 2016 as an “Independent Review” of the carcinogenic potential of the weed-killing agent glyphosate, the main ingredient in Monsanto’s Roundup herbicide and other brands. The five papers published as part of the review directly contradicted the findings of the World Health Organization’s International Agency for Research on Cancer (IARC), which in 2015 found glyphosate to be a probable human carcinogen. The 16 authors of the papers concluded that the weight of evidence showed the weed killer was unlikely to pose any carcinogenic risk to people.

At the end of the papers the authors stated that their conclusions were free of Monsanto’s intervention. Underscoring the supposed independence of the work, the declaration of interest section stated: “Neither any Monsanto company employees nor any attorneys reviewed any of the Expert Panel’s manuscripts prior to submission to the journal.”

That statement was proven false in the fall of 2017 after internal Monsanto records came to light showing extensive involvement by Monsanto scientists in the drafting and editing of the papers as well as company involvement in selecting the authors. Additionally, internal records showed direct payments to at least two of the so-called independent authors. Monsanto had a contract with author Larry Kier, for instance, paying him $27,400 to work on the papers.

In response to those revelations and questions from media outlets, CRT publisher  Taylor & Francis Group  launched an investigation in the fall of 2017. The newly released communications reveal that after spending months questioning the authors about how the papers came together,  a team of legal and ethics experts put together by Taylor & Francis concluded that the authors had hidden Monsanto’s direct  involvement in the papers, and had done so knowingly. Indeed, some of the authors did not even fully disclose Monsanto involvement in initial questioning by Taylor & Francis during the investigation, the emails show.

The “only tenable outcome is to retract 3 of the articles; specifically the summary, epidemiology and genotoxicity papers,” Taylor & Francis’ Charles Whalley wrote to McClellan on May 18, 2018. Whalley was managing editor of the publishing group’s medicine and health journals at the time.

The internal emails show McClellan refused to accept the idea of retraction, saying that he believed the papers were “scientifically sound” and produced “without external influence” from Monsanto. He said a retraction would tarnish the reputations of the authors, the journal and his own reputation.

“I can not agree to the proposal for retraction you have offered in your memo of May 18th, McClellan wrote in response.  In a series of emails McClellan laid out his arguments against retraction, saying   “Retractions of the papers would do irreparable harm to multiple parties including, most of all, the authors, the Journal , the publisher and key employees such as you and, in addition, me in my role as the Scientific Editor of CRT.”

In an email dated June 5, 2018, McClellan declared that he knew Monsanto had a “vested interest” in the publication of the papers and was personally aware of Monsanto’s relationships, including compensation agreements, with the authors, and still was satisfied that the papers were “scientifically sound.”

“In my professional opinion, the five Glyphosate papers are scholarly pieces of work clearly documenting the process used to critique the IARC report and provide an alternative hazard characterization,” McClellan wrote. “The five papers are scientifically sound. It would be a breach of scientific ethics and my own standards of scientific integrity to agree to retraction of any or all of the Glyphosate papers…”

Whalley pushed back, saying that the authors of the papers were clearly guilty of “misconduct and a breach of publishing ethics,” so severe as to warrant retraction. The “breaches of publication ethics that we have identified in this case are clear breaches of fundamental and clearly defined standards, and not attributable to misunderstandings of detail or nuance,” Whalley wrote to McClellan. He said the publisher had reviewed the guidelines from the Committee on Publication Ethics (COPE) before making the decision.  “Retractions are evidence that editorial policies are working, not that they have failed,” he wrote.

Whalley and McClellan argued over the retraction for months, the records show.  In one July 22, 2018 email McClellan pointed out that the first trial against Monsanto over the Roundup cancer claims was taking place at the time so the journal discussions of a retraction were “quite sensitive since the Johnson vs. Monsanto trial is underway in San Francisco.”  He suggested that instead of retracting the papers, they simply correct  the section at the end of the papers where the authors disclose potential conflicts.

“I urge you to agree to my recommendation to publish corrected and expanded Declaration of Interest statements and abandon the “we gotcha” approach with Retraction of the papers,” McClellan wrote to Whalley in a July 2018 email.  “I will not allow my well-earned reputation to be tarnished by arbitrary and capricious actions by others.”

“In this case, we need to collectively attempt to reach agreement on an equitable outcome that is FAIR to the authors, the publisher, CRT readers, the public and me as the Editor-in-Chief and the CRT Editorial board. We must not take an approach that determines winners and losers in legal cases based on what is allowed to appear in the peer reviewed literature,” McClellan wrote.

Neither McClellan nor Whalley responded to a request for comment regarding this article.

The CRT glyphosate series was considered so significant that its findings were widely reported by media outlets around the world and cast doubt upon the validity of the IARC classification. The papers were published at a critical time as Monsanto was facing doubts by European regulators about allowing glyphosate to remain on the market and growing unease in U.S. markets as well. The 2016 series was “widely accessed,” with one of the papers in the series accessed “over 13,000 time,” according to the internal journal correspondence.

The importance of the papers to Monsanto was laid out in a confidential document dated May 11, 2015, in which Monsanto scientists spoke of “ghost-writing” strategies that would lend credibility to the “independent” papers the company wanted to have created and then to be published by CRT.  Monsanto had announced in 2015 that it was hiring Intertek Scientific & Regulatory Consultancy to put together a panel of independent scientists who would review the IARC classification of glyphosate as a probable carcinogen. But the company had pledged that it would not be involved in the review.

Though Monsanto’s involvement was revealed in 2017 Taylor & Francis took no public action until September 2018 as the publisher and editor wrestled over the retraction issue. McClellan ultimately won the argument and no retractions were made. The internal emails show that Whalley notified the 16 authors of the glyphosate papers of the decision to merely publish corrections to the articles and update the declarations of interest at the end of the papers. That Aug. 31, 2018 email states:

            “We note that, despite requests for full disclosure, the original Acknowledgements and Declaration of Interest statements did not fully represent the involvement of Monsanto or its employees or contractors in the authorship of the articles. As referred to in our previous memos to you, this specifically relates to the statements that:

           ‘Neither any Monsanto company employees nor any attorneys reviewed any of the Expert Panel’s manuscripts prior to submission to the journal.’ and that ‘The Expert Panelists were engaged by, and acted as consultants to, lntertek, and were not directly contacted by the Monsanto Company.’ 

          “From information you have provided to us, we now believe that neither of these statements was accurate at time of submission. This is in contradiction to declarations you made on submission and to warranties you made in the Author Publishing Agreements regarding your compliance with Taylor & Francis’ policies. To provide the necessary transparency to our readers, we will publish corrections to your articles to update their respective Acknowledgements and Declaration of Interest statements as per the material you have provided.”

In September of 2018 the papers were updated to carry an “Expression of Concern” and updates to the acknowledgements and declaration of interests. But despite the findings of Monsanto’s involvement, the papers are still titled with the word “independent.”

Whalley left Taylor & Francis in October of 2018.

The journal’s handling of the matter has troubled some other scientists.

“McClellan’s comments about why he did not retract the paper was disingenuous, self-serving, and violate sound editorial practice,” said Sheldon Krimsky,  a Tufts University professor and a fellow of the Hastings Center, an independent bioethics research institution. Krimsky is also associate editor for a Taylor & Francis journal called “Accountability in Research.”

Nathan Donley, a senior scientist employed by the nonprofit Center for Biological Diversity said the journal’s failure to retract was a failure of transparency.  “This was one of the most disgraceful events in scientific publishing that I have ever witnessed,” Donley said. “What we’re left with is an expression of concern that no one will read and a blatant misrepresentation that this was somehow an ‘independent’ endeavor.  This was a win for the most powerful player in the pesticide industry, but it came at the expense of ethics in science.”

Click here to read 400-plus pages of the emails.