Bayer gets lift in pre-trial ruling ahead of Roundup cancer trial

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A California judge gave Monsanto and its German owner Bayer AG a pre-trial boost in a ruling issued Monday, a week before the scheduled start of a new courtroom challenge to the safety of Monsanto’s Roundup herbicides.

Judge Gilbert Ochoa of the Superior Court of San Bernardino County in California agreed with Monsanto that federal law regarding pesticide regulation and labeling preempts “failure to warn” claims under state law, and the plaintiff in the trial set to start next week will not be allowed to pursue such claims.

“The Court grants Defendant Monsanto Motion for Summary Adjudication of the 2nd and 4th causes of action on the grounds the failure to warn or concealment of glyphosate’s link to cancer is expressly and/or impliedly preempted” by federal law, Ochoa wrote in his order.

The decision was “surprising” to plaintiff’s attorney Fletcher Trammell, who is representing plaintiff Donnetta Stephens in the case against Monsanto. “Obviously we disagree,” he said. The issue could be subject of appeal at some point, he added.

The claims that Monsanto made an unsafe product and knowingly pushed it into the marketplace remain intact and will be presented at trial, according to Trammell.

More Than Two Years

It’s been more than two years since Bayer has had to defend the safety of Monsanto’s weed killing products at a trial. Monsanto has lost three out of three previous trials, with a jury in the last trial ordering a staggering $2 billion in damages due to what the jury saw as egregious conduct by Monsanto in failing to warn users of evidence – including numerous scientific studies – showing a connection between its products and cancer.

Lawyers for Stephens, a regular user of Roundup herbicide for more than 30 years, will try to prove that exposure to the glyphosate-based products made popular by Monsanto caused Stephens to develop non-Hodgkin lymphoma (NHL).

The case is set for trial Monday July 26, delayed by one week as the court deals with a variety of pre-trial motions.  Stephens was diagnosed with NHL in 2017 and has suffered from numerous health complications amid multiple rounds of chemotherapy since then. Because of her poor health,  a judge in December granted Stephens a trial “preference,” meaning her case was expedited, after her lawyers informed the court that Stephens is “in a perpetual state of pain,” and losing cognition and memory.

Several other cases have either already been granted preference trial dates or are seeking trial dates for other plaintiffs, including at least two children, suffering from NHL the plaintiffs allege was caused by exposure to Roundup products.

Monsanto was purchased by Bayer AG in 2018 and is no longer a stand-alone company but is the named defendant in ongoing litigation, which began in 2015 after cancer experts consulted by a unit of the World Health Organization determined glyphosate is a probable human carcinogen with a particular association to NHL.

Roughly 100,000 people in the United States have claimed they developed NHL because of their exposure to Roundup or other Monsanto-made glyphosate-based herbicides.

Preemption Argument

Bayer sees the preemption argument as critical to its ability to limit the ongoing litigation liability. The company has made it clear that it hopes at some point to get a U.S. Supreme Court finding that under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), the U.S. Environmental Protection Agency’s (EPA) position that Monsanto’s herbicides are not likely to cause cancer essentially bars complaints that Monsanto didn’t warn of any cancer risk.

Critics of that position point to a 2005 U.S. Supreme Court ruling in a case titled Bates v. Dow Agrosciences, which established that the EPA’s approval of a product does not rule out claims of a failure to warn brought under state law. Citing the law and the Bates precedent, more than a dozen federal and state courts have rejected the preemption argument.

But some legal experts argue the rejections of the preemption argument in the Roundup litigation are flawed and believe Bayer has a solid defense on that issue.

If Bayer can ultimately get a U.S. Supreme Court win on the preemption question, it could thwart the key claims brought by tens of thousands of plaintiffs and potentially save Bayer from significant ongoing legal liability costs.

In the first trial against Monsanto, a unanimous jury awarded plaintiff Dewayne Johnson $289 million; the plaintiff in the second trial was awarded $80 million; and the jury in the third trial awarded more than $2 billion to husband-and-wife plaintiffs. All the awards were reduced sharply by judges involved in the cases but the verdicts assigning blame to Monsanto for the cancers have not been overturned.

Bayer settlement

Bayer said last year that it had agreed to pay close to $11 billion to settle existing Roundup cancer claims, but many law firms have dismissed the individual offers for their clients as insufficient, and they continue to press for more trials.

Additionally, Bayer has thus far failed to get court approval for varying proposals to try to create a class action settlement program for people who bring cancer claims in the future. After a stinging rebuke of its plans by a federal judge overseeing much of the litigation, Bayer said it is considering pulling Roundup products from the U.S. market for residential users, though not from farm use.

The case is Stephens v. Monsanto CIVSB2104801 in the Superior Court of California – County of San Bernardino.

New analysis of glyphosate industry studies finds them outdated, flawed

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See Carey Gillam’s article in The Guardian, Corporate studies asserting herbicide safety show many flaws, new analysis finds (July 2, 2021). In this post we provide links to the 53 once-secret studies and related materials. 

Questions about the safety of glyphosate-based herbicides (GBHs) have persisted for years, as scientific research has split over whether or not the widely used weed killing chemical introduced by Monsanto in the 1970s causes cancer or other human health problems.

A number of independent studies show links between glyphosate herbicides and cancer and other health problems, leading the International Agency for Research on Cancer in 2015 to classify glyphosate as a probable human carcinogen.

But Monsanto, purchased by Bayer AG in 2018, has maintained glyphosate is not carcinogenic, nor does it cause other health problems when used as directed. Other large chemical companies that sell glyphosate or related products echo Monsanto’s safety assurances.

Regulators in Europe and the United States, Canada and elsewhere have affirmed the corporate assertions of glyphosate safety. They point to decades of tests conducted by or for the companies that have not been published but which regulators have reviewed, as well as published studies in the scientific literature.

The corporate studies have long been kept secret, even by regulators. But in Europe, litigation by a group of European Parliament lawmakers led to the release of dozens of such studies.

A consumer advocacy group, SumOfUs, provided more than 50 studies to two independent scientists for review – Armen Nersesyan and Siegfried Knasmueller, both from the Institute of Cancer Research, Department of Medicine at the Medical University of Vienna.

Knasmueller, the lead author, is an expert in genetic toxicology and along with his work at the cancer institute is editor-in-chief of two prominent scientific journals, including Mutation Research – Genetic Toxicology and Environmental Mutagenesis.

The goal of the evaluation was to determine if the industry studies examined comply with current international guidelines for chemical testing. The studies are those concerning the genotoxic properties of glyphosate.

The resulting analysis was released July 2, 2021 and concluded that the bulk of the industry studies were outdated and did not meet current guidelines. An array of shortcomings and flaws were found in the studies, rendering most of them unreliable, according to the analysis.

In fact, of the 53 studies submitted to regulators by the companies, only two were acceptable under current internationally recognized scientific standards, said Knasmueller.

Knasmueller said there are more reliable methods for detecting carcinogens but those were not used in the industry tests. Read the evaluation here. 

Regulatory renewal sought

The analysis of the older studies comes as the companies that sell glyphosate products are seeking reauthorization in Europe and trying to fight against calls for restrictions and bans on glyphosate across the globe.

In June 2021, the European Union’s (EU) Assessment Group on Glyphosate (AGG) issued an 11,000-page draft report concluding that glyphosate is safe when used as directed and does not cause cancer. The finding is based in part on a dossier of roughly 1,500 studies submitted to European regulators by the “Glyphosate Renewal Group (GRG),” a collection of companies that includes Bayer.

Bayer confirmed that the older studies were included in the new dossier given to European regulators, but said the GRG was “required to submit all genotoxicity studies that have been conducted, including those submitted in past registration review cycles.” The company said the dossier also includes “new genotoxicity studies conducted since the previous re-approval of glyphosate and a vast review of thousands of published scientific publications regarding glyphosate.”

The companies are seeking the renewal of the EU authorization of glyphosate. Current authorization in Europe expires in December 2022. The companies say they also gave regulators a “literature review” of around 12,000 published scientific articles on glyphosate.

 The European Food Safety Authority (EFSA) and the European Chemicals Agency (ECHA) are organizing public consultations to start in September.

The Knasmueller analysis drew both criticism and support from a mix of scientists who reviewed the work. Here are two comments:

Paul Demers,  director of the Occupational Cancer Research Centre, Ontario Health, in Canada:

The classification of the carcinogenicity of glyphosate has been particularly contentious with international bodies disagreeing not only on areas of interpretation but even on which studies to consider. The critical evaluation, using the latest OECD criteria, of 53 studies submitted to Bundesinstitut für Risikobewertung and European Food Safety Authority is a valuable contribution to the ongoing debate on the carcinogenicity of glyphosate. The observation by the authors that few of these studies met the OECD criteria should be considered by regulatory authorities tasked with protecting workers and the public. Personally, I agree with the approaches for evaluation taken by the International Agency for Research on Cancer, which were used for glyphosate. That said, I also believe that there needs to room for scientific debate and disagreements on issues of interpretation, criteria for evaluation, and even what studies to include. However, there should not be a debate on transparency when it comes to the evidence considered by public bodies in determining the safety of chemicals.  Studies of health effects, with sufficient details regarding the methods used and the results, need to be accessible and open to the critical eyes of the scientific community and other concerned parties.” 

Raymond Tice, retired scientist, U.S. National Institute of Environmental Health Sciences, former  President of the U.S. Environmental Mutagen Society: “An analysis of the experimental data supporting the safety of any chemical should be conducted using systematic review methodology… which takes into account not only the completeness of the information but also categorizes the risk of bias, whether positive or negative.  Clearly, this was not conducted by EFSA or by Dr. Knasmueller.  In general, it is not appropriate to disregard all studies that do not meet current standards, but rather to consider the results in terms of their limitations. Overall, It seems to me that Knasmueller is selective (i.e., exhibits bias) in what he presents and does not present. At the same time, I would fault EFSA for not doing due diligence in what they considered…  Also, I agree that there is a suggestion that (glyphosate) is linked to the induction of oxidative stress which can result in DNA damage (i.e., oxidative stress is one of the key characteristics of carcinogens) but would be expected to have a threshold below which damage is not likely to result in an adverse effect.”

Once-secret studies

See the full analysis, authors’ comments, industry summaries, a list of studies submitted for the current European Union re-authorization, and links to 53 previously secret corporate glyphosate studies below:

Reference-List-of-Glyphosate-Studies-submitted-for-the-Renewal-of-Approval-AIR5-of-Glyphosate-in-2020-EN

European Assessment Group on Glyphosate report on glyphosate renewal

Evaluation of the scientific quality of industry studies of genotoxic properties of glyphosate

Comments concerning the mutagenic/genotoxic properties of glyphosate

Toxicological and Metabolism Studies summary by industry

Albaugh 2014 glyphosate reverse mutation assay Switzerland

Syngenta 2012 glyphosate technical micronucleus assay in bone marrow cells of the mouse

Dow Chemical 2012 Micronucleus test of glyphosate TGAI in mice

Industrias Afrasa 2012 reverse mutation with glyphosate

Helm 2010 Reverse Mutation Assay glyphosate using bacteria

Helm 2010 reverse mutation assay 

Helm 2010 mutagenicity of glyphosate testing

Helm 2009 mutagenicity study of glyphosate Germany

Helm 2009 Micronucleus test of glyphosate in bone marrow cells of rat

Syngenta 2009 glyphosate reverse mutation

Jingma Chemicals China 2008 evaluation of the mutagenic potential of glyphosate by reverse mutation assay 

Jingma 2008 evaluation of mutagenic potential of glyphosate by micronucleus assay in mice

Syngenta 2008 glyphosate micronucleus assay in bone marrow cells of the mouse

Helm 2007 Mammalian erythrocyte micronucleus test for glyphosate

Helm Do Brasil 2007 Bacterial reverse mutation test glyphosate

Nufarm 2007 reverse mutation glyphosate technical 05068

Nufarm 2007 1061403 reverse mutation glyphosate technical 05067

Nufarm 2007 1061402 reverse mutation glyphosate technical 05070 

Nufarm 2005 glyphosate technical micronucleus test in the mouse

Monsanto 1998 Mouse micronucleus screening assay of MON-0818

Zeneca Glyphosate 1998 acid Invitro 

Cheminova 1996 reverse mutation glyphosate Brazil

Cheminova 1996 A micronucleus study in mice for the product GILFOS

Zeneca 1996 glyphosate mutagenicity potential

Zeneca 1996 Glyphosate acid mouse bone marrow micronucleus test

Zeneca 1996 glyphosate acid mouse lymphoma gene mutation assay

Sanko 1995 glyphosate in vitro cytogenetics

Sanko 1995 glyphosate DNA Repair Test

Sankyo 1995 reverse mutation study 

Mastra and Maruzen Kako 1995 Technical glyphosate

Mastra and Maruzen Kako 1995 reverse mutation assay glyphosate

Agrichem 1995 Evaluation of ability of glyphosate to induce chromosome aberrations

Feinchemie Schwebda 1994 DNA repair test with primary rat hepatocytes

Feinchemie Schwebda 1994 in vivo mammalian bone marrow cytogenetic test

Feinchemie Schwebda 1993 Mutagenicity-micronucleus glyphosate test in swiss albino mice

Feinchemie Schwebda 1992 Dominant lethal test in Wistar rats

Monsanto 1992 Mouse micronucleus study of Roundup

Monsanto 1992 glyphosate mutagenicity assay on Roundup

Monsanto 1992 Mouse micronucleus study of RODEO glyphosate formulation

Monsanto 1992 glyphosate mutagenicity assay on RODEO herbicide

Monsanto 1992 mouse micronucleus study of DIRECT formulation

Monsanto 1992 glyphosate mutagenicity potential DIRECT brand

Hoechst Dodigen 4022 1992 study of mutagenic potential in strains of salmonella and E Coli

Hoechst Dodigen 4022 1992 Chromosome aberrations in vitro in V79 Chinese hamster cells

Cheminova 1991 #12323 glyphosate mutagenicity test

Cheminova 1991 #12324 Mutagenicity test micronucleus glyphosate

Cheminova 1991 #12325 glyphosate mutagenicity test in vitro mammalian cell gene mutation test

Monsanto 1990 Ames Salmonella mutagenicity assay of MON 0818

Monsanto 1983 In vivo bone marrow cytogenetics study of glyphosate in Sprague-Dawley rats

Monsanto 1983 glyphosate gene mutation assay

Monsanto 1981 Ames salmonella mutagenicity assay of MON 8080

Monsanto 1980 Dominant lethal mutagenicity assay with technical glyphosate in mice

Institute of Environmental Toxicology 1978 Glyphosate report of mutagenic study with bacteria

Elderly woman to take on Monsanto in next trial over cancer claims

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An elderly California woman who was a regular user of Monsanto’s Roundup weed killer for more than 30 years is set as the next person to try to prove that exposure to the chemical causes non-Hodgkin lymphoma, a claim already won by plaintiffs in three previous trials.

The case of Donnetta Stephens v. Monsanto is set for trial July 19 in San Bernardino County Superior Court in California. Stephens from Yucaipa, California was diagnosed with non-Hodgkin lymphoma (NHL) in 2017 and has suffered from numerous health complications amid multiple rounds of chemotherapy since then. Because of her poor health,  a judge in December granted Stephens a trial “preference,” meaning her case was expedited, after her lawyers informed the court that Stephens is “in a perpetual state of pain,” and losing cognition and memory.

Several other cases have either already been granted preference trial dates or are seeking trial dates for other plaintiffs, including at least two children, suffering from NHL the plaintiffs allege was caused by exposure to Roundup products.

Monsanto was purchased by Bayer AG in 2018 and is no longer a stand-alone company but is the named defendant in ongoing litigation, which began in 2015 after cancer experts consulted by a unit of the World Health Organization determined glyphosate, the active ingredient in Monsanto’s  Roundup, is a probable human carcinogen with a particular association to NHL.

Some old evidence, some new

The Stephens case is expected to involve many of the same expert witnesses and same documents and deposition testimony that helped plaintiffs win the prior trials, said Stephens’ lawyer Fletch Trammell. Two new experts who have not testified previously in Roundup trials will be called, however, said Trammell. They are Barry Boyd, an oncologist from Yale Cancer Center, and Luoping Zhang, an adjunct professor of toxicology at the School of Public Health at the University of California, Berkeley.

Zhang is the lead author of a meta-analysis published in 2019 that determined research showed “a compelling link” between exposures to glyphosate-based herbicides, such as Roundup, and increased risk for NHL.  The analysis found that people with high exposures to the popular pesticides have a 41 percent increased risk of developing NHL.

Monsanto has long maintained that there is no legitimate scientific research showing a definitive association between glyphosate and NHL or any type of cancer. A 2020 meta-analysis could be useful to  Monsanto’s defense. That report concluded that there is “no overall evidence of an increased risk” for NHL “in subjects occupationally exposed to glyphosate.”

The Environmental Protection Agency has supported the safety of glyphosate products, saying the agency’s analysis of scientific evidence shows the chemical is “not likely” to cause cancer.

The company claims the scientists with the International Agency for Research on Cancer (IARC),  who classified glyphosate as a probable human carcinogen, engaged in improper conduct and failed to give adequate weight to several important studies.

But the juries in the three prior trials found the evidence so overwhelming in favor of plaintiffs that they awarded the plaintiff in the first trial $289 million; the plaintiff in the second trial $80 million; and more than $2 billion to the husband-and-wife plaintiffs in the third trial. All the awards were reduced sharply by judges involved in the cases but the verdicts assigning blame to Monsanto for the cancers have not been overturned.

Bayer settlement issues

Bayer said last year that it had agreed to pay close to $11 billion to settle close to 100,000 Roundup cancer claims, but many law firms have dismissed the individual offers for their clients as insufficient, and they continue to press for more trials.

Additionally, Bayer has thus far failed to get court approval for varying proposals to try to create a class action settlement program for people who bring cancer claims in the future. After a stinging rebuke of its plans issued last month by a federal judge overseeing much of the litigation, Bayer said it is now considering pulling Roundup products from the U.S. market for residential users, though not from farm use.

There are thousands of plaintiffs still awaiting either settlement offers or trial settings, and as they wait, the deaths mount. Another woman who was granted a trial preference in a December court order, died only a month later, in January. 

The last trial held concluded in May 2019. Since then several other trials have been scheduled but Monsanto settled each case before the trials started.

Trammell said so far Monsanto has not made any settlement offer for the Stephens case and has made only what he called “nuisance value” five-figure offers for other clients he represents.

“She used Roundup for over 30 years, and had heavy exposure,” Trammell said of Stephens. “There is no non-Hodgkin anywhere in her family tree.  They are rolling out the same defenses and I think they’re going to lose on the same grounds.”

According to court filings, Stephens health has deteriorated significantly in the last year:

“The pain and weakness Ms. Stephens experiences in her feet and legs cause her to stumble and fall frequently, and she relies on her husband to walk behind her in case she should fall. Id. Because of this pain and weakness, Ms. Stephens is no longer able to drive a car. Ms. Stephens also suffers from
severe vertigo and very regularly passes out due to the intense dizziness she experiences. 
Formerly, Ms. Stephens was an active individual who loved to tend to her neighbors’ gardens.
Now, she can barely walk and must use a cane or walker to support herself.  Her physician
has informed her that she will need a wheelchair in the near future. Using her own word, Ms.
Stephens describes the pain she experiences as though she is getting shot through with electricity.
As this description reflects, the pain Ms. Stephens experiences is relentless, unabated, and all-consuming, causing this once former active individual to live her life in a perpetual state of fear of undertaking the simple task of movement.”

Bayer did not respond to a request for comment.

The case is Stephens v. Monsanto CIVSB2104801 in the Superior Court of California – County of San Bernardino.

Judge shoots down Bayer’s plan to limit future Roundup legal liability, issues harsh criticism

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(UPDATED May 27 with Bayer statement about new plans)

The federal judge overseeing nationwide Roundup litigation on Wednesday denied Bayer’s latest attempt to limit its legal liability from future cancer claims associated with its glyphosate-based herbicides, citing numerous “glaring flaws” in a settlement proposed to apply to Roundup users who have not yet sued the company but may want to do so in the future.

Saying parts of the plan were “clearly unreasonable” and unfair to cancer sufferers who would be part of the class settlement, U.S. Judge Vince Chhabria castigated Bayer and the small group of lawyers who put the plan together in conjunction with Bayer.

He pointed out that the company has been “losing trials left and right” in claims brought by people suffering from non-Hodgkin lymphoma (NHL) who alleged exposure to Monsanto’s Roundup and other glyphosate-based herbicides were the cause.

Bayer has owned Monsanto since 2018 and has been struggling to defend the cancer claims ever since. Cancer victims have won three trials held to date, and tens of thousands of other plaintiffs have filed lawsuits alleging exposure to Monsanto’s herbicides caused them to develop NHL while Monsanto spent decades hiding the risks.

Elizabeth Cabraser, one of the lawyers who structured the settlement plan, said the proponents were “disappointed” by the ruling and “continue to believe that a multi-billion-dollar class settlement that includes free legal services and substantial compensation to claimants, NHL diagnostic assistance, research into NHL treatment, and Roundup label reform to inform users and the public on all the science regarding a Roundup/NHL link, would provide tremendous financial, health and safety benefits for class members.”

But one of the lead objectors to the plan, lawyer Majed Nachawati, said Cabraser had attempted to “create a sham settlement” that would have harmed the legal rights of “thousands of injured Americans.”

Bayer issued a statement following the judge’s order saying it would consider “the future of glyphosate-based products in the U.S. residential market,” though any changes there would “not affect the availability of glyphosate-based products in markets for professional and agricultural users.” The company said discussions about the future of residential Roundup products was part of a “five-point plan” the company would now pursue.

“The new package of measures, which combine a number of legal and commercial actions, is designed to help the company achieve a level of risk mitigation that is comparable to the previously proposed national class solution,” Bayer said.

Evidence favors plaintiffs, judge says

Judge Chhabria said in his decision that the company’s desire to set up a “science panel” to determine whether or not the herbicides actually cause cancer rather than leave that question to future juries is because of the trial losses the company has so far suffered.

The “reason Monsanto wants a science panel so badly is that the company has lost the ‘battle of the experts’ in three trials, the judge wrote in his order.  “At present, the playing field on the issue of expert testimony related to causation is slanted heavily in favor of plaintiffs.”

The ruling comes after a lengthy hearing last week held to discuss widespread opposition by personal injury attorneys across the United States to the settlement proposal. The proposed plan called for Bayer to put up roughly $2 billion for a series of actions that would help the company avoid future Roundup cancer trials.

The class action settlement would apply to people exposed to Roundup products as of Feb. 3, 2021 who have not yet sued Monsanto or retained a lawyer to do so. The settlement plan would set up a framework for addressing new claims brought by those exposed individuals who develop NHL they attribute to their Roundup exposure. It would apply to people who already have NHL but who have not yet sued the company and to people who develop NHL in the future.

The plan was structured by Bayer in coordination with a small team of plaintiffs’ lawyers who stood to be paid millions of dollars for their participation.

Proponents of the proposed class action plan told the judge it “will save lives,” and provide “speedy compensation” to people who get NHL they blame on Roundup exposure.

But opponents said the proposal actually did little for cancer patients while benefiting Bayer and the lawyers who helped develop the plan.

At the heart of the objections is the view that if approved, the class action plan could limit the due process rights of people to go to trial and seek punitive damages awards in the future if they are diagnosed with NHL after Roundup exposure, while allowing Bayer to keep selling Roundup products with no express warning of a cancer risk on the label.

The limiting of plaintiffs’ ability to seek punitive damages while not limiting Bayer’s ability to keep selling Roundup distinguishes this settlement from any similar class action, according to an opposition brief filed by the nonprofit legal group Public Justice. The plan is a “blueprint for how manufacturers can cut off victims’ rights to seek punitive damages from injuries caused by hazardous pesticides, the group said.

Another key problem with the plan, according to critics, is that everyone in the United States who meets the criteria as a potential plaintiff would automatically become part of the class and subject to its provisions if they did not actively opt out of the class within a specified time period. If people did not opt out – even if they didn’t know about the plan – they would be stripped of  the right to seek punitive damages if they ever did file a lawsuit.

“Monsanto tried to buy its own system of justice and it is wonderful that the court saw through what they were trying to do,” said lawyer Gerson Smoger, who is among the opponents.  “The settlement would’ve been a travesty for those who use Roundup.”

Separate from larger settlement

The class action plan, which is separate from an $11 billion settlement of Roundup litigation announced by Bayer last June to address already filed lawsuits, needs approval from Chhabria. The judge has been overseeing the federal multidistrict Roundup litigation involving thousands of plaintiffs from around the United States.

Bayer’s desire to find a settlement is “not surprising because the alternative to settling – continuing to lose trials left and right – is not attractive,” the judge wrote in his ruling.

“In sum, the settlement proposed by these attorneys would accomplish a lot for Monsanto,” he wrote. “It would substantially diminish the company’s settlement exposure and litigation exposure at the
back end, eliminating punitive damages and potentially increasing its chances of winning trials
on compensatory damages. It would accomplish far less for the Roundup users who have not
been diagnosed with NHL—and not nearly as much as the attorneys pushing this deal contend.”

Bayer’s new plan

Bayer said in addition to consideration of withdrawing Roundup from residential use, the company’s  plan includes the following:

  • Creation and promotion of a new website with scientific studies relevant to Roundup safety, and a request that EPA approves corresponding language on Roundup labels.
  • Exploration of the creation of an independent scientific advisory panel comprised of external scientific experts to review scientific information regarding the safety of Roundup. The results would be released publicly and added to the new website.
  • Continuation of settlement discussions and continuing appeals of the two of the three cases lost at trial. The company already exhausted appeals in the first case it lost at trial. Bayer is hoping to get a case to the U.S. Supreme Court and get a favorable ruling on its position that state-based failure-to-warn claims conflict with, and are preempted by, federal law.

Key Court Hearing Wednesday in Bayer Cancer Liability Litigation

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(UPDATED May 18 with pretrial order)

As Bayer AG works to put an end to costly litigation over alleged connections between Roundup herbicide and cancer, the company faces a critical hearing on Wednesday in federal court in San Francisco.

At issue in the hearing is a proposed $2 billion class action settlement structured by Bayer in coordination with a small team of plaintiffs’ lawyers as a means to address potential future lawsuits.

Proponents of the proposed class action plan say it “will save lives,” and provide “speedy compensation” to people who get NHL.

But the plan has generated widespread opposition from law firms around the country who say the proposal actually does little for cancer patients while benefiting Bayer and the lawyers who structured the proposal and who will be paid millions of dollars in fees if the plan goes through.

The class action settlement would apply to people exposed to Roundup products as of Feb. 3, 2021 who have not yet sued Monsanto or retained a lawyer to do so. The settlement plan would set up a framework for addressing new claims brought by those exposed individuals who develop non-Hodgkin lymphoma (NHL) they attribute to their Roundup exposure.

The class action plan, which is separate from an $11 billion settlement of Roundup litigation announced by Bayer last June to address already filed lawsuits, needs approval from U.S. District Judge Vince Chhabria.  A prior class action settlement plan submitted last year was scorned by Chhabria and then withdrawn. The judge has been overseeing the federal multidistrict Roundup litigation involving thousands of plaintiffs from around the United States.

On Tuesday, Judge Chhabria issued a pretrial order stating that Wednesday’s hearing “will focus on big-picture concerns” with the proposed settlement.

Bayer bought Monsanto in 2018 and has been struggling ever since to defend the line of glyphosate-based herbicide products such as Roundup that Bayer inherited in the acquisition. Cancer victims have won three trials held to date and tens of thousands of other plaintiffs have filed lawsuits alleging exposure to Monsanto’s herbicides caused them to develop non-Hodgkin lymphoma while Monsanto spent decades hiding the risks.

A “Big Prize”

Likening the class action settlement proposal to a “carnival barker hawking a ‘big prize,’” veteran consumer attorney Gerson Smoger told the court in a recent filing: “This is not merely an unfair deal.  It is a deal designed to allow Monsanto to poison future generations. Monsanto knows it can only do this if it can put shackles on our system of justice. After four attempts, it should be clear that this proposed settlement cannot be remedied. This Court should deny preliminary approval and end this exercise in allowing a corporation to buy its own justice system.”

Smoger is one of more than 160 lawyers from more than 90 law firms who have notified the court they object to the proposed class action settlement, which has been rewritten multiple times already to try to appease objections.

At the heart of the objections is the view that if approved, the class action plan could limit the due process rights of people to go to trial and seek punitive damages awards in the future if they are diagnosed with NHL after Roundup exposure, while allowing Bayer to keep selling Roundup products with no express warning of a cancer risk on the label.

The limiting of plaintiffs’ ability to seek punitive damages while not limiting Bayer’s ability to keep selling Roundup distinguishes this settlement from any similar class action, according to an opposition brief filed by the nonprofit legal group Public Justice. The plan is a “blueprint for how manufacturers can cut off victims’ rights to seek punitive damages from injuries caused by hazardous pesticides, the group said.

“Importantly, there has never been a release of punitive damages in a class action settlement involving a hazardous product that was still on the market. If this Court approves this Settlement, it would be the first time that has ever happened in the history of American jurisprudence,” the Public Justice brief states.

The critics also object to the proposed formation of a science panel designed to provide evidence about whether or not the company’s glyphosate-based herbicides actually are carcinogenic, a four-year stay of future litigation, and many other components of the plan.

Proponents Cite Plan Benefits

The legal team pushing the class action settlement forward, counters that the plan actually is a good thing for people who may develop NHL in the future.

“This settlement will save lives. It will deliver notice, outreach, and information, including on the product label itself, to Roundup users—among them those overlooked by the tort system to date—that they may be at risk and should take action,” the proponents of the plan said in a court filing.

According to the class action settlement proponents, the plan will

  • Alert potential class members to be evaluated for NHL, and provide them diagnostic assistance to do so through a medical-monitoring program
  • Provide an option for “significant and speedy compensation” if a class member gets NHL
  • Provide access to free legal services
  • Fund research into treatment and diagnosis of NHL.
  • Allow class members the right to sue Monsanto for compensatory damages if the class member prefers

Judge Chhabria said in an order issued May 10 that along with hearing from the proponents of the plan, he will allow oral arguments from all those who have filed objections to the plan in Wednesday’s hearing.

In his pretrial order issued May 18, Chhabria said several questions would need to be addressed. Among the questions posed by the judge are these:

  • Why is it in the interest of the class to agree in advance to the admission in future trials of
    the conclusions of a court-appointed independent science panel, given how well the trials
    have been going for plaintiffs without such a panel?
  • If the Court understands the settlement correctly, it binds anyone exposed to Roundup
    before February 3, 2021 (assuming they do not opt out), but contemplates that the
    compensation fund and medical monitoring program can be terminated a few years after
    the settlement is approved. Why would it be in the interest of people exposed to Roundup
    before February 2021 to bind themselves to a fund and program that expires so quickly?
  • Is it appropriate to certify a class for settlement purposes when it is obvious that the class could never be certified for litigation purposes?

Another loss for Bayer over Roundup cancer claims as appeals court shoots down preemption argument

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In a blow to Monsanto owner Bayer AG’s bid to block continued liability over Roundup cancer litigation, a federal appeals court shot down the company’s argument that federal regulatory backing of the company’s herbicides preempts claims made by cancer patient Edwin Hardeman.

In a ruling issued Friday, the U.S. Court of Appeals for the Ninth Circuit affirmed the district court’s judgment in favor of Hardeman, and said Monsanto erred in asserting that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempts state laws and a duty to warn.

The company’s primary hope since losing all three of three trials held to date is to get a U.S. Supreme Court finding that the U.S. Environmental Protection Agency’s approval of its products under FIFRA  essentially bars complaints that Monsanto didn’t warn of any cancer risk with its herbicides.

The preemption argument is seen as weak by many legal experts because a 2005 U.S. Supreme Court ruling in a case titled Bates v. Dow Agrosciences established that the EPA’s approval of a product does not rule out claims of a failure to warn brought under state law, and FIFRA expressly states that EPA approval doesn’t constitute an absolute defense.

“It’s a dead duck in the water,” Hardeman lawyer Aimee Wagstaff said of the preemption defense. “They need to let that one go.”

Unanimous verdict

Hardeman won a unanimous jury verdict in March 2019 claiming that exposure to Monsanto’s glyphosate-based herbicide products caused his non-Hodgkin lymphoma. He initially was awarded $80 million but the punitive damages were reduced by the trial judge from $75 million to $20 million, leaving him with a total award of approximately $25 million.

The evidence in his case, “showed the carcinogenic risk of glyphosate was knowable at the time of Hardeman’s exposure,” the appeals court ruling states.

The Hardeman case is one of tens of thousands pending against Monsanto for which Bayer is liable after purchasing the company in June of 2018. After Bayer bought Monsanto, four plaintiffs in three trials  won damages against the company. In all, roughly 100,000 U.S. plaintiffs have alleged they developed non-Hodgkin lymphoma after exposure to Monsanto’s glyphosate-based herbicides, such as Roundup. The plaintiffs allege that Monsanto knew for years of scientific evidence showing cancer risks associated with its products, but worked to suppress the information to protect its profits.

In his 2019 ruling cutting the award but upholding the jury finding, U.S. District Judge Vince Chhabria had harsh words for Monsanto, writing: “Despite years of colorable claims in the scientific community that Roundup causes NHL, Monsanto presented minimal evidence suggesting that it was interested in getting to the bottom of those claims… While Monsanto repeatedly intones that it stands by the safety of its product, the evidence at trial painted the picture of a company focused on attacking or undermining the people who raised concerns, to the exclusion of being an objective arbiter of Roundup’s safety.”

Trial pitting farmers against Syngenta delayed until June

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A highly anticipated first-ever trial pitting a group of farmers against the global agricultural giant Syngenta AG over allegations that Syngenta’s paraquat weed killer causes Parkinson’s disease has been delayed until June, the parties involved said on Saturday.

The trial was set to begin Monday, livestreamed by Courtroom View Network, but a continuance was ordered setting a new trial date for June 1. A spokesman for the plaintiffs’ legal team said the delay was not due to any settlement efforts, but due to “a combination of scheduling and Covid issues.”

The case is titled Hoffman V. Syngenta and is set for a bench trial in St. Clair County Circuit Court in Illinois before Associate Judge Kevin Hoerner.

The plaintiffs are farmers who developed Parkinson’s after repeated exposure to paraquat products, specifically Syngenta’s widely used Gramoxone brand, and the spouses of those farmers. Three of the original plaintiffs in the case have died, including plaintiff Thomas Hoffman.

Parkinson’s is a disorder that impacts nerve cells in the brain and  leads in advanced cases to severe physical debilitation and often dementia and death.

Experts in the study and treatment of Parkinson’s warn that the disease is on the rise. One such expert, Dutch neurologist Bastiaan Bloem, predicts the number of people suffering from Parkinson’s will double to more than 13 million in the next 20 years.

Bloem is one of many scientists who blame exposure to paraquat as among multiple risk factors for developing Parkinson’s.

Also named as defendants in the case are Chevron Phillips Chemical Co., formed as a joint venture between Chevron USA and Phillips 66. Chevron helped distribute Syngenta’s products in the United States. Illinois agricultural cooperative Growmark is also a defendant for its role in supplying paraquat products.

There are currently at least 20 lawsuits filed in multiple state and federal courts across the country on behalf of plaintiffs who have been diagnosed with Parkinson’s, and claim Syngenta’s paraquat weed killers are to blame.

Lawyer C. Calvin Warriner III, who is not involved in the Hoffman case but has other plaintiffs suing over the same issues, said he predicts “hundreds if not thousands of cases” will be filed in the next year because of “solid” scientific evidence linking paraquat to Parkinson’s.

Trial lawyers accuse Monsanto, Bayer of “pay-to-appeal scheme,” allege “fraud”

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The lawyers who led the nationwide U.S. Roundup litigation through three trial victories and forced Monsanto owner Bayer AG into an $11 billion settlement have notified a federal court that they have uncovered evidence of fraud in a secret deal between Monsanto and a lone plaintiff’s lawyer who has not been active in the litigation until recently.

In a series of filings made Thursday with the U.S. Court of Appeals for the 11th Circuit, lawyers from three firms involved in the three successful Roundup trials alerted the court to what they said was an effort by Monsanto to “buy” a favorable appellate court ruling.

The agreement between Monsanto and one plaintiff and his attorney is a “pay-to-appeal scheme,” according to plaintiffs’ lawyers Aimee Wagstaff, Brent Wisner and Jennifer Moore.  The legal team asks the court to dismiss the appeal they allege is the focus of the scheme.

The lawyer involved in cutting the deal with Monsanto is Ashleigh Madison of Southeast Law LLC in Savannah, Georgia.  Madison confirmed various terms of the arrangement with Monsanto to Wagstaff’s firm in an email and phone conversations recounted in a declaration, according to the filings made Thursday.

When contacted for comment, Madison denied the allegations and said her client’s best interests are her “top priority.” She said she looks “forward to further addressing the matter before a court of law, as our system of justice intends.”

Bayer, which bought Monsanto in 2018, also said the claims made by Wagstaff, Wisner and Moore are false.  The company issued a statement saying it has been “completely transparent about its desire to appeal Roundup failure-to-warn cases on federal preemption grounds,” and the deal with Madison and her client is “an appropriate path for such an appeal.”

Monsanto has lost all appeals associated with the first case that went to trial, Johnson v. Monsanto, and has appeals pending in the two subsequent trials it lost. Juries in the three trials found the company’s glyphosate-based weed killers such as Roundup caused non-Hodgkin lymphoma suffered by plaintiffs, and that Monsanto failed to warn of the risks.

The company’s primary hope at this point is to get a U.S. Supreme Court finding that the U.S. Environmental Protection Agency’s approval of its products, and stance that those products are not likely to cause cancer, essentially bars complaints that Monsanto didn’t warn of any cancer risk with its herbicides. Monsanto is asserting the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempts state laws and a duty to warn.

But a 2005 U.S. Supreme Court ruling in a case titled Bates v. Dow Agrosciences established that the EPA’s approval of a product does not rule out claims of a failure to warn brought under state law, and FIFRA expressly states that EPA approval doesn’t constitute an absolute defense. Citing the law and the precedent, more than a dozen federal and state courts have rejected the preemption argument, according to the filing submitted Thursday by the plaintiffs’ lawyers.

If Bayer can force one of the weaker cases to the U.S. Supreme Court and win on preemption, it would thwart the key claims brought by tens of thousands of plaintiffs and likely save Bayer from significant ongoing legal liability costs.

Georgia judge decision

At the heart of the matter is one case, that of Carson v. Monsanto, filed in 2017. The case alleged that plaintiff John Carson developed malignant fibrous histiocytoma (MFH) from exposure to Roundup. The legal team for the nationwide litigation point out in their filing this week that while there is robust scientific evidence associating Roundup exposure to NHL, there is a lack of scientific evidence associating Roundup to MFH, differentiating the case from the bulk of others filed against the company.

The case languished until Monsanto filed a motion with U.S. District Judge R. Stan Baker in Savannah, Georgia seeking a judgment in its favor on the issue of federal preemption. The district court judge found in favor of Monsanto, agreeing the Carson claim was preempted and the company had no duty to warn of a cancer risk. The judge ruled in favor of Carson, however, on claims that Monsanto was negligent and the design of Roundup products was defective.

Monsanto has since told Carson and his attorney to drop the claims they won on and appeal the preemption ruling they lost, according to the declaration filed by David Wool, a lawyer in the Andrus Wagstaff plaintiffs’ firm.

“Monsanto’s counsel, Martin Calhoun of Hollingsworth LLP, told Madison that Monsanto would never pay her client anything unless he appealed the District Court’s preemption decision – a decision that Monsanto won – and that Monsanto was offering to pay Carson money to appeal the decision,” the declaration states.

Monsanto agreed to pay Carson an undisclosed sum only if he will appeal the decision, according to the new court filing. If he does not drop the claims he won and appeal the preemption matter Monsanto has threatened to make him pay nearly $100,000 in legal fees and costs, according to information turned up by Wagstaff, Wisner and Moore’s law firms.

Carson is required by the deal to appeal only the preemption issue and no other elements of his claims, the legal challenge states:

“While Monsanto’s Civil Appeal Statement suggests it paid Carson to settle his claims not subject to this appeal, in truth, it did no such thing. Payment of the first sum was tied to noticing the appeal, not dismissal of any of Carson’s claims. Carson’s attorney openly admits that Monsanto would never pay Carson unless he appealed the district court’s preemption ruling and corroborated, in writing, that the settlement agreement requires Carson to appeal. If Carson does not appeal, he does not get paid. Indeed, his appeal is so central to getting paid that if he elects to not appeal, he is not only bereft of any settlement, but he is also subject to hefty  liquidated damages. Monsanto is paying Carson to appeal and then threatening him if he does not follow through.

“This appeal should be dismissed—any other result would set a dangerous precedent of appellate review being “for sale” to deep-pocketed litigants. This appeal should be dismissed—any other result would set a dangerous precedent of appellate review being “for sale” to deep-pocketed litigants.”

Allowing the Monsanto-manufactured appeal to go forward “risks turning the justice system on its head by allowing deep-pocketed parties to attempt to broaden the scope of favorable rulings they receive by coercing their adversaries to appeal. This Court’s decisions should not be for sale,” the plaintiffs’ team states in their filing. “This sort of judicial manipulation must be loudly and forcefully rejected.”

Monsanto “ulterior motives”

The declaration filed by Wool recounts conversations with Madison, Carson’s attorney. He states: “On March 15, 2021 I called attorney Ashleigh Madison. During the conversation, Madison confirmed her client’s settlement agreement with Monsanto in the Carson case, and stated that the “first payment” was triggered by filing a notice of appeal.  I expressed my concern that Monsanto had concocted this settlement agreement in an attempt to create favorable appellate law for itself. Madison confirmed that this was her understanding as well, stating that she believed Monsanto had “ulterior motives.”

According to Wool, Madison said her client had only a “very slim chance” of winning the appeal Monsanto was inducing them to file. Still, her client would obtain a “high” value from Monsanto, she told Wool, according to the declaration.

In their letter brief to the court, the trial lawyers said because Carson’s counsel admits that Monsanto is paying Carson to appeal a decision Monsanto won at in order to create appellate precedent, the case “warrants immediate dismissal.”

Litigants “cannot buy appellate review of decisions they won. The Court should reject this attempt to manipulate our judicial system and dismiss the appeal with prejudice because Carson and Monsanto are
deceiving the Court by claiming that an actual case or controversy exists when, in truth, this
appeal was bought and paid for by Monsanto,” they wrote. The Carson agreement “erodes the very foundation of our justice system, which is premised on the principle that opposing parties are actually adversarial—not paying each other to manufacture controversies and seek advisory opinions.”

Bayer said in its statement that the trio of trial lawyers are mischaracterizing the facts.

“Under the settlement, the company agreed to pay Carson $100,000 to drop the surviving design defect claims and to pursue the preemption ruling against him,” Bayer said in the statement. “If he succeeds in the appeal, he gets an additional substantial payment. If Carson drops the appeal, he would simply have to return the $100,000 settlement payment because he would be in breach of its terms. Thus, plaintiffs’ characterization of the $100,000 as a ‘penalty’ in a court filing is completely false, and nothing more than an effort to block this appeal on federal preemption grounds which threatens their interests in this litigation.”

New Roundup cancer trials loom despite Bayer settlement efforts

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Ken Moll is girding for battle.

Moll, a Chicago-based personal injury attorney, has dozens of lawsuits pending against the former Monsanto Co., all alleging the company’s Roundup weed killers cause non-Hodgkin lymphoma, and he is now preparing several of those cases for trial.

Moll’s firm is one of a handful that have refused settlement offers made by Monsanto owner Bayer AG, deciding instead to take the fight over the safety of Monsanto’s glyphosate-based herbicide products back into courtrooms around the country.

Though Bayer has assured investors it is bringing closure to the costly Roundup litigation through settlement deals totaling more than $11 billion, new Roundup cases are still being filed, and notably several are positioned for trial, with the earliest set to start in July.

“We’re going forward,” Moll said. “We’re doing this.”

Moll has lined up many of the same expert witnesses who helped win the three Roundup trials held to date. And he plans to rely heavily on the same internal Monsanto documents that provided shocking revelations of corporate misconduct that led juries to award hefty punitive damages to the plaintiffs in each of those trials.

Trial set for July 19

One case with a trial date looming involves a 70-year-old woman named Donnetta Stephens from Yucaipa, California who was diagnosed with non-Hodgkin lymphoma (NHL) in 2017 and has suffered from numerous health complications amid multiple rounds of chemotherapy. Stephens was recently granted a trial “preference,” meaning her case has been expedited, after her lawyers informed the court that Stephens is “in a perpetual state of pain,” and losing cognition and memory. The case is set for trial July 19 in San Bernardino County Superior Court in California.

Several other cases have either already been granted preference trial dates, or are seeking trial dates, for elderly people and at least one child suffering from NHL the plaintiffs allege was caused by exposure to Roundup products.

The litigation is not over. It is going to be a continued headache for Bayer and Monsanto,” said Andrew Kirkendall, whose Texas-based firm is helping represent Stephens and other clients seeking speedy trials.

Kirkendall said his firm has lawsuits moving forward to trial in California, Oregon, Missouri, Arkansas and Massachusetts.

This has the potential to be the next asbestos litigation,” he said, referring to decades of lawsuits brought over asbestos-related health problems.

Bayer rejection

Bayer bought Monsanto in June 2018 just as the first Roundup cancer trial was getting underway. Juries in each of the cases that went to trial found that Monsanto’s herbicides do cause cancer and that Monsanto spent decades hiding the risks. Jury awards totaled well over $2 billion, though the judgments have been ordered reduced in the appeals process.

After coming under intense pressure from investors to find a way to cap liability, Bayer announced in June that it had reached a $10 billion settlement to resolve most of more than 100,000 Roundup cancer claims in the United States. Since that time it has been signing deals with law firms around the country, including the firms that have led the litigation since the first suits were filed in 2015. The company is also trying to get court approval for a separate $2 billion plan to try to keep Roundup cancer cases that could be filed in the future from going to trial.

Bayer has been unable to settle with all of the firms with Roundup cancer clients, however. According to multiple plaintiffs’ attorneys, their firms rejected settlement offers because the amounts generally ranged from $10,000 to $50,000 per plaintiff – compensation the attorneys deemed inadequate.

“We said absolutely no,” Moll said.

Another law firm pushing cases forward for trial is the San Diego, California-based Singleton Law Firm, which has roughly 400 Roundup cases pending in Missouri and about 70 in California.

The firm is seeking an expedited trial now for 76-year-old Joseph Mignone, who was diagnosed with NHL in 2019. Mignone completed chemotherapy more than a year ago but also has endured radiation to treat a tumor on his neck, and continues to suffer debilitation, according to the court filing seeking trial preference.

Stories of suffering

There are many stories of suffering within the files of the plaintiffs who are still hoping to get their day in court against Monsanto.

  • Retired FBI agent and college professor John Schafer began using Roundup in 1985 and used the herbicide multiple times during spring, fall and summer months until 2017, according to court records. He did not wear protective clothing until warned by a farmer friend in 2015 to wear gloves. He was diagnosed with NHL in 2018.
  • Sixty-three year-old Randall Seidl applied Roundup over 24 years, including regularly spraying the product around his yard in San Antonio, Texas from approximately 2005 to 2010 and then around property in North Carolina until 2014 when he was diagnosed with NHL, according to court records.
  • Robert Karman applied Roundup products beginning in 1980, generally using a hand-held sprayer to treat weeds on a weekly basis roughly 40 weeks a year, according to court records. Karman was diagnosed with NHL in July 2015 after his primary care doctor discovered a lump in his groin. Karman died in December of that year at the age of 77.

Plaintiffs’ attorney Gerald Singleton said Bayer’s only path to putting the Roundup litigation behind it is to put a clear warning label on its herbicide products, alerting users to the risk of cancer.

“That is the only way this thing is going to be over and done,” he said. Until then, he said, “we’re not going to stop taking cases.”

Bayer’s class action settlement plan draws widespread outrage, opposition

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(Updated March 10 to include judge’s order delaying hearing until May 12)

More than 90 law firms and more than 160 lawyers have notified a federal court judge overseeing U.S. Roundup litigation that they oppose Monsanto owner Bayer AG’s $2 billion plan to settle future claims the company expects to be brought by people diagnosed with cancer they blame on use of Monsanto’s herbicide products.

In recent days, nine separate objections to the plan and four amicus briefs have been filed with the U.S. District Court for the Northern District of California, letting Judge Vince Chhabria know the extent of opposition to the proposed class settlement. Chhabria has been overseeing thousands of Roundup cancer lawsuits in what is called ‘multidistrict litigation’ (MDL).

On Monday, the National Trial Lawyers (NTL) joined in the opposition on behalf of its 14,000 members. The group said in their filing with the court that they agree with the opposition that “the proposed settlement seriously endangers access to justice for millions of people in the proposed class, would prevent Monsanto’s victims from holding it accountable, and would reward Monsanto in numerous respects.”

The group reiterated in its filing the fear that if Bayer’s proposed settlement is approved, it will set a dangerous precedent for plaintiffs in future, unrelated cases: “It will hurt the proposed class members, not help them. This type of settlement would also provide an untenable template for other corporate tortfeasors to avoid appropriate liability and consequences for their conduct… the proposed class settlement is not how a ‘system of justice’ works and thus such a settlement should never be approved.”

The $2 billion proposed settlement is aimed at future cases and is separate from the $11 billion Bayer has earmarked to settle existing claims brought by people alleging they developed non-Hodgkin lymphoma (NHL) due to exposure to Monsanto’s weed killers. The people impacted by the class settlement proposal are individuals who have been exposed to Roundup products and either already have NHL or may develop NHL in the future, but who have not yet taken steps to file a lawsuit.

No punitive damages

One of the key problems with the Bayer plan, according to critics, is that everyone in the United States who meets the criteria as a potential plaintiff will automatically become part of the class and subject to its provisions if they do not actively opt out of the class within 150 days after Bayer issues notifications of the formation of the class. The notification proposed is not sufficient, the critics say. Moreover, the plan then strips those people – who may not even choose to be a part of the class – from the right to seek punitive damages if they do file a lawsuit.

Another provision garnering criticism is a proposed four-year “standstill” period blocking the filing of new lawsuits.

The critics also object to the proposed formation of a science panel that would act as a “guidepost” for an “extension of compensation options into the future” and to provide evidence about the carcinogenicity – or not – of Bayer’s herbicides.

The initial settlement period would run for at least four years and could be extended after that period.  If Bayer elects not to continue the compensation fund after the initial settlement period, it will pay an additional $200 million as an “end payment” into the compensation fund, the settlement summary states.

Struggling for a solution

Bayer has been struggling to figure out how to put an end to the Roundup cancer litigation since buying Monsanto in 2018. The company lost all three trials held to date and lost the early rounds of appeals seeking to overturn the trial losses.

Juries in each of the three trials found not only that Monsanto’s glyphosate-based herbicides such as Roundup cause cancer, but also that Monsanto spent decades hiding the risks.

The small group of lawyers who put the plan together with Bayer say it will “save lives” and will provide “substantial benefits” to people who believe they developed cancer from exposure to the company’s herbicide products.

But that group of lawyers stands to receive $170 million for their work with Bayer to implement the proposed plan, a fact critics say taints their involvement and objectivity. None of the lawyers involved in putting the class action plan together with Bayer actively represented any plaintiffs in the broad Roundup litigation before this point, the critics point out.

In one of the opposition filings, lawyers seeking a rejection of the proposed settlement wrote this:

“This proposed settlement is opposed by those most familiar with the litigation of cases involving dangerous products like Roundup because they recognize that this proposal would benefit Monsanto and class counsel at the expense of the millions of people exposed to Roundup.

“Although this Roundup MDL has been underway for over four years, and other Roundup cases have been litigated in state courts, the impetus for this engineered class action settlement does not come from lawyers who have been handling Roundup cases and believe that an alternative method for resolving them is essential. Instead, the lawyers who are behind this settlement – and it is surely the lawyers and not Roundup victims – are class-action lawyers who seek to impose their views on all those who have been exposed to Roundup, in exchange for a very large fee.

“But an even bigger winner here will be Monsanto, which will get a four-year stay of litigation by class members, who will also lose their right to seek punitive damages and be saddled with the results of an ill-conceived science panel. In exchange, class members will be shunted into an alternate compensation system that features modest payments, increased complexity, and high hurdles to qualify.”

Delay sought

Bayer’s settlement plan was filed with the court on Feb. 3, and must be approved by Judge Chhabria in order to become effective. A prior settlement plan submitted last year was scorned by Chhabria and then withdrawn.

A hearing on the matter was set for March 31 but the attorneys who put the plan together with Bayer have asked Judge Chhabria to delay the hearing until May 13, citing the breadth of the opposition they must address. The judge responded with an order resetting the hearing for May 12.

“These filings totaled more than 300 pages, in addition to more than 400 pages of attached declarations and exhibits,” the lawyers said their request for more time. “The objections and amicus briefs raise a host of issues, including, among other things, the overall fairness of the settlement, multiple constitutional attacks on the settlement and proposed advisory science panel, technical challenges to the notice program, attacks on the fairness of the compensation fund, and challenges to predominance, superiority, and the adequacy of class (and subclass) counsel.”

The lawyers who filed the proposed plan said they could use the additional time before the hearing “to engage with objectors” to “streamline or narrow the issues that need to be contested at the hearing.”

Deaths continue

Amid the arguments over Bayer’s proposed settlement, plaintiffs continue to die. In what is referred to as a “Suggestion of Death,” lawyers for plaintiff Carolina Garces filed a notification with the federal court on March 8 that their client had died.

Several plaintiffs suffering from non-Hodgkin lymphoma have died since the start of the litigation in 2015.