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.

St. Louis Roundup Cancer Trial Reset for January, Talk of Bayer Settlement

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The much-anticipated Roundup cancer trial set to get underway in two weeks in Monsanto’s former hometown of St. Louis is being rescheduled,  according to the a spokeswoman for the St. Louis County Court where the trial was set to begin Aug 19.

Court spokeswoman Christine Bertelson said Judge Brian May, who is overseeing the case of Gordon v. Monsanto, communicated late Monday that the trial was being continued, but no official order has yet been entered into the court file.  Jury questionnaires were due next week and the voir dire selection of the jury was set for Aug. 18 with opening statements Aug. 19.

Judge May is rescheduling the trial for January and will issue an order within the next few days, according to Bertelson.

Aimee Wagstaff, lead attorney for plaintiff Sharlean Gordon, said that a continuance was a possibility but nothing official was determined at this point.

“The judge has not entered an order continuing the trial,” Wagstaff said. “Of course, as with every trial, a continuance is always a possibility for factors often outside control of the parties. Ms. Gordon is ready to try her case on August 19 and will be disappointed if the case is in fact continued. We are ready on whatever day the trial does commence.”

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

Before selling to Germany-based Bayer AG last summer, Monsanto was headquartered in the St. Louis, Missouri area for decades, and still maintains a large employment and philanthropic presence there. Bayer recently announced it would add 500 new jobs to the St. Louis area.

Last week, Judge May denied Monsanto’s motion seeking a summary judgment in favor of Monsanto, and denied the company’s bid to exclude plaintiff’s expert witnesses.

Bayer has been under great pressure to settle the cases, or at least avoid the specter of another high-profile courtroom loss after losing all three of the first Roundup cancer trials. The company is currently facing more than 18,000 plaintiffs alleging that exposure to Monsanto’s glyphosate-based herbicides, such as Roundup, caused them to develop non-Hodgkin lymphoma. The lawsuits allege that Monsanto knew of the cancer risk but failed to warn users and worked to suppress scientific information about the cancer risk.

It is not uncommon for parties to discuss a potential settlement ahead of trial, and it would not be surprising for Bayer to offer a settlement for the Gordon case alone given the negative publicity that has been associated with each of the three trials. Evidence publicized through the trials has exposed years of secretive conduct by Monsanto that juries have found warranted more than $2 billion in punitive damages. The judges in the cases have also been harshly critical of what the evidence has shown about Monsanto’s conduct.

U.S. District Court Judge Vince Chhabria said this about the company: “There’s a fair amount of evidence that the only thing Monsanto cared about was undermining the people who were raising concerns about whether Roundup caused cancer. Monsanto didn’t seem concerned at all about getting at the truth of whether glyphosate caused cancer.”

Last week, Bloomberg reported that Bayer AG Chief Executive Officer Werner Baumann said he would consider a “financially reasonable” settlement. The company’s shares have plummeted since the first jury verdict came down Aug. 10 awarding $289 million to California school groundskeeper Dewayne “Lee” Johnson. Monsanto has appealed the verdict.

Some legal observers said that Bayer could be angling to delay the trial and/or simply distract plaintiff’s attorneys with settlement speculation.

Judge Cuts Amount Monsanto Owner Bayer Owes Cancer Victim

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A federal judge has slashed the punitive damages a jury ordered Monsanto to pay to cancer victim Edwin Hardeman from $75 million to $20 million, despite the judge’s description of Monsanto’s conduct surrounding questions about the safety of its Roundup herbicide as “reprehensible.”

U.S. District Judge Vince Chhabria ruled Monday that the jury’s decision in the Hardeman case to award punitive damages of $75 million was “constitutionally impermissible.” By lowering it to $20 million, combined with the compensatory damages awarded by the jury, the total the agrochemical company owes Hardeman is $25,267,634.10, the judge said. The original verdict handed down by the six-member jury was $80 million.

Judge Chhabria had many harsh words for Monsanto, which was purchased last year by Bayer AG. He wrote in his ruling that the “evidence presented at trial about Monsanto’s behavior betrayed a lack of concern about the risk that its product might be carcinogenic.”

“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,” Judge Chhabria said in his ruling.

“For example, while the jury was shown emails of Monsanto employees crassly attempting to combat, undermine or explain away challenges to Roundup’s safety, not once was it shown an email suggesting that Monsanto officials were actively committed to conducting an objective assessment of its product. Moreover, because the jury was aware that Monsanto has repeatedly sold – and continues to sell – Roundup without any form of warning label, it was clear that Monsanto’s “conduct involved repeated actions,” rather than “an isolated incident,” the judge wrote.

Judge Chhabria did offer some supportive words for Monsanto’s position, writing that there was no evidence that Monsanto actually hid evidence from the Environmental Protection Agency (EPA), or “had managed to capture the EPA.”

And, the judge noted that no evidence was presented showing that Monsanto “was in fact aware that glyphosate caused cancer but concealed it, thus distinguishing this case from the many cases adjudicating the conduct of the tobacco companies.”

The Hardeman case is one of thousands pending against Monsanto for which Bayer is liable after purchasing the company in June of 2018. Since the purchase, four plaintiffs in three trials have won damages against the company. All allege they developed non-Hodgkin lymphoma after exposure to Monsanto’s glyphosate-based herbicides, such as Roundup. They additionally allege that the company knew of scientific evidence showing cancer risks associated with its products, but worked to suppress the information to protect its profits.

Michael Baum, one of the team of attorneys leading the Roundup litigation, said the judge’s decision was wrong.

“The Hardeman jurors carefully weighed the evidence and rendered a rational verdict in line with well recognized jury instructions and case law. There is no valid basis for disturbing their punitive damages award—why bother having jurors sacrifice weeks of their lives if a judge can just substitute his judgment for theirs despite so much evidence supporting their conclusions,” Baum said in a statement.