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.

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

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

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

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

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

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

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

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

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

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

A Matter of Fact – Professor Refuses to Correct Errors in New Scientific Paper Finding Problems with Glyphosate

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(UPDATED June 5 with comment from Scientific Reports)

The authors of a newly published paper examining the impacts of exposure to the world’s most widely used herbicide declared some shocking news.

The team from Washington State University found that descendants of rats exposed to the chemical glyphosate developed prostate, kidney and ovarian diseases, obesity and birth abnormalities. The findings, published in April in the scientific journal Scientific Reports, added to the global debate about the safety of glyphosate and Monsanto’s Roundup and other glyphosate-based weed killers.

But perhaps more stunning than that news, the research team also stated in their paper that the International Agency for Research on Cancer (IARC), a specialist scientific arm of the World Health Organization, had “retracted” its finding that glyphosate was a probable human carcinogen.

The error is one of many in the paper reported to the authors over a month ago that has yet to be corrected. But none, perhaps, is more glaring than the one about IARC.

IARC had issued a lengthy paper in 2015 that concluded by classifying glyphosate as a 2A human carcinogen. That IARC classification sparked thousands of lawsuits against Monsanto, the longtime purveyor of Roundup and other glyphosate herbicides and fueled debate around the globe. The IARC classification also helped prompt many European countries to start moving to limit or ban glyphosate use. Cities, school districts and retailers across the United States have also stopped using or selling glyphosate products. Monsanto’s German owner Bayer AG has lost 40 percent of its shareholder value due to the persistent concerns about Monsanto’s glyphosate herbicides.

But according to the WSU team, the IARC classification that triggered it all was retracted in 2016. They wrote:

“In March 2015 the International Agency of Research on Cancer classified glyphosate as a Grade 2a carcinogen based on prevalence of liver and kidney tumors in chronic feeding studies. Shortly after, this statement was retracted in 2016.”

A retraction by IARC of its finding would be highly significant. Indeed, Monsanto in 2015 did seek a retraction but IARC has defended its work, as have numerous independent scientists from multiple countries. And notably, IARC has never retracted its finding of glyphosate as a 2A probable carcinogen.

“The classification has not been changed and is still valid,” said IARC spokeswoman Veronique Terrasse.

The Washington State research team was led by Michael Skinner, professor of the WSU School of Biological Sciences. Seemingly the error would be easy to correct. But when contacted about the error, Skinner said he had no intention of correcting the statement because no correction was needed. He said that he has told scientists who have raised the issue with him to write a letter to the editor of the journal.

“The Definition of Retract includes to “Draw or be drawn back or back in” or “withdraw or go back” or “reconsider or drawn back”, so this is why the word was used in this context,” Skinner said in an emailed response.

Scientific Reports is part of Nature, a weekly international journal that bills itself as “publishing the finest peer-reviewed research in all fields of science and technology…”

A spokesperson for Scientific Reports, said: “When any issues are raised with Scientific Reports about papers we have published, we investigate them carefully and we will take action where appropriate.”

He pointed out that Scientific Reports is an online, open-access journal in the “Nature Research family of journals” but is editorially independent of Nature.

Several outside scientists have identified other factual errors in the paper, and said they threaten to undermine the credibility of the findings overall.

“This is supposed to be picked up by the peer review,” said Chuck Benbrook, an agricultural economist and glyphosate expert whose own scientific research was cited incorrectly by the Skinner team in their paper. Benbrook contacted Skinner in April immediately after the paper was published laying out several errors that need correcting. Benbrook noted that all of the problems he is aware of were in the introduction to the paper and had nothing to do with the scientific conclusions.

“Why he didn’t quickly correct the factual errors… is hard to understand,” said Benbrook.

Among the other factual errors:

*The paper stated that glyphosate accounts for nearly 72 percent of global pesticide usage, citing Benbrook’s research. Benbrook’s research does not say that, but says that 72 percent of glyphosate sprayed globally has been applied in the last decade.

* The Skinner paper states that IARC’s classification of glyphosate was based on the prevalence of liver and kidney tumors in chronic feeding studies. In fact, the IARC classification, as detailed in IARC’s paper, states the classification was based on data from animal studies, epidemiology studies, and “strong evidence” of genotoxic mechanisms of action.

* As well, the paper cited in a footnote a paper that contradicted IARC’s finding of glyphosate as a probable carcinogen that was exposed nearly two years ago as the ghost-written work of Monsanto scientists. Skinner’s paper did not note that this paper, titled  “Genotoxicity Expert Panel review: weight of evidence evaluation of the genotoxicity of glyphosate, glyphosate-based formulations, and aminomethylphosphonic acid,” was so problematic for its lack of disclosure of Monsanto’s involvement that the journal that published it – Critical Reviews in Toxicology – issued an “expression of concern” and a correction statement.

Skinner’s research was supported by a grant from the John Templeton Foundation. He and his colleagues exposed pregnant rats to glyphosate between their eighth and 14th days of gestation. The dose, which they said was half the amount expected to show no adverse effect, produced no apparent ill effects on either the parents or the first generation of offspring. But the researchers saw dramatic increases in “several pathologies affecting the second and third generations,” according to a press release promoting the study.

The study has garnered quite a bit of attention. Several news outlets have reported on the study, quoting Skinner. Bayer AG, the German company that bought Monsanto last year, has said Skinner’s study is not credible. But Skinner has defended the accuracy of the study, citing the fact it was peer-reviewed and published in an accredited scientific journal.

(Article first appeared on EcoWatch.)

Carey Gillam is a journalist and author, and a public interest researcher for US Right to Know, a not-for-profit food industry research group. Follow her on Twitter at @careygillam.

Up Next – Trial In Monsanto’s Hometown Set for August After $2 Billion Roundup Cancer Verdict

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After three stunning courtroom losses in California, the legal battle over the safety of Monsanto’s top-selling Roundup herbicide is headed for the company’s hometown, where corporate officials can be forced to appear on the witness stand, and legal precedence shows a history of anti-corporate judgments.

Sharlean Gordon, an cancer-stricken woman in her 50s, is the next plaintiff currently set for trial.  Gordon v. Monsanto starts Aug. 19 in St. Louis County Circuit Court, located just a few miles from the St. Louis, Missouri-area campus that was the company’s longtime world headquarters until Bayer bought Monsanto last June. The case was filed in July 2017 on behalf of more than 75 plaintiffs and Gordon is the first of that group to go to trial.

According to the complaint, Gordon purchased and used Roundup for at least 15 continuous years through approximately 2017 and was diagnosed with a form of non-Hodgkin lymphoma in 2006. Gordon has gone through two stem cell transplants and spent a year in a nursing home at one point in her treatment. She is so debilitated that it is difficult for her to be mobile.

Her case, like that of the thousands of others filed around the United States, alleges use of Monsanto’s glyphosate-based herbicides caused her to develop non-Hodgkin lymphoma.

“She’s been through hell,” said St. Louis attorney Eric Holland, one of the legal team members representing Gordon.  “She’s horribly injured. The human toll here is tremendous. I think Sharlean is really going to put a face on what Monsanto’s done to people.”

Gordon said the hardest part about preparing for trial is determining what evidence to present to the jury within the three-week time span that the judge has set for the trial.

“This evidence against them, their conduct, is the most outrageous I’ve seen in my 30 years of doing this,” Holland said.  “The things that have gone on here, I want St. Louis juries to hear this stuff.”

That Gordon trial will be followed by a September 9 trial also in St. Louis County in a case brought by plaintiffs Maurice Cohen and Burrell Lamb.

Monsanto’s deep roots in the community, including a large employment base and generous charitable donations throughout the area, could favor its chances with local jurors. But on the flip side, St. Louis is regarded in legal circles as one the most favorable places for plaintiffs to bring lawsuits against corporations and there is a long history of large verdicts against major companies. St. Louis City Court is generally considered the most favorable but St. Louis County is also desired by plaintiffs’ attorneys.

The approach of the August and September trials comes on the heels of a stunning $2 billion verdict issued against Monsanto May 13.  In that case, a jury in Oakland, California awarded married couple Alva and Alberta Pilliod, who both suffer from cancer, $55 million in compensatory damages and $1 billion each in punitive damages. The jury found that Monsanto has spent years covering up evidence that its herbicide causes cancer.

That verdict came only a little more than a month after a San Francisco jury ordered Monsanto to pay $80 million in damages to Edwin Hardeman, who also developed non-Hodgkin lymphoma after using Roundup.  And last summer, a jury ordered Monsanto to pay $289 million to groundskeeper Dewayne “Lee” Johnson who received a terminal cancer diagnosis after using Monsanto herbicides in his job.

Aimee Wagstaff, who was co-lead counsel for Hardeman, is set to try the Gordon case in St. Louis with Holland. Wagstaff said she plans to subpoena several Monsanto scientists to appear on the witness stand to answer questions directly in front of a jury. She and the other attorneys trying the California cases were not able to force Monsanto employees to testify live because of the distance.

MEDIATION MEETING MAY 22

The trial losses have left Monsanto and its German owner Bayer AG under siege. Angry investors have pushed share prices to the lowest levels in roughly seven years,  erasing more than 40 percent of Bayer’s market value. And some investors are calling for Bayer CEO Werner Baumann to be ousted for championing the Monsanto acquisition, which closed in June of last year just as the first trial was getting underway.

Bayer maintains that there is no valid evidence of cancer causation associated with Monsanto’s herbicides, and says it believes it will win on appeal.  But U.S. District Judge Vince Chhabria has ordered Bayer to begin mediation talks aimed at potentially settling the sprawling mass of lawsuits that includes roughly 13,400 plaintiffs in the United States alone. All the plaintiffs are cancer victims or their family members and all allege Monsanto engaged in a range of deceptive tactics to hide the risks of its herbicides, including manipulating the scientific record with ghostwritten studies, colluding with regulators, and using outside individuals and organizations to promote the safety of its products while making sure they falsely appeared to be acting independently of the company.

A May 22 hearing is being held in part to define details of the mediation process. Bayer has indicated that it will comply with the order, but may not yet be ready to consider settling the litigation despite the courtroom losses.

Meanwhile, the litigation that originated in the United States has crossed the border into Canada where a Saskatchewan farmer is leading a class action lawsuit against Bayer and Monsanto making allegations that mirror those in the U.S. lawsuits.

“THE QUEEN OF ROUNDUP”

Elaine Stevick of Petaluma, California was supposed to be the next in line to take on Monsanto at trial. But in his order of mediation, Judge Chhabria also vacated her May 20 trial date. A new trial date is to be discussed at the hearing on Wednesday.

Stevick and her husband Christopher Stevick sued Monsanto in April of 2016 and said in an interview that they are eager to get their chance to confront the company over the devastating damage they say Elaine’s use of Roundup has done to her health. She was diagnosed in December 2014 at the age of 63 with multiple brain tumors due to a type of non-Hodgkin lymphoma called central nervous system lymphoma (CNSL).  Alberta Pilliod, who just won the most recent trial, also had a CNSL brain tumor.

The couple purchased an old Victorian home and overgrown property in 1990 and while Christopher worked on renovating the interior of the house, Elaine’s job was to spray weed killer over the weeds and wild onions that the couple said took over a good portion of the property. She sprayed multiple times a year until she was diagnosed with cancer. She never wore gloves or other protective clothing because believed it to be as safe as advertised, she said.

Stevick is currently in remission but nearly died at one point in her treatment, Christopher Stevick said.

“I called her the ‘queen of Roundup’ because she was always walking around spraying the stuff,” he said.

The couple attended parts of both the Pilliod and Hardeman trials, and said they are grateful the truth about Monsanto’s actions to hide the risks are coming into the public spotlight. And they want to see Bayer and Monsanto start warning users about the cancer risks of Roundup and other glyphosate-based herbicides.

“We want the companies to take responsibility for warning people -even if there is a chance that something would be harmful or hazardous for them, people should be warned,” Elaine Stevick said.

(Published first in Environmental Health News)

Follow @Careygillam on Twitter