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.  

“Serious, Deadly Injury” Cited in New Appeals Court Filing Over Roundup Cancer Claims

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 A California appeals court should reject efforts by Monsanto to overturn a jury verdict awarding millions of dollars to a school groundskeeper and approve $250 million in punitive damages the jury ordered a year ago this month in the first Roundup cancer trial, according to a brief in the case filed Monday.

The brief filed by lawyers for Dewayne “Lee” Johnson responds to arguments by Monsanto made in the appeal and cross-appeal lodged in the state appellate court. The appeal was initiated last year by Monsanto following an Aug. 10, 2018 jury decision that marked the first of three courtroom losses for the agrochemical giant and its owner Bayer AG. The jury in the Johnson case awarded $289 million in total damages, including $250 in punitive damages. The trial judge then lowered the punitive amount to $39 million for total damages of $78 million.

While Monsanto wants the entire jury decision thrown out, Johnson’s attorneys are asking for the total of $289 million to be restored by the appeals court.

Johnson is one of roughly 18,400 people suing Monsanto over allegations that Monsanto’s glyphosate-based herbicides such as Roundup cause non-Hodgkin lymphoma (NHL) and claims that Monsanto has spent decades covering up the risks.

Both sides in the Johnson appeal are awaiting the scheduling of oral arguments, which are expected within the next couple of months. A decision by the appeals court could come before the end of the year.

The appellate decision could be pivotal. Bayer shares plummeted after the Johnson verdict and have continued to be weighed down by two more jury decisions against Monsanto in two subsequent trials. Bayer has indicated it is ready to talk about a global settlement of the Roundup cancer litigation, and a decision by the appeals court could substantially impact the direction and outcome of settlement talks.

In the brief filed Monday, Johnson’s lawyers argued that Monsanto’s conduct was so “reprehensible” as to warrant much more than a “slap on the wrist,” and cited precedent court decisions finding that punitive damage awards equal to 5 percent of a defendant’s net worth is appropriate for “minimally reprehensible behavior.”

Based on Monsanto’s stipulated net worth of $6.8 billion, the punitive damage award of $250 million equals 3.8% and is “a light punishment considering Monsanto’s highly reprehensible behavior,” lawyers for Johnson stated in their brief. The punitive damage award of $250 million “is not unreasonable and it appropriately serves California’s goals of protecting public health, deterring future corporate malfeasance and punishing Monsanto,” the brief states.

The Johnson argument goes into great detail about evidence obtained through discovery, including internal Monsanto emails in which company scientists discussed ghostwriting scientific literature, Monsanto worries about how to counter building evidence of genotoxicity with its herbicides, the company’s failure to do carcinogenicity testing of its formulations, Monsanto’s cultivation of friendly officials within the Environmental Agency (EPA) for backing, and the company’s secret payments to front groups like the American Council on Science and Health (ACSH) to promote the safety of Monsanto’s herbicides.

Johnson’s attorneys say Monsanto’s deceptive conduct has been similar to that of the tobacco industry.

“The Serious, Deadly Injury Suffered by Johnson Supports a Finding that Monsanto’s Conduct Was Highly Reprehensible,” the Johnson brief states. Johnson’s terminal diagnosis and his very painful physical condition warrants the jury award of $289 million, his lawyers wrote.

“Johnson is suffering from extremely painful, disfiguring lesions all over his body, a consequence of the fatal NHL induced by Roundup,” the brief states. “In light of the high reprehensibility of Monsanto’s behavior, the deathly harm to Johnson, and the high net worth of Monsanto, the punitive damages award of $250 million dollars awarded by the jury comports with due process and should be upheld.”

Monsanto’s brief contradicts the Johnson position on every point and states that there is no legal reason to reinstate the $250 million punitive damage award. The company asserts that because the EPA and other international regulators back the safety of its herbicides, the courts should do the same.

“Monsanto had no duty to warn of a risk that, far from being a prevailing scientific view, worldwide regulators agree does not exist,” the Monsanto brief states. “Reinstatement of the $250 million punitive damage verdict would result in the largest judicially approved award of punitive damages in California history, in a case with exceedingly “thin” evidence of malice or oppression. There is no basis for an award of punitive damages in this case, much less the $250 million awarded by the jury.”

Johnson has additionally failed to establish that Roundup “actually caused his cancer,” according to Monsanto. “Even if Plaintiff introduced some evidence to support a failure-to-warn claim, the worldwide regulatory consensus that glyphosate is not carcinogenic establishes the utter lack of clear and convincing evidence that Monsanto acted with malice,” the company’s brief states.

“The jury’s unusually large compensatory award is just as flawed. It is based on a straightforward legal error—that a plaintiff can recover pain-and-suffering damages for decades beyond his life expectancy—that was induced by counsel’s flagrant attempts to inflame the jury.

“In short, virtually everything in this trial went wrong,” the Monsanto brief states. “Plaintiff is entitled to sympathy, but not to a verdict that ignores sound science, distorts the facts, and subverts controlling law.”

St. Louis Judge Denies Monsanto Bid to Delay Another Roundup Cancer Trial

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Monsanto’s bid to postpone another upcoming Roundup cancer trials in St. Louis has failed – at least for the time being – as a judge has ordered that a trial set for October will proceed.

After hearing Monsanto’s argument last week seeking a continuance in the case of Walter Winston v. Monsanto, St. Louis Circuit Court Judge Michael Mullen denied Monsanto’s request and said the trial would start Oct. 15.  Judge Mullen said that depositions and discovery in the case should continue until Sept. 16 with the jury selection process to begin Oct. 10.

The trial, if it takes place, would be the fourth time Monsanto has had to face cancer patients in a courtroom to answer allegations that its Roundup herbicide products cause non-Hodgkin lymphoma and that the company has sought to cover up information about the risks. Monsanto lost the first three trials and juries awarded more than $2 billion in damages, although each of the three jury awards have been reduced by the trial judges.

The Winston trial would also be the first trial to take place in Monsanto’s former hometown of St. Louis. Before selling to the German company Bayer AG last year, Monsanto was one of the largest St. Louis-based employers.

A trial that had been set to start in St. Louis on Aug. 19 was delayed by court order last week, and a trial that was set to start in September has also been continued.

After the trial continuance announced last week, sources said the company and lawyers for the plaintiffs were moving into serious discussions about a potential global settlement. Currently, more than 18,000 people are suing Monsanto, all alleging they developed non-Hodgkin lymphoma due to Roundup exposure and Monsanto covered up the evidence of danger. Someone falsely floated a potential settlement offer of $8 billion, causing Bayer shares to rise sharply.

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 appealed the verdict to the California Courts of Appeal, and Johnson has cross-appealed seeking to restore his $289 million award from the reduced award of $78 million set by the trial judge. That appeal is continuing and oral arguments are expected in September or October.

As for the St. Louis situation, the Winston trial could still be derailed. The case has multiple plaintiffs, including some from outside the area, and that fact could put the case in the cross-hairs of an opinion  issued earlier this year by the Missouri Supreme Court, potentially tying up the Winston case indefinitely, according to legal observers.

Trump’s EPA Has “Monsanto’s Back”

In separate news, the Environmental Protection Agency (EPA) last week issued a press release to announce that it would not approve cancer warning labels required by the state of California for certain glyphosate-based herbicide products. The EPA said that labeling that states glyphosate is “known to cause cancer,” is false and illegal, and will not be allowed despite a California regulatory action ordering such labeling.

“It is irresponsible to require labels on products that are inaccurate when EPA knows the product does not pose a cancer risk. We will not allow California’s flawed program to dictate federal policy,” said EPA Administrator Andrew Wheeler.

California’s listing of glyphosate as a substance known to cause cancer came after the World Health Organization’s International Agency on the Research for Cancer (IARC) classified glyphosate in 2015 as “probably carcinogenic to humans.”

The fact that the EPA is taking this stance, and found it necessary to issue a press release, appears to validate internal Monsanto documents obtained through litigation discovery that show the EPA was believed to “have Monsanto’s back” when it comes to glyphosate.

In a report attached to a July 2018 email to Monsanto global strategy official Todd Rands, the strategic intelligence and advisory firm Hakluyt  reported to Monsanto the following:

“A domestic policy adviser at the White House said, for instance: ‘We have Monsanto’s back on pesticides regulation. We are prepared to go toe-to-toe on any disputes they may have with, for example, the EU. Monsanto need not fear any additional regulation from this administration.”

Speculation Over Settlement as Roundup Cancer Trial Postponed

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The mysterious delay of what was supposed to be a closely watched St. Louis showdown over claims that Monsanto’s Roundup herbicides cause cancer has stirred speculation that a settlement may be in the offing and heartened investors in Monsanto’s German owner Bayer, who feared a fourth trial loss.

The trial in St. Louis, Monsanto’s former long-time hometown, was set to begin Aug. 19 and feature live testimony from several Monsanto executives subpoenaed by the legal team representing plaintiff Sharlean Gordon. Gordon is one of roughly 18,000 plaintiffs suing Monsanto alleging not only that the company’s glyphosate-based herbicides cause non-Hodgkin lymphoma and that the company knew about the risks but rather than warning users instead acted to suppress and manipulate scientific research.

The three previous trials, which Monsanto lost, were all held in California courts where Monsanto executives could not be compelled to testify live in front of a jury. But in St. Louis they would almost certainly be forced to appear. Plaintiff’s counsel had plans to call former Monsanto Chairman Hugh Grant, as well as company scientists William Heydens, Donna Farmer, and William Reeves. Larry Kier, a Monsanto consultant who became caught up in a ghost-writing scandal, was also on the plaintiff’s list to be called as a witness.

Bayer had its own firepower headed for St. Louis in the form of famed attorney Phil Beck. The company has tried three different legal teams for the three trials so far, adding Beck to the case this summer. Beck, of the Chicago-based Barlit Beck law firm, headed George W. Bush’s trial team in the Florida recount litigation that determined the 2000 presidential election. Beck was tapped to represent the United States in United States v. Microsoft,  in one phase of the Microsoft antitrust action.

It was late Monday afternoon when St. Louis County Court Judge Brian May informed court personnel that the Gordon v. Monsanto trial would be postponed until January. May said he would issue an order at a later date, according to court spokeswoman Christine Bertelson.

Judge May is on vacation this week but wanted to make his intentions clear now because the process of gathering a jury pool for the trial was getting underway. He wanted that process halted to avoid wasting court time and resources and the time of prospective jurors given the trial was being delayed, Bertelson said.

Legal observers said the judge would not delay a trial this close to the opening unless both parties had agreed to the continuance. Neither would comment publicly on whether or not settlement talks were underway for the Gordon case.

Both parties have made it known that they wish to negotiate a global settlement in the Roundup litigation, though sources associated both with Bayer and plaintiffs’ counsel said potential settlement talks may focus initially on the Gordon case alone, or possibly Gordon’s claims along with additional St. Louis plaintiffs.

In a call with investors on July 30, Bayer CEO Werner Baumann said  the company was “constructively engaging in the mediation process” and would “only consider a settlement if financially reasonable and if we can achieve finality of the overall litigation.”

Baumann has come under withering criticism for his touting of the $63 billion acquisition of Monsanto. Within only two months after closing the deal, Bayer share prices plummeted when the first Roundup cancer trial resulted in a unanimous jury verdict of $289 million against the company. Total jury awards in the three trials to date have surpassed $2 billion in punitive damages alone, though judges in the three cases have lowered the punitive awards.

Investors lodged a vote of no confidence against Baumann earlier this year due to the roughly 40 percent drop in share value attributed to the Monsanto litigation.

Investors generally would welcome a global settlement of the litigation, according to investment analysts following Bayer. There has been speculation in the analyst community that a settlement could top $10 billion.

Gordon, 52, was expected to be a particularly compelling plaintiff, according to her attorney Aimee Wagstaff. Gordon, a mother of two, has suffered multiple rounds of unsuccessful cancer treatment for diffuse large B-cell lymphoma and follicular lymphoma, as the cancer has spread through her body over many years. She recently suffered a setback with a diagnosis of myelodysplastic syndrome (MDS).

Gordon developed non-Hodgkin lymphoma after using Roundup herbicides for 25 years at her residence in South Pekin, Illinois. Gordon’s stepfather, who also used Roundup at the family home, 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.

Monsanto fails bid to banish experts from St. Louis Roundup cancer trial

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Monsanto is not finding an early hometown advantage as it prepares for the next Roundup cancer trial after the St. Louis judge who will oversee the trial denied Monsanto’s motion for summary judgment and denied the company’s request to ban experts scheduled to testify for the plaintiff.

Before selling to Germany-based Bayer AG last year, Monsanto was headquartered in the St. Louis, Missouri area for decades, and still maintains a large employment and philanthropic presence there. Some observers have speculated that a St. Louis jury may give Monsanto a good shot at its first trial win  in the sprawling litigation. The company lost the first three trials, all of which took place in California.

But St. Louis County Judge Brian May is not doing Monsanto any favors. In twin rulings, May denied Monsanto’s motion for summary judgment before trial and rejected the company’s request to exclude the opinions of seven expert witnesses that the plaintiff’s attorneys plan to call to testify.

Judge May also ordered that the trial can be recorded and televised via Courtroom View Network from its start on Aug. 19 until conclusion.

The plaintiff in the case is Sharlean Gordon, a cancer-stricken woman in her 50s who used Roundup herbicides for more than 15 years at her residence in South Pekin, Illinois.  Gordon v. Monsanto is actually derived from a case filed in July 2017 on behalf of more than 75 plaintiffs. Gordon is the first of that group to go to trial.

Her case, like that of the thousands of others filed around the United States, alleges use of Monsanto’s glyphosate-based herbicides can cause non-Hodgkin lymphoma and that Monsanto has long known about the potential risks but instead of warning users has actively worked to suppress information.

Gordon was diagnosed with diffuse large B-cell lymphoma, a subtype of non-Hodgkin lymphoma, in 2006.  She was told her cancer was in remission in 2007 but it returned in 2008.  Since then she has gone through two stem cell transplants and spent a lengthy period in a nursing home. She remains very debilitated, according to attorney Aimee Wagstaff.

Wagstaff was the winning attorney in the second Roundup cancer trial, Edwin Hardeman v. Monsanto. In that federal court case, a San Francisco jury returned a verdict of approximately $80 million for Hardeman, including punitive damages of $75 million.  U.S. District Judge Vince Chhabria reduced the punitive damages awarded Hardeman to $20 million from $75 million, putting the total award at  $25,313,383.02.

The jury awards in the other two Roundup cancer trials have also been reduced by the trial judges. In the most recent trial a judge cut the damages awarded an elderly couple from approximately $2 billion to $86 million. And in the first Roundup cancer trial, the judge cut a $289 million verdict awarded to a California school groundskeeper down to $78 million.  

Sick Children Among Cancer Victims Suing Monsanto Over Roundup

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A 12-year-old boy suffering from cancer is among the newest plaintiffs taking on Monsanto and its German owner Bayer AG in growing litigation over the safety of Roundup herbicides and Monsanto’s handling of scientific concerns about the products.

Lawyers for Jake Bellah were in court Monday in Lake County Superior Court in Lakeport, California arguing that Bellah’s young age and diagnosis of non-Hodgkin lymphoma (NHL) qualified him for “trial preference,” or a speedy trial. In their motion, lawyers for the Baum Hedlund law firm of Los Angeles asked for a trial that would begin before the end of this year, within 120 days after a judge’s order if their motion is granted.

Monsanto lawyers opposed the request, arguing that the company would need more time to prepare a defense given the unusual scientific issues of surrounding alleged causation of cancer in a child.

The four plaintiffs who have already had trials against Monsanto were all adults diagnosed with non-Hodgkin lymphoma, and all were victorious. Bellah would likely be the first case of a child with cancer to challenge Monsanto before a jury.

In May, 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. That followed a verdict in March in which a San Francisco jury ordered Monsanto to pay roughly $80 million in damages to plaintiff Edwin Hardeman who also suffers from NHL.  On July 15, the judge in that case reduced the award to $25 million. Last year 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 judge in that case lowered the total verdict to $78 million and the verdict is now on appeal.

Lawyers representing Bellah said the child was exposed to Monsanto’s glyphosate-based herbicide products repeatedly over many years as he played in his family’s yard and around their garden area where his father frequently sprayed the chemicals.

Bellah developed B-cell lymphoma and has been hospitalized and treated with chemotherapy and is currently in remission, according to Pedram Esfandiary, one of the family’s attorneys.

We’re looking forward to having more trials,” said Esfandiary. “It’s unfortunate that the victims include not only hardworking folks like Lee and the Pilliods but also people at the start of their lives.  He is entitled to his day in court.”

A ruling on the Bellah request for a speedy trial is expected by the end of July.

Another lawsuit brought on behalf of a sick child was filed July 12 in Alameda County Superior Court in California, also by the Baum Hedlund firm.

In that case, the plaintiff is identified only as G.B. Bargas. Her father Richard Bargas is listed as a plaintiff individually and on behalf of his daughter. The child’s mother Ronza Bargas is also a plaintiff. The complaint alleges that the child was diagnosed with NHL as a result of exposure to Roundup.

The addition of children to the mass litigation comes as Bayer is exploring whether or not to try to settle the cases. The company’s shares have been battered by the repeated losses in court, and by the revelations of questionable Monsanto conduct with respect to scientific and public scrutiny of its products.

In his court ruling reducing the damages awarded in the Hardeman case, U.S. District Judge Vince Chhabria said that Monsanto’s actions were “reprehensible.” He said evidence showed “Monsanto employees crassly attempting to combat, undermine or explain away challenges to Roundup’s safety.”

He said the company showed a “lack of concern about the risk that its product might be carcinogenic.”