Son testifies about his mother’s cancer alleged due to Roundup exposure

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A woman suffering from non-Hodgkin lymphoma was a devoted user of Roundup herbicide for decades before she became ill, her son testified Tuesday in a California trial that marks the fourth such trial pitting a cancer victim against Roundup maker Monsanto.

Under questioning by a lawyer representing plaintiff Donetta Stephens, her son David Stephens recalled his mother’s frequent use of Roundup in the yard and her tendency to wear sleeveless shirts and shorts when outside spraying the weed killer. He described recalling her use when he was a child and that use continuing when he was an adult and had his own children.

Stephens also testified about a family gathering in which his mother broke the news of her cancer to the family, the lengthy series of medical treatments that followed, his mother’s memory loss and other treatment-related problems, and a period in which his mother was hospitalized multiple times and nearly died.

Stephens is one of tens of thousands of plaintiffs who filed lawsuits against Monsanto after the World Health Organization’s cancer experts in 2015 classified glyphosate as a probable human carcinogen with an association to non-Hodgkin lymphoma. Glyphosate is the active ingredient in Roundup and other weed killing brands.

Bayer AG bought Monsanto in June 2018 just as the first trial was getting underway.

Three previous trials held to date were all found in favor of the plaintiffs. Jurors in those trials agreed with claims that Monsanto’s glyphosate-based weed killers, such as Roundup, cause non-Hodgkin lymphoma, and that Monsanto spent decades covering up the risks and failing to warn users.

The Stephens case is being tried in the Superior Court of San Bernardino County in California under the oversight of Judge Gilbert Ochoa. Though the trial started in person, Judge Ochoa ordered the proceedings shifted to a Zoom trial due to concerns about the spread of Covid-19 virus.

In testimony Tuesday, David Stephens broke down, emotionally describing a time when it appeared his mother was near death, and speaking of a photo he took of her that he thought at the time would be the last.

“I took that picture because when you think that your mother is going to die and that could be the last picture…,” Stephens said haltingly. “I wanted to take that picture so I could remember…”

Donnetta Stephens is now in remission from cancer but has been left debilitated, her son testified.

Former Monsanto scientist Donna Farmer will be called to testify next week, according to Stephens’ lawyer Fletch Trammell.

Technical trouble

The trial has been plagued by technical issues since the transition to a virtual setting through Zoom. There have been multiple times proceedings have been halted because a lawyer or juror loses an audio or video connection or experiences other difficulties. The virtual format has also proven problematic at times for the presentation of certain exhibits.

A courtroom attendant has been assigned to monitor jurors to determine if they are paying attention, and to alert the judge to lost connections or other problems.

In Tuesday’s testimony, as Monsanto lawyer Manuel Cachan was attempting to cross examine Stephens, questioning the reliability of his memory regarding his mother’s use of Roundup, the technical trouble kicked in again.

“I’m sorry for the interruption, juror number 13 is having issues, just starting to quote unquote glitch out,” the courtroom attendant interjected.

Minutes later: “Pardon me… juror number 11 has just disconnected,” the courtroom attendant interrupted again.

Some legal observers have speculated that the losing party in the trial will have an easy avenue for appeal given the persistent interruptions and difficulties.

Trial overlap

A fifth Roundup trial was starting jury selection this week in a case involving a boy with non-Hodgkin lymphoma.

The child, Ezra Clark, is the subject of a trial beginning this week in Los Angeles County Superior Court. Clark was “directly exposed” to Roundup many times as he accompanied his mother while she sprayed Roundup to kill weeds around the property where the family lived, according to court documents. Ezra sometimes played in freshly sprayed areas, according to the court filings.

Ezra was diagnosed in 2016, at the age of 4, with Burkitt’s lymphoma, a form of NHL that has a high tendency to spread to the central nervous system, and can also involve the liver, spleen and bone marrow, according to the court filings.

Ezra’s mother, Destiny Clark, is the plaintiff in the case, filing on behalf of Ezra.

Opening statements in the Clark trial are scheduled to begin Wednesday morning.

Bayer denies any cancer connection

Bayer has earmarked more than $14 billion to try to settle the litigation and has announced it will stop selling glyphosate-based herbicides to consumers by 2023. But the company still insists that the herbicides it inherited from Monsanto do not cause cancer.

Last month Bayer filed a writ of certiorari with the U.S. Supreme Court, seeking the high court’s review of the Ninth Circuit Court of Appeals’ decision in the case of Hardeman v. Monsanto. 

The move is widely seen as Bayer’s best hope for putting an end to claims that exposure to Monsanto’s glyphosate-based herbicides, such as the popular Roundup brand, cause non-Hodgkin lymphoma, and the company failed to warn users of the risks.

During the month-long trial in 2019, lawyers for plaintiff Edwin Hardeman presented jurors with a range of scientific research showing cancer connections to Monsanto’s herbicides as well as evidence of many Monsanto strategies aimed at suppressing the scientific information about the risks of its products. Internal Monsanto documents showed the company’s scientists had engaged in secretly ghost-writing scientific papers that the company then used to help convince regulators of product safety.

Covid delays one Roundup cancer trial while another looms

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The California trial pitting an elderly cancer victim against Monsanto owner Bayer AG has been delayed due to concerns about the spread of Covid-19, with proceedings now expected to resume next week in a virtual format via Zoom.

Lawyers for plaintiff Donnetta Stephens say that she was a regular user of Monsanto’s glyphosate-based Roundup herbicide for more than 30 years, an extended exposure that caused her to develop non-Hodgkin lymphoma (NHL).

Before the trial interruption jury members heard expert witness testimony from former U.S. government scientist Christopher Portier, who told jurors of multiple scientific studies that support claims glyphosate herbicides cause NHL. Lawyers for Monsanto sought to discredit Portier, and discount his testimony, arguing he had a vested financial interest in helping plaintiffs’ attorneys.

Additional experts were due to testify this week before in-person proceedings were scuttled due to positive cases of the Covid-19 virus showing up among people in the courtroom.

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.

She is one of tens of thousands of plaintiffs who filed lawsuits against Monsanto after the World Health Organization’s cancer experts classified glyphosate as a probable human carcinogen with an association to non-Hodgkin lymphoma.

She and the others who have sued allege that Monsanto has known for decades of scientific research showing its glyphosate herbicides could cause cancer, but has failed to warn users of the risks, working instead to suppress information about potential dangers.

The company lost the three trials held to date.

Trial with child plaintiff is next

Though Bayer last year said it was moving to settle outstanding Roundup lawsuits, many remain active and headed toward trial.

A boy with non-Hodgkin lymphoma is the subject of a trial scheduled for Sept. 13 in Los Angeles County Superior Court. Ezra Clark was “directly exposed” to Roundup many times as he accompanied his mother while she sprayed Roundup to kill weeds around the property where the family lived, according to court documents. Ezra sometimes played in freshly sprayed areas, according to the court filings.

Ezra was diagnosed in 2016, at the age of 4, with Burkitt’s lymphoma, a form of NHL that has a high tendency to spread to the central nervous system, and can also involve the liver, spleen and bone marrow, according to the court filings.

Ezra’s mother, Destiny Clark, is the plaintiff in the case, filing on behalf of Ezra.

Expedited trial sought for dying man

U.S. District Judge Vince Chhabria, who has been overseeing thousands of Roundup cases through multidistrict litigation proceedings set up in 2016 in federal court in the Northern District of California, has set several upcoming deadlines for moving cases forward that are under his purview. According to a court document filed Monday,  close to 4,000 cases have come under Chhabria’s oversight since the inception of the litigation.

Chhabria has ordered lawyers in the litigation to submit to him by Wednesday a list of certain cases that have not yet settled, and proposed schedules for advancing those cases. He also set a case management conference for Sept. 8.

At least one plaintiff is seeking an expedited trial, asking Chhabria to approve trial preference already granted him by a state court judge. Plaintiff Donald Miller was diagnosed with Stage IV non-Hodgkin lymphoma after using Roundup product for over four decades, according to the court filings.

Miller’s doctor estimated he had a five-year overall survival expectancy of only thirty-seven percent as of
February, 2020, according to court filings. A hearing on the matter is set for Sept. 23.

Many more cases remain pending in state courts, with plaintiffs’ lawyers jockeying for trial dates.

Bayer last week petitioned the U.S. Supreme Court to review one of its trial losses. The company claims federal law preempts key claims made in the litigation.

Bayer, which bought Monsanto in 2018, insists that when used as directed, its glyphosate herbicides are safe and do not cause cancer. It says regulatory approvals support its position.

Scientist testifies in Roundup trial; judge reverses ruling that had helped Monsanto

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A former U.S. government scientist testifying in the fourth Roundup cancer trial to be held in the United States told a California jury this week that multiple research studies conducted over many years show an “almost certain” connection between Monsanto glyphosate-based herbicides and cancer.

Christopher Portier, who is testifying as expert witness on behalf of plaintiff Donnetta Stephens in her lawsuit against Monsanto, appeared in person in the courtroom earlier in the week but answered questions from Monsanto’s lawyer via Zoom on Thursday due to travel commitments.

Portier was also an expert witness for the plaintiffs in the three prior Roundup trials. In each of the prior trials, juries agreed that Monsanto’s glyphosate herbicides caused the plaintiffs to develop a type of cancer called non-Hodgkin lymphoma (NHL).

In hours of testimony that stretched over several days, Portier told jury members about studies done on human cell lines as well as studies conducted on laboratory animals and studies of exposure and disease incidence in humans. The evidence of a cancer connection was strongest in the animal studies, and was supported by the additional research, he said.

“I am certain that glyphosate can cause tumors in animals,” including malignant lymphomas in mice, Portier testified. When asked his opinion on the question of whether or not real-world Roundup exposure can cause NHL in people, Portier said: “I believe that it does, I think the strength of that belief is almost certain but not quite.”

Regular Roundup user 

Lawyers for Stephens say that she was a regular user of Roundup herbicide for more than 30 years and it was that extended exposure to the glyphosate-based products made popular by Monsanto that caused her NHL.

Stephens was diagnosed 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.

She is one of tens of thousands of plaintiffs who filed U.S. lawsuits against Monsanto after the World Health Organization’s cancer experts classified glyphosate – the active ingredient in Monsanto’s herbicides – as a probable human carcinogen with an association to non-Hodgkin lymphoma.

Judge Gilbert Ochoa of the Superior Court of San Bernardino County in California is overseeing the proceedings.

Judge reverses order on preemption

In a move that could prove important to the outcome of the case,  Judge Ochoa this week reversed his own pretrial ruling related to Monsanto’s argument that federal law preempts the “failure to warn” claims that Stephens’ lawyers want to present to the jury.

The judge had agreed with Monsanto that federal law regarding pesticide regulation and labeling preempts failure-to-warn claims under state law, and he had limited the ability of Stephens’ lawyers to pursue such claims.

But the judge changed his position after the 1st Appellate District in the Court of Appeal for California issued a ruling on Monday denying Monsanto’s preemption argument in a separate case.

The appeals court issued scathing criticism of Monsanto, writing that “substantial evidence supports the jury’s verdicts” and that “Monsanto’s conduct evidenced reckless disregard of the health and safety of the multitude of unsuspecting consumers it kept in the dark.”

The day after the appeals court ruling, Monsanto noted in a brief filed with Judge Ochoa that it recognized the appellate court decision was “binding” on the San Bernardino court, but said the appeals court “committed legal error.”

Monsanto owner Bayer AG has said publicly it sees its best hope of escaping ongoing litigation in persuading the U.S. Supreme  Court to review and overturn one of the trial losses on the preemption issue.

Another trial sought in St. Louis 

After losing the first three trials, Bayer, which bought Monsanto in 2018, has settled other cases that had been scheduled to go to trial. And in 2020, the company said it would pay roughly $11 billion to settle about 100,000 existing Roundup cancer claims. Late last month, Bayer said it would set aside another $4.5 billion toward Roundup litigation liability.

Bayer also announced it would stop selling Roundup, and other herbicides made with the active ingredient glyphosate, to U.S. consumers by 2023. But the company continues to sell the products for use by farmers and commercial applicators.

But several law firms continue to seek to bring cases to trial. In late July, lawyers for a group of 13 plaintiffs filed a motion with the St. Louis County Circuit Court seeking a trial date. That case is 19SL-CC04115, Kyle Chaplick et al v Monsanto.

Appeals court rejects Bayer bid to overturn Roundup trial loss; cites Monsanto “reckless disregard” for consumer safety

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Monsanto owner Bayer AG has lost another appeals court decision in the sweeping U.S. Roundup  litigation, continuing to struggle to find a way out from under the crush of tens of thousands of claims alleging that Monsanto’s glyphosate-based herbicides cause cancer.

In a decision handed down on Monday, the 1st Appellate District in the Court of Appeal for California rejected Monsanto’s bid to overturn the trial loss in a case brought by husband-and-wife plaintiffs, Alva and Alberta Pilliod.

“We find that substantial evidence supports the jury’s verdicts,” the court stated. “Monsanto’s conduct evidenced reckless disregard of the health and safety of the multitude of unsuspecting consumers it kept in the dark. This was not an isolated incident; Monsanto’s conduct involved repeated actions over a period of many years motivated by the desire for sales and profit.”

The court specifically rejected the argument that federal law preempts such claims, an argument Bayer has told investors offers a potential path out of the litigation. Bayer has said it hopes it can get the U.S. Supreme  Court to agree with its preemption argument.

In May 2019 a jury awarded the Pilliods more than $2 billion in punitive and compensatory damages after lawyers for the couple argued they both developed non-Hodgkin lymphoma caused by their many years of using Roundup products.

The trial judge lowered the combined award to $87 million.

In appealing the loss, Monsanto argued not only that the Pilliod claims were preempted by federal law, but also that the jury’s causation findings were flawed, the trial court should not have admitted certain evidence, and that “the verdict is the product of attorney misconduct.” Monsanto also wanted the damage awards further slashed.

Court slams company

In the appeals court decision, the court left the award unchanged, and said that Monsanto had not shown that federal law did preempt such claims as those made by the Pilliods. The court also said there was substantial evidence that Monsanto acted with a “willful and conscious disregard for the safety of others,” supporting the awarding of punitive damages.

The evidence showed that Monsanto “failed to conduct adequate studies on glyphosate and Roundup, thus impeding discouraging, or distorting scientific inquiry concerning glyphosate and Roundup,” the court said.

The court also chastised Monsanto for not accurately presenting “all of the record evidence” in making its appeal: “But rather than fairly stating all the relevant evidence, Monsanto has made a lopsided presentation that relies primarily on the evidence in its favor. This type of presentation may work for a jury, but it will not work for the Court of Appeal.”

The court added: “The trial described in Monsanto’s opening brief bears little resemblance to the trial reflected in the record.”

“Summed up, the evidence shows Monsanto’s intransigent unwillingness to inform the public about the carcinogenic dangers of a product it made abundantly available at hardware stores and garden shops across the country,” the court said.

Another trial underway now

The Pilliod trial was the third against Monsanto. In the first trial, a unanimous jury awarded plaintiff Dewayne Johnson $289 million;  the plaintiff in the second trial was awarded $80 million.

The fourth trial began last week. A jury of seven men and five women on Monday were hearing testimony in the case of Donnetta Stephens v. Monsanto in the Superior Court of San Bernardino County in California.  Retired U.S. government scientist Christopher Portier, who has been an expert witness for the plaintiffs in prior Roundup trials, testified at length on Monday, reiterating previous testimony that there is clear scientific evidence showing glyphosate and glyphosate-based formulations such as Roundup can cause cancer.

Bayer, which bought Monsanto in 2018, has settled several other cases that were scheduled to go to trial over the last two years. And in 2020, the company said it would pay roughly $11 billion to settle about 100,000 existing Roundup cancer claims. Late last month, Bayer said it would set aside another $4.5 billion toward Roundup litigation liability.

Bayer also announced it would stop selling Roundup, and other herbicides made with the active ingredient glyphosate, to U.S. consumers by 2023. But the company continues to sell the products for use by farmers and commercial applicators.

Bayer heads into next U.S. cancer trial, opening statements set for Thursday

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Despite Bayer AG’s efforts to put an end to costly litigation inherited in its acquisition of Monsanto, opening statements in yet another trial are set for Thursday as a woman suffering from non-Hodgkin lymphoma claims Monsanto’s Roundup herbicide caused her cancer.

A jury of seven men and five women have been seated in the case of Donnetta Stephens v. Monsanto in the Superior Court of San Bernardino County in California.  Judge Gilbert Ochoa was hearing last-minute arguments over evidence on Wednesday.

The trial comes a week after Bayer announced it would stop selling Roundup, and other herbicides made with the active ingredient glyphosate, to U.S. consumers by 2023. Monsanto was purchased by Bayer AG in 2018, and Bayer insists, just as Monsanto has for decades, that there is no valid evidence of a cancer connection between its weed killing products and cancer.

Bayer said the move to stop selling the  herbicides to consumers was “to manage litigation risk and not because of any safety concerns.” The company said it will continue to sell its glyphosate-based herbicides for commercial use and for use by farmers.

Bayer also said last week it was setting aside $4.5 billion – on top of roughly $11 billion already earmarked for Roundup litigation settlements – to cover “potential long-term exposure” to liability associated with claims from cancer victims such as Stephens.

Bayer further said with respect to ongoing litigation, it “will be very selective in its settlement approach in the coming months.”

Evidence at issue

Ahead of the opening statements in the Stephens trial, many issues were being argued without the jury present on Wednesday in front of Judge Ochoa, including the scope of allowable arguments by plaintiffs that Monsanto should have provided warnings to Roundup users that certain scientific research showed links between its products and cancer.

Judge Ochoa earlier ruled – in agreement with Monsanto – that federal law regarding Environmental Protection Agency (EPA) oversight of pesticide product labeling preempts “failure to warn” claims under state law, meaning Stephens’ lawyers would not be able to pursue such claims.

The plaintiffs still hope to argue, however, that separate from the labeling issues, Monsanto could have, and should have, warned consumers about the potential cancer risk in other ways, according to Stephens’ lawyer Fletcher Trammell. He and Stephens’ other lawyers will seek to prove that Monsanto made an unsafe herbicide product and knowingly pushed it into the marketplace despite scientific research showing glyphosate-based herbicides could cause cancer.

Lawyers for Stephens say that she was a regular user of Roundup herbicide for more than 30 years and it was that extended exposure to the glyphosate-based products made popular by Monsanto that caused her non-Hodgkin lymphoma.

Stephens was diagnosed in 2017 and has suffered from numerous health complications amid multiple rounds of chemotherapy since then.  She is one of tens of thousands of plaintiffs who filed U.S. lawsuits against Monsanto after the World Health Organization’s cancer experts classified glyphosate – the active ingredient in Monsanto’s herbicides – as a probable human carcinogen with an association to non-Hodgkin lymphoma.

The list of evidence to be presented at trial runs more than 250 pages and includes scientific studies as well as Monsanto emails and other internal corporate documents. A federal judge who has been overseeing nationwide Roundup litigation stated in a recent order that there is “a good deal of damning evidence against Monsanto—evidence which suggested that Monsanto never seemed to care whether its product harms people.”

Close to 70 people are listed as witnesses to testify at trial, either live or through deposition testimony, including many former Monsanto scientists and executives.

The first witness set to take the stand is retired U.S. government scientist Christopher Portier, who has been an expert witness for the plaintiffs in each of the prior Roundup trials. Portier has previously testified that there is clear scientific evidence showing glyphosate and glyphosate-based formulations such as Roundup can cause cancer in people. He has also testified in the past that U.S. and European regulators have not properly assessed the science and have ignored research showing cancer concerns with Monsanto’s herbicides.

Before retiring, Portier led the National Center for Environmental Health/Agency for Toxic Substances and Disease Registry at the Centers for Disease Control and Prevention (CDC), part of the U.S. Department of Health and Human Services. Prior to that role, Portier spent 32 years with the National Institute of Environmental Health Sciences, where he served as associate director, and director of the Environmental Toxicology Program, which has since merged into the institute’s National Toxicology Program. Portier was also an “invited specialist” to the International Agency for Research on Cancer unit of the World Health Organization when the group made its probable carcinogen classification of glyphosate in 2015.

Bayer hopes for help from Supreme Court

Monsanto has lost three out of three previous trials, with a jury in the last trial – held in 2019 – 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. (The award was later shaved to $87 million.)

In trying to free itself from the weight of Monsanto-related woes, Bayer said last week that in addition to  replacing its glyphosate-based products in the U.S. residential market with new formulations using alternative ingredients, it is exploring changes to Roundup labeling.

“It is important for the company, our owners, and our customers that we move on and put the uncertainty and ambiguity related to the glyphosate litigation behind us,” Bayer CEO Werner Baumann said during a recent investor call.

The company also said it will file a petition this month seeking U.S. Supreme Court review of one of its trial losses – the case of Hardeman v. Monsanto. Bayer said if the Supreme Court grants review,  the company “will not entertain any further settlement discussions” while the court reviews the appeal.

In the event of a “negative Supreme Court outcome,” Bayer said it would set up a claims’ administration program that will offer “pre-determined compensation values”  to “eligible individuals” who used Roundup and developed non-Hodgkin lymphoma over the next 15 years.

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.

U.S. judge sets trial in litigation against Syngenta alleging weed killer causes Parkinson’s disease

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A federal judge appointed to coordinate proceedings for claims that Syngenta AG’s paraquat weed killers cause Parkinson’s disease said Wednesday she was setting a jury trial date for Nov. 15, 2022.

U.S. Judge Nancy Rosenstengel of the Southern District of Illinois issued the order in an initial hearing with lawyers from multiple firms who are representing people alleging their exposure to Syngenta’s popular herbicides caused them or family members to develop and suffer from the dreaded neurological disorder.

There are 157 cases pending in state and federal courts around the country, according to a June 22 court filing. The plaintiffs allege Syngenta was aware of the risks but failed to warn users.

Syngenta, which is owned by a Chinese chemical company, has denied the allegations.

Along with Syngenta, the defendants include Chevron Phillips Chemical Company LP, and Chevron USA, Inc. All have denied any liability.

Several scientific studies have linked paraquat to Parkinson’s, including a large study of U.S. farmers jointly overseen by multiple U.S. government agencies.  Farmers use paraquat in the production of many crops, including corn, soy and cotton. The Agricultural Health Study (AHS) said it found that “exposure to agricultural pesticides may increase a person’s risk of developing Parkinson’s disease.” In 2011, AHS researchers reported that “participants who used paraquat or rotenone were twice as likely to develop Parkinson’s disease as people who didn’t use these chemicals.”

A more recent paper from AHS researchers stated that “Extensive literature suggests an association between general pesticide use and Parkinson’s disease (PD). However, with few exceptions, little is known about associations between specific pesticides and PD.”

Parkinson’s is an incurable progressive nervous system disorder that limits a person’s ability to control movement, causing tremors, loss of balance and eventually often leaving victims bedridden and/or bound to a wheelchair. The disease is not necessarily fatal but typically becomes severely debilitating.

Dutch neurologist Bastiaan Bloem, who recently authored a book about Parkinson’s, blames widespread exposure to herbicides such as paraquat, along with other toxic chemicals used in agriculture and manufacturing, for the spread of the disease.

The case number for the multidistrict litigation in the U.S. District Court for the Southern District of Illinois is 3:21-md-03004-NJR

Some cases already settled

Even as more than 100 cases move forward, several are in the process of settling.

A “notice of settlement” was filed on June 18 in California, stating that the parties in 16 cases pending in that state had reached agreement on settlement terms.

Among the law firms involved in that settlement notice is the Missouri-based firm headed by lawyer Steve Tillery.

Tillery was scheduled to bring one of his cases, Hoffman V. Syngenta, to trial last month, and has accumulated thousands of pages of internal company documents through discovery. He had  threatened to introduce evidence that he said included internal company records showing Syngenta has known for decades that its product causes Parkinson’s Disease.

Tillery has refused to confirm settlement terms.

The Dicamba Papers: Key Documents and Analysis

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Dozens of farmers around the United States are suing the former Monsanto Co., purchased in 2018 by Bayer AG, and conglomerate BASF in an effort to hold the companies accountable for millions of acres of crop damage the farmers claim is due to widespread illegal use of the weed killing chemical dicamba, use  promoted by the companies.

The first case to go to trial pitted Missouri’s Bader Farms against the companies and resulted in a $265 million verdict against the companies. The jury awarded $15 million in compensatory damages and $250 million in punitive damages.

The case was filed in the U.S. District Court for the Eastern District of Missouri, Southeastern Division, Civil Docket #1:16-cv-00299-SNLJ. The owners of Bader Farms alleged the companies conspired to create an “ecological disaster” that would induce farmers to buy dicamba-tolerant seeds. Key documents from that case can be found below.

The EPA’s Office of the Inspector General (OIG) plans to investigate the agency’s approvals of new dicamba herbicides to determine whether the EPA adhered to federal requirements and “scientifically sound principles” when it registered the new dicamba herbicides.

Federal Action

Separately, on June 3, 2020. the U.S. Court of Appeals for the Ninth Circuit said the Environmental Protection Agency had violated the law in approving dicamba herbicides make by Bayer, BASF and Corteva Agrisciences and overturned the agency’s approval of the popular dicamba-based herbicides made by the three chemical giants. The ruling made it illegal for farmers to continue to use the product.

But the EPA flouted the court ruling, issuing a notice on June 8 that said growers could continue to use the companies’ dicamba herbicides until July 31, despite the fact that the court specifically said in its order that it wanted no delay in vacating those approvals. The court cited damage done by dicamba use in past summers to millions of acres of crops, orchards and vegetable plots across U.S. farm country.

On June 11, 2020, the petitioners in the case filed an emergency motion seeking to enforce the court order and to hold the EPA in contempt. Several farm associations have joined with Corteva, Bayer and BASF in asking the court not to immediately enforce the ban. Documents are found below.

Background

Dicamba has been used by farmers since the 1960s but with limits that took into account the chemical’s propensity to drift and volatilize- moving far from where it was sprayed. When Monsanto’s popular glyphosate weed killing products, such as Roundup, started losing effectiveness due to widespread weed resistance, Monsanto decided to launch a dicamba cropping system similar to its popular Roundup Ready system, which paired glyphosate-tolerant seeds with glyphosate herbicides. Farmers buying the new genetically engineered dicamba-tolerant seeds could more easily treat stubborn weeds by spraying  entire fields with dicamba, even during warm growing months, without harming their crops. Monsanto announced a collaboration with BASF in 2011. The companies said their new dicamba herbicides would be less volatile and less prone to drift than old formulations of dicamba.

The Environmental Protection Agency approved the use of Monsanto’s dicamba herbicide “XtendiMax” in 2016. BASF developed its own dicamba herbicide that it calls Engenia. Both XtendiMax and Engenia were first sold in the United States in 2017.

Monsanto started selling its dicamba-tolerant seeds in 2016, and a key claim by the plaintiffs is that selling the seeds before regulatory approval of the new dicamba herbicides encouraged farmers to spray fields with old, highly volatile dicamba formulations. The Bader lawsuit claims: “The cause of such destruction to Plaintiff Bader Farms’ crops is Defendant Monsanto’s willful and negligent release of a defective crop system – namely its genetically modified Roundup Ready 2 Xtend soybeans and Bollgard II Xtend cotton seeds (“Xtend crops”) – without an accompanying, EPA-approved dicamba herbicide.”

Farmers claim that the companies knew and expected that the new seeds would spur such widespread use of dicamba that drift would damage the fields of farmers who did not buy the genetically engineered dicamba-tolerant seeds. The farmers allege this was part of a scheme to expand sales of the genetically engineered dicamba-tolerant seeds. Many allege the new dicamba formulations sold by the companies also drift and cause crop damage just as the old versions have done.

For more information about dicamba, please see our dicamba fact sheet.

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?