U.S. Supreme Court sets date to consider review of Monsanto Roundup case

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Bayer AG’s effort to get the U.S. Supreme Court to review a key trial loss in the nationwide Roundup litigation inched forward this week when the high court said it would include Bayer’s petition for a writ of certiorari in a December 10 conference where the justices will discuss which cases to accept for review.

Bayer, which bought Monsanto in 2018, filed the petition in August, asking the court to review the Ninth Circuit Court of Appeals’ decision that affirmed the district court’s judgment in Monsanto’s 2019 trial loss to plaintiff Edwin Hardeman. The jury in the case found that exposure to Monsanto’s glyphosate-based herbicide was a cause of Hardeman’s non-Hodgkin lymphoma (NHL).

Hardeman’s attorneys 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. Hardeman’s attorneys argued that instead of hiding information, Monsanto should have warned consumers about the risks that its products could cause cancer.

Two key issues

Bayer maintains Monsanto’s glyphosate herbicides do not cause cancer, and it additionally argues that  the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), which governs the registration, distribution, sale, and use of pesticides in the United States, preempts “failure-to-warn” claims by Hardeman and other plaintiffs in the Roundup litigation. Because the Environmental Protection Agency (EPA) has approved labels with no cancer warning, failure-to-warn claims should be barred, the company maintains.

In addition to the FIFRA issue, the company petition filed in August urged the Supreme Court to also address whether or not the Ninth Circuit’s standard for admitting expert testimony “is inconsistent with this Court’s precedent and Federal Rule of Evidence 702.” Bayer argues that the admission of expert testimony in the Hardeman case “departed from federal standards, enabling plaintiff’s causation witnesses to provide unsupported testimony on the principal issue in the case, Roundup’s safety profile.”

In response to Bayer’s petition that the Supreme Court review the case, Hardeman’s attorneys filed a reply brief arguing the company’s request “is unworthy of review,” mischaracterizes elements of the case, and the company’s petition should be denied.

No certainty

There is no certainty the Supreme Court will agree to take up the case; nor a certainty that there will even be much discussion of the case, but if the court does decide to grant the company’s request, it would shine a national spotlight on the product liability litigation that has seen more than 100,000 plaintiffs sue over allegations Roundup herbicide causes cancer.

A favorable Supreme Court decision is widely seen as Bayer’s best hope for putting an end to the Roundup litigation, which has attracted tens of thousands of plaintiffs, all alleging they developed NHL due to exposure to Monsanto’s herbicides.

Several organizations have joined in the request for Supreme Court review of the Hardeman decision, including the industry lobbying group CropLife America, The Chamber of Commerce of the United States of America; Pharmaceutical Research and Manufacturers of America; the American Tort Reform Association; the Product Liability Advisory Council; the Washington Legal Foundation; and Lawyers for Civil Justice.

The Supreme Court typically takes fewer than 200 cases out of thousands of case review requests each year, and favors accepting cases that have national significance, or deal with conflicting decisions in lower courts and those that are seen as setting an important precedent.

PFAS: Health Concerns and Efforts to Regulate “Forever Chemicals”

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Per- and Polyfluoroalkyl Substances (PFAS) are a group of thousands of manufactured chemicals widely used by a range of industries and commonly found in a large number of household products. One common characteristic of PFAS is that they persist in the environment and can accumulate in humans and animals. For this reason, they are often referred to as “forever chemicals.”

Some PFAS have been linked to cancer, birth defects, liver disease, thyroid disease, decreased immunity, hormone disruption and a range of other serious health problems. 

The U.S. Centers for Disease Control and Prevention (CDC) says that most people in the United States have been exposed to some PFAS. The chemicals  have been documented in the blood of people and animals around the world, and also have been found to be pervasive in the environment, particularly in areas where manufacturers or other industrial users are actively handling PFAS. 

In response to a Freedom of Information Act request, the U.S. Environmental Protection Agency (EPA) in 2021 released a spreadsheet of more than 120,000 facilities around the United States the regulatory agency fears are handling PFAS. Download that spreadsheet here. 

Researchers have identified the following routes of exposure to PFAS:

  • Drinking water – in public drinking water systems and private drinking water wells.
  • Soil and water at or near waste sites – at landfills, disposal sites, and hazardous waste sites.
  • Fire extinguishing foam – used in training and emergency response events at airports, shipyards, military bases, firefighting training facilities, chemical plants, and refineries.
  • Manufacturing or chemical production facilities that produce or use PFAS – such as oil and gas drilling sites, chrome plating, electronics, and certain textile and paper manufacturers.
  • Food – such as fish caught from water contaminated by PFAS and dairy products from livestock exposed to PFAS, and other foods.
  • Food packaging – such as grease-resistant paper, fast food containers/wrappers, microwave popcorn bags, pizza boxes, and candy wrappers.
  • Household products- such as stain and water-repellent used on carpets, upholstery, clothing, and other fabrics; cleaning products; non-stick cookware; paints, varnishes, and sealants.
  • Personal care products- such as shampoos, dental floss, and cosmetics.

Long history of warnings about health risks of PFAS  

Environmental and human health experts and advocates have long been critical of the EPA for a lack of research into, and regulation of, PFAS. Researchers, lawyers and environmental and human health advocates have warned about the dangers of PFAS for roughly 20 years, and evidence has come to light showing that companies involved in manufacturing PFAS have known about dangers to human health even longer. 

Research has demonstrated that two types of PFAS – Perfluorooctanoic Acid (PFOA) and Perfluorooctane Sulfonate (PFOS), are very harmful to humans and animals. In 2016, the National Toxicology Program (NTP) concluded that PFOA and PFOS were a specific hazard to immune system function in humans. U.S. manufacturers have been replacing those types of PFAS with other types, though concerns persist about the replacements.  

On Nov. 16, 2021, the EPA said it was sending four “draft documents” to its Scientific Advisory Board that contain new data and analyses. The new information indicates that “negative health effects may occur at much lower levels of exposure to PFOA and PFOS than previously understood and that PFOA is a likely carcinogen,” according to the EPA.

PFOA, also known as C8, was a key ingredient in non-stick Teflon products. C8 was originally manufactured by 3M and then by DuPont until the health hazards of the chemical were made public through a class-action lawsuit. A replacement chemical called GenX was introduced by DuPont in 2009 as a safer alternative to PFOA, but an investigation by The Intercept found that DuPont filed 16 reports with the EPA citing numerous harmful health effects of the chemical on animals, sparking concerns about the safety of the substitute.  

A C8 science panel was formed as part of the settlement of a class-action lawsuit approved in February 2005 by West Virginia Circuit Court. That case involved allegations that human health problems were caused by releases of C8 from a DuPont facility in West Virginia.

The science panel was charged with conducting a community study to help evaluate potential links between C8 exposure and any human disease. The research findings are detailed here.

The litigation and settlement were largely the work of U.S. lawyer Robert Bilott.

Bilott has spent the last two decades advocating for strict PFAS regulation and corporate accountability for PFAS pollution. His investigation into PFAS, including the corporate efforts to cover up the harms of the chemicals, have been documented in a book, a feature film and a documentary film, among other works.

In 2018, the U.S. Centers for Disease Control and Prevention (CDC) published a 852-page review of PFAS health dangers, challenging the EPA’s determination of what the regulator considered safe levels for some of the compounds, finding that exposures could be a threat at many times lower than what the EPA had established.  

In October 2021, the EPA released what it described as a “strategic roadmap” aimed at restricting PFAS from being released into the environment. The plan also is supposed to accelerate the cleanup of existing PFAS contamination. The EPA said highlights of its plan include:

  • “Aggressive” timelines to set enforceable drinking water limits under the Safe Drinking Water Act “to ensure water is safe to drink in every community”.
  • Timelines for actions involved in the establishment of “effluent guideline limitations”, for nine industrial categories.
  • Establishment of a hazardous substance designation under the federal Superfund law that enhances the government’s ability to hold PFAS polluters financially accountable.
  • A review of past actions on PFAS taken under the Toxic Substances Control Act (TSCA) to address those that are insufficient. 
  • Increased monitoring, data collection and research so that the agency can identify what actions are needed and when to take them.
  • A final toxicity assessment for a type of PFAS called GenX used in manufacturing nonstick coatings that has been found in drinking water, rainwater and air samples.
  • Continued efforts to address PFAS emissions into the air.

The agency said it will also be increasing investments in research related to PFAS. U.S. President Joe Biden has called for more than $10 billion in funding to “monitor and remediate PFAS in drinking water” among other water system. 

The EPA has also been pursuing research into “PFAS destruction technology” and other possible mitigation measures amid mounting evidence of the pervasiveness of the PFAS compounds.

Politics

In November 2021 Michigan Democratic congresswoman Debbie Dingell introduced a bill in the U.S. House of Representatives proposing to ban PFAS in US food packaging and significantly reduce exposure to the highly toxic compounds. Similar legislation introduced in the last legislative session failed to pass.

PFAS manufacturers have actively lobbied against such laws on the chemicals. U.S. Sen. Jim Inhofe, who sits on the environmental committee and has opposed PFAS legislation, has received at least $60,000 from PFAS producers, according to The Guardian. 

State actions 

Many states have moved to investigate the extent of PFAS contamination, protect residents from PFAS exposures and to hold companies accountable for PFAS pollution. Here are a few recent actions:

Alabama – PFAS manufacturer 3M agreed to pay local government agencies in Alabama $98.4 million in October 2021 in a deal reached through court-ordered mediation over claims that one of the company’s chemical plants polluted the Tennessee River in northern Alabama. The money is to be used to fund cleanup efforts and reimburse water agencies prior efforts to remediate PFAS from the drinking water.  3M also agreed to pay $12 million to settle a potential class action lawsuit by Alabama drinking water customers. 

California – In October 2021, the state enacted new laws that prohibit the use of PFAS in children’s products; ban the sale or distribution of any food packaging that contains PFAS after Jan. 1, 2023; and order that by Jan.1, 2024, labels on cookware must list any PFAS in the product and provide a link or QR code to a webpage that contains more details.

Maine – Maine environmental regulators said in October 2021 that they were launching a statewide investigation to identify PFAS contamination sites related to the state’s municipal sludge and paper mills. State lawmakers have earmarked $30 million to test for PFAS and to install filtration systems on contaminated water systems. The state also said it will assist farmers whose land or water is found to have unsafe levels of PFAS. 

Michigan – In October 2021, Michigan Governor Gretchen Whitmer signed an executive directive telling the state to “use its purchasing power—an estimated $2.5 billion annually” to buy products that do not contain PFAS chemicals. 

New Hampshire – The New Hampshire Department of Natural Resources said in November 2021 that PFAS contamination was so high in five of its lakes that people should limit fish consumption, particularly children.  

North Carolina – In November 2021, North Carolina’s attorney general filed lawsuits against 14 manufacturers of a fire suppressant made with PFAS, asking the court to require the manufacturers to pay for investigations to determine the extent of the pollution damage and clean up the damage, replace water treatment systems and wells, and restore damaged natural resources, and monitor water quality going forward. The lawsuits focus on PFAS contamination at Charlotte-Douglas International Airport and at an Air National Guard Base.

Oregon – Oregon said in October 2021 it would test about 150 drinking water systems across the state to determine levels of PFAS contamination.  

Pennsylvania- Pennsylvania regulators in November 2021 said they would set enforceable limits on toxic “forever chemicals” in drinking water. Specifically, Pennsylvania officials said they plan to set drinking water limits on the two best-studied of the chemicals, known as PFOA and PFOS.

News & Opinion

Two ‘forever chemicals’ more toxic than previously thought: EPA drafts, by Rachel Frazen, The Hill, Nov. 16, 2021.

North Carolina AG sues 14 companies over fire suppressant, Associated Press, Nov. 5, 2021. “Attorney General Josh Stein filed four lawsuits which named 3M, Corteva, and DuPont, among others. In the lawsuit, Stein is asking the court to require the manufacturers to pay for investigations to determine the extent of the damage, clean up the damage, replace water treatment systems and wells, restore damaged natural resources and to monitor water quality.”

Senator, clean water advocates ask for state action after troubling GenX toxicity report, by Johanna Still, Port City Daily, Oct. 31, 2021. “Chemours’ trademark unregulated chemical GenX is more toxic than previously understood, according to a final toxicity report released by the Environmental Protection Agency Monday. The EPA’s new lifetime chronic reference dose for GenX, calculated with the most vulnerable populations in mind, is 3 parts per trillion (ppt). Concentrations of the chemical ingested over a lifetime at or below this threshold are unlikely to lead to negative health effects in humans, the report concludes.”

Forever chemicals widespread in Mass. Surface and ground water, says new report, by Barbara Moran, WBUR, Oct. 29, 2021. “The new analysis of state data follows reports of PFAS contamination in Cape Cod ponds and many Massachusetts rivers, pointing to widespread contamination throughout state lakes, ponds, rivers and aquifers used as sources for drinking water.”

EPA finds chemical contaminating NC river more toxic than previously assessed, by Rachel Frazin, The Hill, Oct. 25, 2021.

Lethal ‘forever chemical’ taint our food, water and even blood. The EPA is stalling, by David Bond, The Guardian, Oct. 24, 2021. “There is no longer any population or place on earth untouched by PFAS contamination. We are living through a toxic experiment with no control group.”

How chemical companies avoid paying for pollution, by David Gelles and Emily Steel, The New York Times, Oct. 20, 2021. “To avoid responsibility for what many experts believe is a public health crisis, leading chemical companies like Chemours, DuPont and 3M have deployed a potent mix of tactics. They have used public charm offensives to persuade regulators and lawmakers to back off. They have engineered complex corporate transactions to shield themselves from legal liability. And they have rolled out a conveyor belt of scantly tested substitute chemicals that sometimes turn out to be just as dangerous as their predecessors.”

Bad Chemistry series of articles by Sharon Lerner, The Intercept, September 2015-ongoing. “The U.S. has refused to regulate the chemicals in this class, known as PFAS, despite the fact that they persist indefinitely in the environment and have been linked to cancer and many other illnesses.” 

EPA unveils new strategy to address US contamination of ‘forever’ chemicals, by Carey Gillam, The Guardian, Oct. 18, 2021. “The US Environmental Protection Agency (EPA) on Monday announced a “strategic roadmap” it said would help restrict a class of toxic chemicals from being released into the environment and accelerate the cleanup of existing contamination of “forever chemicals” that are associated with a range of human health dangers.”

Revealed: More than 120,000 US sites feared to handle harmful PFAS ‘forever’ chemicals, by Carey Gillam, The Guardian, Oct. 17, 2021 “The US Environmental Protection Agency (EPA) has identified more than 120,000 locations around the US where people may be exposed to a class of toxic “forever chemicals” associated with various cancers and other health problems that is a frightening tally four times larger than previously reported, according to data obtained by the Guardian.”

Suppressed Study: The EPA underestimated dangers of widespread chemicals, by Abrahm Lustgarten, ProPublica, , June 20, 2018. “A major environmental health study that had been suppressed by the Trump administration because of the “public relations nightmare” it might cause the Pentagon and other polluters has been quietly released online.”

The lawyer who became DuPont’s worst nightmare, by Nathaniel Rich, The New York Times, Jan. 6, 2016. “Rob Bilott was a corporate defense attorney for eight years. Then he took on an environmental suit that would upend his entire career — and expose a brazen, decades-long history of chemical pollution.”

The Teflon toxin, three-part series of articles by Sharon Lerner, The Intercept, Aug. 11, 2015 – Aug. 20, 2015. “In this series, Sharon Lerner exposes DuPont’s multi-decade cover-up of the severe harms to health associated with a chemical known as PFOA, or C8, and associated compounds such as PFOS and GenX.”

The Teflon toxin goes to court, by Sharon Lerner, The Intercept, Sept. 19, 2015. “DuPont went to court this week, defending its use of C8, the chemical that spread from the company’s Parkersburg, West Virginia, plant into the drinking water of some 80,000 people in West Virginia and Ohio. A jury in Columbus, Ohio, is now hearing the case of Carla Bartlett, a 59-year-old woman who developed kidney cancer after drinking C8-contaminated water for more than a decade.” 

Papers: DuPont hid chemical risk studies, by John Heilprin, Associated Press, Nov. 16, 2005. “DuPont Co. hid studies showing the risks of a Teflon-related chemical used to line candy wrappers, pizza boxes, microwave popcorn bags and hundreds of other food containers, according to internal company documents and a former employee.”

Statements

Zürich Statement on Future Actions on Per- and Polyfluoroalkyl Substances (PFASs), Environmental Health Perspectives, August 2018. 

Comment on “Fluorotechnology Is Critical to Modern Life: The FluoroCouncil Counterpoint to the Madrid Statement,” Environmental Health Perspectives July 2015. 

The Madrid Statement on Poly- and Perfluoroalkyl Substances (PFASs), Environmental Health Perspectives, May 2015. 

Helsingør statement on poly- and perfluorinated alkyl substances (PFASs), Chemosphere, November 2014. 

Research 

Birth Defects 

Perfluorooctanoate Exposure and Major Birth Defects, Reproductive Toxicology, August 2014.  

Cancer

Per- and Polyfluoroalkyl Substance Exposure Combined with High-Fat Diet Supports Prostate Cancer Progression, Nutrients, September, 2021.

Perfluorooctanoic Acid (PFOA) Exposures and Incident Cancers Among Adults Living Near a Chemical Plant, Environmental Health Perspectives, November 2013.  

Perfluorooctanoic acid exposure and cancer outcomes in a contaminated community: a geographic analysis, Environmental Health Perspectives, March 2013  

Cholesterol 

Modeled PFOA exposure and coronary artery disease, hypertension, and high cholesterol in community and worker cohorts, Environmental Health Perspectives, December 2014.  

Associations between PFOA, PFOS and changes in the expression of genes involved in cholesterol metabolism in humans, Environment International, July 2013. 

Diabetes

Incidence of type II diabetes in a cohort with substantial exposure to perfluorooctanoic acid, Environmental Research, January 2014. 

Hormones 

Perfluoroalkyl Substances, Sex Hormones, and Insulin-like Growth Factor-1 at 6-9 Years of   Age: A Cross-Sectional Analysis within the C8 Health Project. Environmental Health     Perspectives, August 2016.

PFOA and PFOS are associated with reduced expression of the parathyroid hormone 2 receptor (PTH2R) gene in women, Chemosphere, February 2015. 

Hyperactivity

Serum Perfluorinated Compound Concentration and Attention Deficit/Hyperactivity Disorder in Children 5-18 Years of Age, Environmental Health Perspectives, October 2011.  

Inflammatory bowel disease

Inflammatory bowel disease and biomarkers of gut inflammation and permeability in a community with high exposure to perfluoroalkyl substances through drinking water, Environmental Research, 2019 November 2019. 

Kidney Function

Perfluorooctanoic acid and chronic kidney disease: Longitudinal analysis of a Mid-Ohio Valley community, Environmental Research, April 2016. 

Exposure to perfluoroalkyl acids and markers of kidney function among children and adolescents living near a chemical plant, Environmental Health Perspectives, May 2013.

Liver Function

Modeled Perfluorooctanoic Acid (PFOA) Exposure and Liver Function in a Mid-Ohio Valley Community, Environmental Health Perspectives, August 2016. 

Neuropsychological Outcomes

Perfluorooctanoate and neuropsychological outcomes in children, Epidemiology, July 2013.

Obesity

Early life perfluorooctanoic acid (PFOA) exposure and overweight and obesity risk in adulthood in a community with elevated exposure, Environmental Research, July 2014. 

Pregnancy

Impact of exposure uncertainty on the association between perfluorooctanoate and preeclampsia in the C8 Health Project population, Environmental Health Perspectives, January 2016.

Perfluorooctanoic Acid exposure and pregnancy outcome in a highly exposed community, Epidemiology, May 2012.  

Relationship of Perfluorooctanoic Acid Exposure to Pregnancy Outcome Based on Birth Records in the Mid-Ohio Valley, Environmental Health Perspectives, March 2012.  

Serum Perfluorooctanoic Acid and Perfluorooctane Sulfonate Concentrations in Relation to Birth Outcomes in the Mid-Ohio Valley, 2005-2010, Environmental Health Perspectives, October 2013 

PFOA and PFOS serum levels and miscarriage risk, Epidemiology, July 2014. 

Puberty

Association of perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS) with age of puberty among children living near a chemical plant, Environment Science & Technology, October 2011.  

Thyroid

High exposure to perfluorinated compounds in drinking water and thyroid disease. A cohort study from Ronneby, Sweden. Environmental Research, September 2019. 

Exposure to perfluoroalkyl substances and thyroid function in pregnant women and children: A    systematic review of epidemiologic studies, Environment International, February 2017. 

Perfluorooctanoic acid exposure and thyroid disease in community and worker cohorts, Epidemiology, March 2014.    

Thyroid Function and Perfluoroalkyl Acids in Children Living Near a Chemical Plant, Environmental Health Perspectives, March 2012.

Ulcerative colitis

PFOA and ulcerative colitis, Environmental Research, May 2018. 

Ulcerative colitis and perfluorooctanoic acid (PFOA) in a highly exposed population of community residents and workers in the Mid-Ohio Valley, Environmental Health Perspectives, August 2013.  

Exposure, water contamination issues, general

Evaluation and management strategies for per- and polyfluoroalkyl substances (PFASs) in drinking water aquifers: perspectives from impacted U.S. northeast communities, Environmental Health Perspectives, June 2018. 

Half-lives of PFOS, PFHxS and PFOA after end of exposure to contaminated drinking water, Occupational and Environmental Medicine, November 2017.  

Technical Report: Half-lives of PFOS, PFHxS and PFOA after end of exposure to       contaminated drinking water, The Sahlgrenska Academy Institute Of Medicine, University of      Gothenburg, 2017.

A cohort incidence study of workers exposed to perfluorooctanoic acid (PFOA), Occupational Environmental Medicine, May 2015. 

Associations Between Serum Perfluoroalkyl Acids and LINE-1 DNA Methylation, Environment International, February 2014. 

Cohort mortality study of workers exposed to perfluorooctanoic acid, American Journal of Epidemiology, November 2012.    

Environmental fate and transport modeling for perfluorooctanoic acid emitted from the Washington Works Facility in West Virginia, Environment Science & Technology, January 2011. 

Private drinking water wells as a source of exposure to PFOA in communities surrounding a fluoropolymer production facility, Environmental Health Perspectives, January 2011. 

Biomarker-based calibration of retrospective exposure predictions of perfluorooctanoic acid, Environmental Science & Technology, May 2014. 

Accumulation and clearance of PFOA in current and former residents of an exposed community, Environmental Health Perspectives, January 2011.    

Epidemiologic evidence on the health effects of perfluorooctanoic acid (PFOA), Environmental Health Perspectives, August 2010. 

The C8 Health Project: Design, methods, and participants, Environmental Health Perspectives, December 2009. 

Other fact sheets and resources

Interstate Technology and Regulatory Council

Agency for Toxic Substances and Disease Registry

National Institute of Environmental Health Sciences

Centers for Disease Control and Prevention 

Environmental Working Group

Great Lakes PFAS Policy Agenda.

Center for the Advancement of Public Action (CAPA) at Bennington College

Books and film

Exposure – Poisoned Water, Corporate Greed, and One Lawyer’s Twenty-Year Battle against DuPont, by Robert Bilott, Atria Books (July 14, 2020).

The Devil We Know documentary film

Dark Waters feature film

California court rejects Bayer’s petition to review Pilliod Roundup trial victory

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Bayer AG suffered yet another setback this week in the company’s ongoing effort to undo at least one of the trial losses dealt to Monsanto Co. in U.S. litigation alleging that the company’s Roundup herbicide causes cancer and Monsanto spent decades covering up the risks.

Bayer, which bought Monsanto in 2018 just as the first Roundup trial was getting underway, petitioned the California Supreme Court in September seeking a review of the case of Pilliod v. Monsanto.  The court rejected that petition for review on Wednesday.

Husband and wife Alva and Alberta Pilliod were awarded over $2 billion in 2019 after a trial in which their lawyers presented evidence that the non-Hodgkin lymphoma (NHL) suffered by both was caused by their long-term exposure to Roundup herbicide. Alberta was diagnosed with non-Hodgkin lymphoma brain cancer  in 2015, while her husband Alva was diagnosed in 2011 with non-Hodgkin lymphoma that spread from his bones to his pelvis and spine. The couple had started using Roundup in the 1970s and used it for more than 30 years.

The trial judge then lowered the jury award to $87 million.

Alberta Pilliod told US Right to Know that she and her husband were very happy to hear of the court’s rejection of Bayer’s petition, and hope to soon see their judgment paid.

“We’ve jumped through all the hoops. We’d like to get to the final score,” she said.

Alva Pilliod, 79, remains in remission, and though 77-year-old Alberta is also currently in remission she has had multiple recurrences of her cancer and has to be hospitalized frequently for health problems, she said.

The California Supreme  Court’s refusal to review the Pilliod case comes three months after the 1st Appellate District in the Court of Appeal for California rejected Monsanto’s bid to overturn the trial loss.

The appeals court ruling had scathing words for Monsanto: “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 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 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.

Damning evidence

Evidence laid out in the Pilliod trial and two previous trials included numerous scientific studies that showed what plaintiffs’ attorneys said was proof Monsanto’s herbicides cause NHL. As well, the attorneys presented jurors with many internal Monsanto communications obtained through court-ordered discovery that show Monsanto has intentionally manipulated the public record to hide the cancer risks.

Bayer 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. This year, 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.

Stephens trial drags on

Even as Bayer attempts to settle cases, it also is proceeding to trial with several. One trial that has turned into a sluggish, on-again-off-again, Zoom-based trial is the case of Donnetta Stephens v. Monsanto.

The case, in the Superior Court of San Bernardino County in California, has been held via Zoom due to concerns about the spread of Covid-19, but has been marred by numerous technical problems as well as scheduling conflicts.

The jury trial has generally only been in session 2-3 days per week after getting underway in July. The next session is set for Monday, which will be the 51st day of trial.

Stephens suffers from non-Hodgkin lymphoma she blames on her use of Roundup. Her trial is a “preference” case, meaning her case was expedited after her lawyers informed the court that Stephens was “in a perpetual state of pain” and losing cognition and memory due.

Paraquat Papers – Updates to U.S. litigation

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Multiple lawsuits are pending in the United States against Syngenta alleging the weedkilling chemical paraquat causes Parkinson’s disease.

A notice of settlement was filed June 18, 2021 for several paraquat cases. See this document.

But more than 400 lawsuits are pending.

The lawsuits name Syngenta as well as Chevron Phillips Chemical Co. and Growmark Inc. as defendants. Chevron distributed and sold Gramoxone paraquat product in the United States in an agreement with a Syngenta predecessor called Imperial Chemical Industries (ICI), which introduced paraquat-based Gramoxone in 1962. Under a license agreement, Chevron had the right to to manufacture, use, and sell paraquat formulations in the U.S.

Lawyers around the United States are advertising for plaintiffs, seeking to draw in thousands of people who’ve been exposed to paraquat and now suffer from Parkinson’s.

Here is a list of actions pending through Judicial Council Coordination Proceedings (JCCP) as of Aug. 2, 2021

  • Harker v. Syngenta, et al. Case No. CGC-21-589755 (San Francisco Superior Court) (coordinated June 11, 2021)
  • De La Vega v. Syngenta, et al. Case No. C21-01057. (Contra Costa Superior Court) (coordinated July 19, 2021)
  • Louis Lombardo v. Syngenta et al., Alameda County Superior Court; Case No. RG21100757, filed on May 26, 2021 (coordinated July 19, 2021)
  • Lonnie Owens et al. v. Syngenta et al., Contra Costa Superior Court; Case No. C21-01187, filed on June 4, 2021 (coordinated July 19, 2021)
  • Borrelli v. Syngenta AG, et al. (Case No. MSC21-01217), filed June 24, 2021 in Contra Costa County Superior Court (coordinated July 23, 2021)
  • Isaak v. Syngenta AG, et al., San Francisco Superior Court; Case No. CGC-21591254 (coordinated August 2, 2021)
  • Rubino v. Syngenta, et al., Contra Costa County Superior Court Case No. C2101422 (coordinated August 2, 2021)
  • Aguiar v. Syngenta, et al. Case No. C21-01373. (Contra Costa Superior Court) (coordinated August 2, 2021)

Multidistrict litigation

On April 7, 2021, the Fears Nachawati Texas-based law firm filed a motion with the U.S. Judicial Panel on Multidistrict Litigation in Washington, D.C., asking that pending paraquat lawsuits be consolidated for pretrial proceedings in the Northern District of California, the same federal court where Roundup litigation was consolidated. The case with the judicial panel is MDL No. 3004. The panel hearing on the matter was May 27 and on June 7, the panel approved the formation of the paraquat multidistrict litigation, assigning it to Judge  Nancy J. Rosenstengel in the Southern District of Illinois.

Additionally, a class action lawsuit was filed in federal court in Iowa on May 3. The suit seeks “equitable relief in the form of medical monitoring, including, but not limited to, the costs of diagnostic testing” for farmers and others exposed to paraquat who are allegedly at “increased risk” for Parkinson’s, according to the legal filing.

At least 87 lawsuits were pending within the MDL as of October 25, 2021.

Science

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.

Acutely Toxic 

Along with fears about links between paraquat and Parkinson’s, paraquat is also known to be an extremely acutely toxic chemical that can quickly kill people who ingest very small amounts. In Europe, the sale of paraquat has been banned since 2007, but in the United States the pesticide is sold as a “Restricted Use Pesticide” due to “acute toxicity.”

As part of discovery in the Parkinson’s litigation, lawyers have obtained internal records from Syngenta and its predecessor corporate entities dating back to the 1960s. Many of these documents are sealed, but some have started to come to light.

Those unsealed discovery documents, which include copies of letters, minutes of meetings, study summaries, and emails, are being made available on this page.

Most of the documents unsealed to date deal with corporate discussions about how to keep paraquat herbicides on the market despite its deadliness, through measures designed to reduce accidental poisonings. Specifically, many of the documents detail an internal corporate struggle over the addition of an emetic, a vomit-inducing agent, to paraquat products.  Today, all Syngenta paraquat-containing products include an emetic called “PP796.”  Liquid paraquat-containing formulations from Syngenta also include a stenching agent to produce a foul odor, and a blue dye to differentiate the dark-colored herbicide from tea or cola or other beverages.

EPA Review 

Paraquat recently underwent the EPA’s registration review process,  and on August 2, 2021 the agency said paraquat would remain on the market with new safety measures aimed at reducing farmworker exposures. That followed the Oct. 23, 2020 release of a proposed interim decision (PID) for paraquat.  The interim decision proposed mitigation measures to reduce human health and ecological risks identified in the agency’s 2019 draft human health and ecological risk assessments.

Several organizations in September 2021 petitioned the 9th U.S. Circuit Court of Appeals, asking for the court to review and set aside the EPA’s decision. The petitioners include the California Rural Legal Assistance Foundation, Farmworker Association of Florida, Michael J. Fox Foundation for Parkinson’s Research, Farmworker Justice, Alianza Nacional de Campesinas, Pesticide Action Network North America, Center for Biological Diversity, and Toxic Free North Carolina. The groups claim the EPA is violating the Federal Insecticide, Fungicide, and Rodenticide Act

The EPA had indicated it would likely ban most aerial spraying of paraquat, but after industry lobbying efforts, the agency said it would allow such use with restrictions around residential areas.

The EPA said that through collaboration with the National Toxicology Program at the National Institute of Environmental Health Sciences, the agency completed a “thorough review” of the scientific information on paraquat and Parkinson’s Disease and concluded that the weight of evidence was insufficient to link paraquat to Parkinson’s disease. The agency published this “Systematic Review of the Literature to Evaluate the Relationship between Paraquat Dichloride Exposure and Parkinson’s Disease.”

In finding no evidence of a connection between paraquat and Parkinson’s, the EPA relied in part on input from the Agricultural Handler Exposure Task Force (AHETF),  a group that includes large agrochemical companies such as Syngenta AG, Bayer, Dow/Corteva, and others.

USRTK will add documents to this page as they become available.

Litigation alleging Syngenta’s paraquat weed killer causes Parkinson’s disease moving toward trial

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Lawyers involved in U.S. litigation accusing Syngenta AG of spending decades selling an herbicide that causes Parkinson’s disease are moving toward selection of a bellwether trial to be held roughly a year from now, according to the federal judge overseeing the litigation.

In a hearing on Friday, U.S. District Judge Nancy Rosenstengel of the Southern District of Illinois told lawyers for the hundreds of plaintiffs so far involved in the cases against Syngenta that they should work quickly to have the plaintiffs complete assessment questionnaires and provide their medical records and other relevant documents.

She said lawyers should be planning for a trial this time next year, though it is not clear yet who the first plaintiff or group of plaintiffs will be.

Rosenstengel is overseeing what is known as “multidistrict litigation (MDL) as a means of  consolidating the pretrial proceedings, such as discovery of evidence and depositions of witnesses. There are currently more than 380 cases within the MDL.

The judge also advised lawyers for plaintiffs and the defendants to work to coordinate with lawsuits in state courts that are making the same allegations – that exposure to paraquat weed killer caused the plaintiffs to develop Parkinson’s disease, a devastating neurological disease. Cases are pending in California, Illinois, Pennsylvania, and Washington.

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

On Friday, lawyers for Chevron USA Inc. filed a stipulation with the court stating that they had reached an agreement with plaintiffs’ co‐lead counsel allowing for the dismissal of Chevron USA and other entities from the litigation.

The stipulation states that Chevron Chemical Company (whose liabilities Chevron U.S.A. Inc.
assumed) stopped distributing paraquat in 1986 and transferred all paraquat registrations held by Chevron to a non‐Chevron entity at that time.

Lawyers around the United States are advertising for plaintiffs, seeking to draw in thousands of people who’ve been exposed to paraquat and now suffer from Parkinson’s.

The lawsuits include allegations “that manufacturers and sellers of paraquat deliberately concealed the dangers of paraquat for at least four decades, hid evidence of its dangers from government safety agencies, and knowingly unleased a product they knew caused Parkinson’s Disease on the public.”

On Oct. 27, Judge Rosenstengel issued an order regarding the “preservation and production”  of documents and other information. The defendants had already turned over a large amount of internal documents and other materials in a lawsuit that they settled earlier this year. Those materials are to be provided to the plaintiffs’ attorneys in the MDL action.

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.”

Lawyers for plaintiff George Isaak sought the judge’s permission to grant Isaak an expedited trial early in 2022 but were rejected.

EPA exposed for hiding chemical risks, favoring corporate interests

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The U.S. Environmental Protection Agency (EPA) has a long and well-documented history of questionable conduct when it comes to regulation of chemicals important to the profit centers for many large and powerful corporations.  Numerous examples show a pattern of agency actions that allow for the use of dangerous chemicals by consumers, farmers, groundskeepers and others despite evidence of harm.

Documents and other evidence, including information provided in public disclosures by multiple EPA scientists, reveals actions in which EPA managers have intentionally covered up risks associated with certain chemicals. According to the evidence from these EPA insiders, pressure from chemical manufacturers, chemical industry lobbyists and from certain U.S. lawmakers drives internal agency manipulations that protect corporate interests but endanger public health.

Evidence indicates the misconduct dates back decades and has occurred in administrations led by Democrats and Republican alike.

A research project sponsored by Harvard University’s Edmond J. Safra Center for Ethics said while the EPA has “many dedicated employees who truly believe in its mission,” the agency has been “corrupted by numerous routine practices,” including a “revolving door” between EPA and industry in which corporate lawyers and lobbyists gain positions of agency power; constant  industry lobbying against environmental regulations; pressure from  lawmakers who are beholden to donors; and meddling by the White House.

Most recent news

Background: Blowing the whistle

The Frank R. Lautenberg Chemical Safety for the 21 Century Act, signed into law on June 22, 2016, was the first substantive reform to Toxic Substances Control Act (TSCA). The law requires EPA to make an affirmative determination on whether a new chemical substance presents an “unreasonable risk” to human health or the environment under “known, intended or reasonably foreseen conditions of use.” See information here.

Despite the law, the EPA has failed to make valid determinations about the risk presented by numerous chemicals.

In June 2021, four EPA scientists, each working within the agency’s Office of Chemical Safety and
Pollution Prevention (OCSPP), publicly accused the the EPA of deliberate tampering with chemical risk assessments. The four whistleblowers made their complaints public through a group called Public  Employees for Environmental Responsibility (PEER).

In a June 28 letter to the U.S. House Committee on Oversight and Reform, PEER said the four EPA scientists were providing “disturbing evidence of fraud and corruption,” involving “deliberate tampering with chemical risk assessments conducted under the Toxics Substances Control Act (TSCA), including PFAS (a.k.a. “forever chemicals”), and the deletion of potential health effects without the knowledge or consent of the human health assessors.”

The letter further states:

“All four clients have experienced numerous instances where their risk assessments were changed
by their managers or by colleagues in response to direction by management. These changes
include –
● Deleting language identifying potential adverse effects, including developmental toxicity,
neurotoxicity, mutagenicity, and/or carcinogenicity;
● Major revisions that alter the report conclusions to indicate that there are no toxicity
concerns despite data to the contrary; and
● Risk assessments being reassigned to inexperienced employees in order to secure their
agreement to remove issues whose inclusion would be protective of human health.”

As a result of the manipulations, people who work with these chemicals are not receiving information they need to protect themselves, such as “proper handling procedures, personal protection needed, accidental release measures, and first aid and firefighting measures,” according to PEER.
This is a particular concern for pregnant women, according to the PEER complaint.

Erasing important information

On August 26, 2021, PEER filed a separate complaint alleging that the EPA has been breaking the law by erasing original versions of internal communications and draft documents and retaining only the final version of key documents. The practice violates the Federal Records Act by eliminating details of the decision-making process from outside review, according to PEER.

PEER states that that discarding of documents trails is not only contrary to law but also violates the EPA’s own records retention policy. According to PEER, its complaint focuses on two classes of documents:

  • Alterations of chemical risk assessments by managers in which both the identity of the manager and the alterations themselves are not apparent; and
  • Internal comments related to the development of its Waters of the United States (WOTUS) rule, in which EPA software overwrote the original and all prior versions any time there was an edit. Thus, only the “final” version was saved.

“It is as if EPA memorializes its internal decision-making in disappearing ink,” PEER Executive Director Tim Whitehouse, a former EPA enforcement attorney, said in a press release. “EPA’s record-keeping practices allow unknown officials to make changes while disguising what precisely was changed and who changed them.”

PEER said it has asked the National Archives and Records Administration to intervene to prevent the EPA from destroying more records and to adopt safeguards to prevent any recurrences.

The case of Ruth Etzel

Ruth Etzel,  former director of the EPA’s Office of Children’s Health Protection (OCHP), filed a  whistleblower complaint with the U.S. Merit Systems Protection Board contending she was subject to illegal retaliation in 2018 and 2019. Etzel said the agency retaliated against her after she complained publicly about what she said was  EPA resistance to stronger public protections against lead poisoning.

At the EPA it was Etzel’s job to determine the impacts of regulations on children. But she alleges she was improperly removed from her position after speaking out about EPA failures, and was assigned to a division where she was not allowed to work on prevention of lead poisoning.

Etzel is both a pediatrician and an epidemiologist and is recognized internationally as an expert on child health and the environment. She was named the 2021 winner of the Public Policy and Advocacy Award by the Academic Pediatric Association.

More than 120 environmental and health organizations  complained to EPA about Etzel’s removal, saying the agency was sending a “signal that children’s health is not a priority for the agency.”

Reporting on EPA’s misconduct

See here information, including news articles, regarding alleged EPA misconduct and regulatory failures:

New evidence of corruption at EPA chemicals division, by Sharon Lerner, The Intercept, September 18, 2021

EPA whistleblower testifies her advocacy for stronger health protections drew agency retaliation, by Carey Gillam, USRTK, September 13, 2021

‘The harm to children is irreparable’: Ruth Etzel speaks out ahead of EPA whistleblower hearing, Carey Gillam, The Guardian, September 12, 2021

The EPA’s rationale for banning chlorpyrifos may make it harder to eliminate other brain-harming pesticides , Sharon Lerner, The Intercept, August 24, 2021.

Formaldehyde causes leukemia, according to EPA assessment suppressed by Trump officials, Sharon Lerner, The Intercept, August 19, 2021.

EPA exposed: Leaked audio shows pressure to overrule scientists in “hair-on-hire” cases,  Sharon Lerner, The Intercept, August 4, 2021.

Whistleblowers expose corruption in EPA chemical safety office, Sharon Lerner, The Intercept, July 2, 2021.

How pesticide companies corrupted the EPA and poisoned America, Sharon Lerner, The Intercept, June 30, 2021.

Flawed analysis of an intentional human dosing study and its impact on chlorpyrifos risk assessment,  Lianne Sheppard, Seth McGrew, Richard Fenske, Environment International, July 2020.

Further Efforts Needed to Uphold Scientific Integrity Policy at EPA,  U.S. Environmental Protection Agency Office of Inspector General, May 20, 2020.

EPA Allowed Companies to Make 40 New PFAS Chemicals Despite Serious Risks, Sharon Lerner, The Intercept, September, 19, 2019.

E.P.A. Won’t Ban Chlorpyrifos, Pesticide Tied to Children’s Health Problems, Lisa Friedman, New York Times, July 18, 2019.

Emails show Trump EPA overruled career staff on Wisconsin air pollution, Timothy Gardner, Reuters, May 28, 2019.

US environment agency cuts funding for kids’ health studies, Sara Reardon, Nature, May 13, 2019.

Meet 3 women who stood up to Trump to protect the American people — and lost their jobs,  The Hill, January 19, 2019.

White House, EPA headed off chemical pollution study, Annie Snider, Politico, May 14, 2018.

Whitewash: The Story of a Weed Killer, Cancer, and the Corruption of Science, Carey Gillam, Island Press, October 10, 2017.

Records Show EPA Efforts to Slow Herbicide Review Came in Coordination with Monsanto, Carey Gillam, Huffington Post, August 18, 2017.

EPA Official Accused of Helping Monsanto “Kill” Cancer Study, Joel Rosenblatt, Lydia Mulvany, and Peter Waldman, Bloomberg, March 14, 2017.

Poison Spring- The Secret History of Pollution and the EPA, Evaggelos Vallianatos and McKay Jenkins, Bloomsbury Press, April 14, 2014.

Cancer patient lawyer spars with Monsanto scientist in California Roundup trial

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A lawyer for a woman claiming her use of Roundup herbicide caused her to develop non-Hodgkin lymphoma sparred with a longtime Monsanto scientist in court on Wednesday, forcing the scientist to address numerous internal corporate documents about research showing Monsanto weed killers could be genotoxic and lead to cancer.

The testimony by former Monsanto scientist Donna Farmer marked her second day on the stand and  came several weeks into the case of Donnetta Stephens v. Monsanto, the fourth Roundup trial in the United States, and the first since 2019. Juries in three prior trials all found in favor of plaintiffs who, like Stephens, alleged they developed non-Hodgkin lymphoma due to their use of Roundup or other Monsanto herbicides made with the chemical glyphosate. Thousands of people have filed similar claims.

Bayer AG, which bought Monsanto in 2018, has earmarked more than $14 billion to try to settle all of the U.S. Roundup litigation, but many plaintiffs have refused to settle, and cases continue to go to trial.

A “genotox hole”

In hours of contentious back-and-forth, interrupted repeatedly by objections from a Monsanto attorney, Stephens’ lawyer William Shapiro quizzed Monsanto toxicologist Donna Farmer about emails and documents dating back to the late 1990s that focused on research – and the company’s handling of that research – into whether or not the company’s herbicide products could cause cancer.

In one line of questioning, Shapiro asked Farmer about emails in which she and other company scientists discussed the company’s response to outside research that concluded the company’s glyphosate-based herbicides were genotoxic, meaning they damaged human DNA. Genotoxicity is an indicator that a chemical or other substance may cause cancer.

Shapiro focused during one series of questions on work done by a scientist named James Parry, who Monsanto hired as a consultant in the 1990s to weigh in on the genotoxicity concerns about Roundup being raised at the time by outside scientists. Parry’s report agreed there appeared to be “potential genotoxic activity” with glyphosate, and recommended that Monsanto do additional studies on its products.

In an internal Monsanto email dating from September 1999 written to Farmer and other company scientists, a Monsanto scientist named William Heydens said this about Parry’s report: “let’s step back and look at what we are really trying to achieve here. We want to find/develop someone who is comfortable with the genetox profile of glyphosate/Roundup and can be influential with regulators and Scientific Outreach operations when genetox issues arise. My read is that Parry is not currently such a person, and it would take quite some time and $$$/studies to get him there. We simply aren’t going to do the studies Parry suggests.”

In a separate email revealed through the litigation, Farmer wrote that Parry’s report put the company into a “genotox hole” and she mentioned a suggestion by a colleague that the company should “drop” Parry.

Farmer testified that her mention of a “genotox hole” referred to problems with “communication” not about any cancer risk. She also said that she and other Monsanto scientists did not have concerns with the safety of glyphosate or Roundup, but did have concerns about how to respond to paper and research by outside scientists raising such concerns.

Shapiro pressed Farmer on her reaction to Parry’s finding: “You thought it would be okay on behalf of Monsanto to receive information as you did from Dr. Parry that this Roundup product was genotoxic or could be, you thought it would be okay to go ahead and continue to sell the product, correct?”

Farmer replied: “We didn’t agree with Professor Parry’s conclusions at the time that it may be, could be, capable of being genotoxic. We had other evidence….  We had regulators who had agreed with our studies and conclusions that it was not genotoxic.”

Her answer was interrupted as Shapiro objected, saying he was asking a yes or no question and Farmer’s attempt to respond beyond that should be stricken. The judge agreed and struck part of the response.

Continuing his questioning, Shapiro asked: “Well that didn’t work out to have Dr. Parry be the spokesperson for Monsanto, did it Dr. Farmer?

“I would disagree with you because there is still a lot more to this Professor Parry, working with him, and I’d be happy to…” Farmer replied before being cut off by another Shapiro objection and the judge’s striking of everything following the first five words.

A similar pattern played out throughout Farmer’s testimony as Stephens’ lawyer objected to Farmer’s attempts to provide extended answers to multiple questions posed, and Monsanto’s lawyer Manuel Cachan objecting repeatedly to Shapiro’s questions as “argumentative.”

Ghostwriting and “FTO”

Shapiro asked Farmer to address multiple issues expressed in the internal corporate emails, including one series in which Monsanto scientists discussed ghostwriting scientific papers, including a very prominent paper published in the year 2000 that asserted there were no human health concerns with glyphosate or Roundup.

Shapiro additionally asked Farmer to address a strategy Monsanto referred to in emails as “Freedom to Operate” or “FTO”. Plaintiffs’ lawyers have presented FTO as Monsanto’s strategy of doing whatever it took to lessen or eliminate restrictions on its products.

And he asked her about Monsanto emails expressing concerns about research into dermal absorption rates – how fast its herbicide might absorb into human skin.

Farmer said multiple times that information was not being presented in the correct context, and she would be happy to provide detailed explanations for all of the issues raised by Shapiro, but was told by the judge she would need to wait until questioning by Monsanto’s lawyers to do so.

Zoom trial

The Stephens trial is taking place under the oversight of Judge Gilbert Ochoa of the Superior Court of San Bernardino County in California. The trial is being held via Zoom due to concerns about the spread of Covid-19, and numerous technical difficulties have plagued the proceedings. Testimony has been halted multiple times because jurors have lost connections or had other problems that inhibited their ability to hear and view the trial testimony.

Stephens 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.

The three prior trials were all lengthy, in-person proceedings loaded with weeks of highly technical testimony about scientific data, regulatory matters and documents detailing internal Monsanto communications.

Litigation against Syngenta grows; lawyers fight over evidence and trial dates

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Syngenta AG is facing a growing number of U.S. lawsuits over allegations that its paraquat herbicide causes Parkinson’s disease, with a Fresno, California man pushing for an expedited trial that potentially would start within the next few months, and multiple plaintiffs’ lawyers jockeying for power and influence over future trial proceedings.

Plaintiff George Isaak used paraquat to treat weeds on orchard and vineyard property from 1964 through 2004, mixing, loading and spraying the pesticide routinely before he was diagnosed with Parkinson’s in May of 2020, according to his lawsuit.

Isaak used a 200-gallon “spraying rig” on the 60-acre farm where he raised peaches, nectarines, almonds, pistachios, and grapes before retiring in 2005. Isaak, 84, now has such severe Parkinson’s symptoms that he has suffered several falls, finds it hard to speak, and is confined to a wheelchair, according to his lawyers.

Isaak attorney Mike Miller said his client has been left with “horrible” injuries from Parkinson’s.

Isaak should now be given a trial date no later than January due to his decline in cognition and overall debilitation to his health, according to a court filing by The Miller Firm and co-counsel.

Isaak “had no reason to suspect that chronic, low-dose exposure to Paraquat could cause neurological diseases such as Parkinson’s disease,” the lawsuit states. But evidence will show, the lawsuit contends, that the paraquat use was a “substantial factor in causing Plaintiff George Isaak to suffer severe and permanent physical injuries, pain, mental anguish, and disability, and will continue to do so for the remainder of Plaintiff George Isaak’s life.”

Carol Isaak, George Isaak’s wife, is also a plaintiff in the lawsuit and is seeking a claim for loss of consortium.

There are hundreds of cases pending in state and federal courts around the country, according to a June 22 court filing. The plaintiffs in those cases all 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, and is seeking to dismiss, or limit the lawsuits. The company filed a “partial motion to dismiss” in federal court on Sept. 13, citing various state law provisions in asking the court to dismiss claims “for breach of warranty, fraud, and violation of certain consumer protection statutes.”

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

Infighting among plaintiffs’ lawyers

Syngenta said in a Sept. 17 court filing that it opposes the granting of an expedited trial, known as a “preference” trial, for Isaak.

“Mr. Isaak has presented no evidence regarding his alleged paraquat exposures, and his medical records and doctor’s declaration cast doubt on whether he actually has Parkinson’s disease,” the company said in its filing.

Syngenta noted that there are many other plaintiffs expected to request preference trials.

In addition to the objection from Syngenta, Isaak’s lawyers effort to obtain court approval for a preference trial has come into conflict with an effort by other attorneys representing other plaintiffs in the paraquat litigation.

Plaintiffs law firm Walkup, Melodia, Kelly & Schoenberger is seeking to create a special committee made up of plaintiffs’ lawyers that would evaluate and screen cases seeking preference trials. Typically such requests for expedited trials go directly to a judge.

The firm said a committee was needed because many of the plaintiffs in the overall paraquat litigation would “likely qualify” for preference. They are proposing a protocol implemented by a five-member committee of plaintiffs’ lawyers.

“The majority of the plaintiffs, including both filed and unfiled cases known to plaintiffs’ counsel, are over the age of 65. The reality of these cases is that there are many plaintiffs, as well as many potential plaintiffs, whose disease progression is unstable and who have a real and substantial danger of losing their ability to testify, or losing their ability to meaningfully utilize their compensation, if their trials are not prioritized,” the firm stated in a court filing.

The firm added in a separate filing: “An uncontrolled race to file competing preference motions risks sending a plaintiff to trial who does not represent the plaintiff population. And should the initial trials be ultimately unsuccessful, it jeopardizes the rights of all remaining plaintiffs in the proceeding.”

Isaak’s lawyers oppose the formation of such a committee and filed a memorandum explaining that opposition on Sept. 17, arguing that the use of a preference committee is “unconstitutional on its face.”

Whether or not a plaintiff meets the criteria deserving of a preference trial should not be left up to the arbitrary nature of a committee of other plaintiffs’ attorneys, they said.

The attorneys registering opposition to the preference committee additionally allege that the Walkup firm has a conflict of interest because it has already reached a “large, lucrative” settlement agreement with Syngenta for some of its clients, and until that deal is finalized, Syngenta and the other defendants still could walk away from the deal.

Thus, the Walkup firm is “a conflicted law firm,” the attorneys allege. In addition to The Miller Firm, the law firms registering opposition are the Wagstaff Law Firm and Brady Law Group.

A hearing on the matter is set for Sept. 30.

Battle over discovery documents

The lawyers for plaintiffs have also been fighting over access to internal Syngenta corporate documents and other evidence obtained as part of court-ordered “discovery.”

Over the last few years, Syngenta and the other defendants turned over millions of documents to Missouri lawyer Steve Tillery in his representation of a paraquat lawsuit titled Hoffman V. Syngenta, that was pending in St. Clair County, Illinois. The Hoffman case had been set to go to trial earlier this year but Tillery and the defendants agreed to a settlement and no trial was held.

The lawyers for the plaintiffs pursuing trials want to make use of the materials already turned over in the Hoffman case, including internal corporate documents as well as depositions and expert reports. Tillery and Syngenta objected to sharing some of the materials but were ordered to do so by the federal judge overseeing consolidated paraquat proceedings in the Northern District of California.

Scientific studies

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.”

Syngenta argues that newer and more robust research, including by AHS scientists, has discounted a tie between paraquat and Parkinson’s.

A 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.”

Because the paraquat litigation is expected to continue to grow, the U.S. Judicial Panel on Multidistrict Litigation (MDL) in Washington, D.C. approved the consolidation of pretrial proceedings in the U.S. District Court in the Southern District of Illinois under the oversight of Chief Judge Nancy Rosenstengel.

Similarly, several other cases are consolidated in Judicial Council Coordination Proceedings in Contra Costa County Superior Court in California.

Monsanto lawyer cross-examines cancer patient over her claims Roundup caused her disease

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A California woman suing Monsanto over allegations that her use of Roundup weed killer caused her to develop cancer testified Monday that she had a hard time remembering many details about the extent of her use of the pesticide, struggling to answer several questions posed by a Monsanto attorney.

In cross examination, Monsanto attorney Bart Williams pressed plaintiff Donnetta Stephens on how much and when she had used the company’s popular herbicide before she was diagnosed with non-Hodgkin lymphoma in 2017. Peppering Stephens with questions about changes in information she provided in depositions and interrogatories, the company’s lawyer sought to cast doubt on the span and volume of her actual use and exposure.

In testimony last week, Stephens’ son David Stephens recalled his mother’s frequent use of Roundup 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 seeing that use continuing when he was an adult.

But in Monday’s testimony, Williams sought to undermine Donnetta Stephens credibility, implying that her son and husband were the architects of many of her answers about her use of Roundup provided in pre-trial documents.

He said that Stephens and her husband had “changed your story about the length of time you had used Roundup,” saying initially her use dated back to 2003 but then saying the use began in 1985.

Stephens acknowledged that her memories of her use were aided by information from her family.

“You and I agree that one should not swear to something, accuracy, if you don’t know whether it is true or not.  That is my question,” Monsanto’s lawyer addressed Stephens.

“At that time, I believed it to be true, yes sir,” she replied.

“You believed it to be true solely because that’s what your husband or your son said, correct?” Williams  asked.

“Yes,” Stephens answered.

The line of questioning was anticipated in a June filing by Stephens’ lawyers, explaining to the judge that Stephens is in frail health after six cycles of chemotherapy and has suffered significant memory loss, making her “unable to recall certain Roundup exposures.”

She had told lawyers initially that her exposure extended over 14 years but amended that to say it was  closer to 30 years after being reminded of her use of Roundup products at a property where she had previously lived, according to her lawyers.

In their June filing, Stephens lawyers said Monsanto’s attorneys were accusing them and Stephens of “engaging in gamesmanship,” and allegation they denied.

Stephens testified that she does remember that sometimes when she was spraying Roundup the wind would blow spray onto her bare skin. She said she would not immediately wash it off, showering only after she completed her yardwork.

“It was all over me,” Stephens said.

At one point Monsanto’s attorney asked Stephens about her relationship with her children. When Stephens insisted she was close to her children, Monsanto’s attorney played a video deposition of a previous statement she had made saying the opposite.

Longtime Monsanto scientist Donna Farmer is scheduled to testify Tuesday.

Monsanto is owned by Germany’s Bayer AG. Bayer bought Monsanto in 2018.

Preference case

Stephens’ trial is a “preference” case, meaning her case was expedited after her lawyers informed the court that Stephens was “in a perpetual state of pain” and losing cognition and memory.

The case is being tried in the Superior Court of San Bernardino County in California under the oversight of Judge Gilbert Ochoa. It is the fourth Roundup cancer trial to take place in the United States and the first since 2019. Juries in all three prior trials found in favor of the plaintiffs, agreeing with claims that Monsanto’s glyphosate-based weed killers, such as Roundup, cause non-Hodgkin lymphoma and Monsanto spent decades covering up the risks, and failing to warn users.

Stephens 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.

The three prior trials were all lengthy, in-person proceedings loaded with weeks of highly technical testimony about scientific data, regulatory matters and documents detailing internal Monsanto communications.

Stephens trial is being held via Zoom due to concerns about the spread of Covid-19, and numerous technical difficulties have plagued the proceedings. On Monday, the trial was stopped several times because jurors lost connections or had other problems that inhibited their ability to hear and view the trial testimony.

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.