Bayer Makes Bid for “Trust” Amid Third Monsanto Cancer Trial

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Bayer AG, which bought Monsanto last summer, said Monday that it was making scientific studies available for public scrutiny in an effort to counter growing concerns about the safety of Monsanto’s flagship glyphosate-based herbicide products.

“Transparency is a catalyst for trust, so more transparency is a good thing for consumers, policymakers and businesses, Liam Condon, president of Bayer’s crop science division, said in a statement. Safety, he said, is the company’s top priority.

The comments come as pressure is mounting on Bayer management as roughly 11,000 people are suing Monsanto alleging glyphosate-based herbicides such as Roundup cause non-Hodgkin lymphoma, and Monsanto has hidden the risks and manipulated the scientific record. The first Roundup cancer trial resulted in a jury verdict of $289 million in damages against Monsanto, though a judge later lowered that to $78 million. The second such trial ended last month with a jury verdict of $80.2 million against Monsanto. The third trial is now underway.

Last week U.S. District Judge Vince Chhabria told Bayer attorneys and plaintiffs’ attorneys that he would like the parties to enter into mediation to discuss a possible settlement. He vacated a fourth trial set to begin in May.

Monsanto and Bayer deny the allegations and say the weight of science supports the safety of glyphosate herbicides. They also deny claims that company scientists ghost-wrote seemingly independent scientific papers and otherwise manipulated the scientific record.

“By making our detailed scientific safety data available, we encourage anyone interested to see for themselves how comprehensive our approach to safety is. We embrace the opportunity to engage in dialogue so we can build more trust in sound science,” said Condon.

The company said it was providing access to 107 Bayer-owned glyphosate safety study reports that were submitted to the European Food Safety Authority as part of the substance authorization process in the European Union. The studies are accessible on Bayer’s transparency platform.

The news from Bayer comes ahead of an April 26 shareholders meeting in which some investors are calling for the head of Bayer CEO Werner Baumann for leading the company into the Monsanto acquisition. Monsanto’s top management walked away with millions of dollars in exit packages just before the first Roundup cancer trial, leaving Bayer holding the bag for the litigation losses and the bad publicity. Since last summer, the company has seen an exodus of customers as retailers, cities, school districts and others say they are backing away from the Monsanto herbicides.

As Bayer focuses on its messaging outside the court room, epidemiologist Beate Ritz, professor at the University of California Los Angeles School of Public Health, is due to take the stand today in Pilliod v. Monsanto,  the third Roundup cancer trial. Ritz has testified in the two prior trials that her analysis of several scientific studies shows that  there is a “credible link” between glyphosate-based herbicides such as Monsanto’s Roundup and non-Hodgkin’s lymphoma.

The current case was brought by Alva and Alberta Pilliod, a married couple who both have non-Hodgkin lymphoma they allege is due to years of Roundup use.

Following Ritz will be testimony from Dennis Weisenburger, a pathologist specializing in studying the causes of non-Hodgkin lymphoma. Weisenburger testified in the Edwin Hardeman v. Monsanto trial that Roundup is a “substantial cause” of cancer in people who are exposed.

Meanwhile, plaintiffs’ attorneys continue to worry about what they believe to be “geofencing” by Monsanto.   Geofencing is a popular advertising technique that delivers specific messaging/content to anyone within a specific geographic area designated by the company or group paying for the ad. The area can be very small, a mile radius around a specific address, for instance.  Anyone within that designated area using an app on a smart phone – such as a weather app or a game – would then be delivered the ad. Targeted individuals don’t have to be searching for information; it just appears on their smart phone.

Plaintiffs’ attorneys raised the issue in the Hardeman case, and had concerns that Monsanto was pushing messaging to jurors through geofencing in the first Roundup cancer trial, which was brought by groundskeeper Dewayne “Lee” Johnson.

In the Pilliod case, the issue was discussed Thursday in court as the plaintiffs attorneys sought a judicial order to prohibit Monsanto from the tactic, but the judge was skeptical and declined to issue such an order.

Here is part of the exchange. All can be seen in the trial transcript. 

PLAINTIFFS’ ATTORNEY BRENT WISNER:  Your Honor, I think there’s one — and I get your point. I think just to clarify one procedural factual thing. Right? If I were to walk over to a juror personally and say to you, “Hey, Juror Number 3, Monsanto’s stuff causes cancer and all these studies show it,” I mean, that would be a mistrial. Instantaneously. That’s jury tampering. Right? Now if they do that same thing — if I did the same thing by targeting every person’s phone in this courtroom or every single person’s phone in this courthouse and pushing that information, that same message to them on their phone — and what happens is -­  I don’t know if you use your phone for this kind of purposes, but, for example, when I look at my ESPN app and I’m looking at the scores for the UCLA water polo team, or whatever, you know, there’s little ads that pop up.

THE COURT: Sure.

MR. WISNER: And those ads are saying “Federal judge says Roundup is safe.” That’s the kind of stuff
we’re seeing. We saw this happening with quite intensity in the Johnson trial. Numerous jurors during voir dire mentioned that they were having these things pushed on them as soon as they walked in the building. And so whether or not Monsanto is or is not doing that, I think that if they are, that should be
prohibited. That’s not really a point of First Amendment. That is now clearly targeting people that
they know they can’t speak to.

THE COURT: And you’re asking me to assign a subjective intent that I don’t know exists and it’s
still prior restraint. I mean, technology has taken us places probably we never thought it would go… I guess if I were picking sides, I might believe that. But I can’t pick sides.

Verdict Is In – Monsanto Must Pay Cancer Victim $80 Million

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(Transcript of today’s proceedings)

(See exclusive video interview with plaintiff Edwin Hardeman and his attorneys)

The second Roundup cancer trial concluded Wednesday with a unanimous jury verdict that ordered Monsanto to pay roughly $80 million in damages for failing to warn plaintiff Edwin Hardeman of the cancer risks of Roundup herbicide.

The jury verdict included $200,967.10 in past economic loss, and a little more than $5 million in past and future non-economic loss damages. Jurors said Monsanto should pay $75 million in punitive damages for its negligence in failing to warn of the cancer risks of its herbicides despite years of published scientific data highlighting the carcinogenic potential of glyphosate-based herbicides.

Hardeman’s attorneys issued a statement slamming Monsanto for decades of what they said was irresponsible and dangerous conduct. During the month-long trial they presented jurors with not just scientific evidence showing cancer connections to Monsanto’s products, but also evidence of Monsanto strategies aimed at suppressing information about the dangers of its products, including secretly ghost-writing scientific papers that it then used to help convince regulators of product safety.

“As demonstrated throughout trial, since Roundup’s inception over 40 years ago, Monsanto refuses to act responsibly. It is clear from Monsanto’s actions that it does not care whether Roundup causes cancer, focusing instead on manipulating public opinion and undermining anyone who raises genuine and legitimate concerns about Roundup. It speaks volumes that not one Monsanto employee, past or present, came live to trial to defend Roundup’s safety or Monsanto’s actions. Today, the jury resoundingly held Monsanto accountable for its 40 years of corporate malfeasance and sent a message to Monsanto that it needs to change the way it does business.”

Bayer AG, which purchased Monsanto last summer, said it would appeal the verdict. “We are disappointed with the jury’s decision, but this verdict does not change the weight of over four decades of extensive science and the conclusions of regulators worldwide that support the safety of our glyphosate-based herbicides and that they are not carcinogenic. The verdict in this trial has no impact on future cases and trials, as each one has its own factual and legal circumstances. Bayer will appeal this verdict.  The jury in this case deliberated for more than four days before reaching a causation verdict in phase one, an indication that it was very likely divided over the scientific evidence.”

Cancer Victim Headed Back to the Stand

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(Transcript of today’s proceedings)

Plaintiff Edwin Hardeman took the stand today to offer more testimony in his lawsuit against Monsanto over claims his use of the company’s Roundup herbicide caused him to develop non-Hodgkin lymphoma.

Hardeman already testified in the first phase of the trial, which drew a unanimous jury verdict finding that Roundup was to blame for his cancer. His testimony today addressed the question of Monsanto’s liability and if the company should pay damages for the loss of his health.

Hardman’s attorneys are trying to convince jurors that Monsanto knew of the dangers of its products but actively worked to suppress that information through a variety of tactics, including pressuring regulators, ghostwriting scientific literature, and misleading consumers such as Hardeman with heavy marketing about the safety of glyphosate-based herbicides.

In the first phase of the trial, Judge Vince Chhabria sharply limited testimony about Hardeman’s medical treatments and the suffering he endured. In this phase, such testimony is allowed.

Jurors also heard from Mary Hardeman, Edwin’s wife, on Friday. In the first phase, which dealt only with evidence pertaining to whether or not Roundup caused Mr. Hardeman’s cancer,  the judge rebuked Hardeman’s attorney Aimee Wagstaff for even trying to introduce Mary Hardeman to jurors and for describing the couple’s courtship and long marriage.

Also taking the stand was plaintiff’s expert witness Chadi Nabhan,  chief medical officer for Cardinal Health in Chicago.

The first witness Friday was Monsanto toxicologist Donna Farmer, whose testimony was  presented via video. Hardeman’s attorneys started her testimony on Wednesday. There was no court held Thursday.

Next week, Hardeman’s attorneys plan to play video testimony of former Monsanto Chairman and CEO Hugh Grant.

New Year Off to a Strong Start for Monsanto

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The new year is off to a strong start for Monsanto as the Bayer unit heads into its second trial over allegations that its Roundup and other glyphosate-based herbicides cause cancer. In Jan. 3 ruling, U.S. District Judge Vince Chhabria rejected arguments by attorneys representing cancer victims and sided with Monsanto in deciding to block jurors from hearing a large portion of evidence that plaintiffs say shows efforts by Monsanto to manipulate and influence regulators in a first phase of the trial. In deciding to bifurcate the trial, Chhabria said that jurors will only hear such evidence if they first agree that Monsanto’s weed killer did significantly contribute to causing the plaintiff’s non-Hodgkin lymphoma (NHL).

“A significant portion of the plaintiffs’ case involves attacks on Monsanto for attempting to influence regulatory agencies and manipulate public opinion regarding glyphosate. These issues are relevant to punitive damages and some liability questions. But when it comes to whether glyphosate caused a plaintiff’s NHL, these issues are mostly a distraction, and a significant one at that,” the judge’s order states.

He did provide a caveat, writing, “if the plaintiffs have evidence that Monsanto manipulated the outcome of scientific studies, as opposed to agency decisions or public opinion regarding those studies, that evidence may well be admissible at the causation phase.”

Jury selection is set to begin Feb. 20 with the trial set to get underway on Feb. 25 in San Francisco. The case is Edwin Hardeman v. Monsanto.

Meanwhile, plaintiff Lee Johnson,who was the first cancer victim to take Monsanto to trial, winning a unanimous jury verdict against the company in August, has also won his request to the 1st District Court of Appeals for speedy handling of Monsanto’s appeal of that jury award. Monsanto opposed Johnson’s request for “calendar preference,” but the court granted the request on Dec. 27, giving Monsanto 60 days to file its opening brief.