Chlorpyrifos: common pesticide tied to brain damage in children

Print Email Share Tweet

Chlorpyrifos, a widely used pesticide, is strongly linked to brain damage in children. These and other health concerns have led several countries and some U.S. states to ban chlorpyrifos, but the chemical is still allowed on food crops in the U.S. after successful lobbying by its manufacturer.

Chlorpyrifos in food  

Chlorpyrifos insecticides were introduced by Dow Chemical in 1965 and have been used widely in agricultural settings. Commonly known as the active ingredient in the brand names Dursban and Lorsban, chlorpyrifos is an organophosphate insecticide, acaricide and miticide used primarily to control foliage and soil-borne insect pests on a variety of food and feed crops. Products come in liquid form as well as granules, powders, and water-soluble packets, and may be applied by either ground or aerial equipment.

Chlorpyrifos is used on a wide variety of crops including apples, oranges, strawberries, corn, wheat, citrus and other foods families and their children eat daily. USDA’s Pesticide Data Program found chlorpyrifos residue on citrus and melons even after being washed and peeled. By volume, chlorpyrifos is most used on corn and soybeans, with over a million pounds applied annually to each crop. The chemical is not allowed on organic crops.

Non-agricultural uses include golf courses, turf, green houses, and utilities.

Human health concerns

The American Academy of Pediatrics, which represents more than 66,000 pediatricians and pediatric surgeons, has warned that continued use of chlorpyrifos puts developing fetuses, infants, children and pregnant women at great risk.

Scientists have found that prenatal exposures to chlorpyrifos are associated with lower birth weight, reduced IQ, the loss of working memory, attention disorders, and delayed motor development. Key studies are listed below.

Chlorpyrifos is also linked to acute pesticide poisoning and can cause convulsions, respiratory paralysis, and sometimes, death.

FDA says food and drinking water exposures unsafe

Chlorpyrifos is so toxic that the European Food Safety Authority banned sales of the chemical as of January 2020, finding that there is no safe exposure level. Some U.S. states have also banned chlorpyrifos from farming use, including California and Hawaii.

The U.S. Environmental Protection Agency (EPA) reached agreement with Dow Chemical in 2000 to phase out all residential uses of chlorpyrifos because of scientific research showing the chemical is dangerous to the developing brains of babies and young children. It was banned from use around schools in 2012.

In October 2015, the EPA said it planned to revoke all food residue tolerances for chlorpyrifos, meaning it would no longer be legal to use it in agriculture. The agency said “expected residues of chlorpyrifos on food crops exceed the safety standard under the Federal Food, Drug, and Cosmetic Act.” The move came in response to a petition for a ban from the Natural Resources Defense Council and Pesticide Action Network.

In November 2016, the EPA released a revised human health risk assessment for chlorpyrifos confirming it was unsafe to allow the chemical to continue in use in agriculture.  Among other things, the EPA said all food and drinking water exposures were unsafe, especially to children 1-2 years old. The EPA said the ban would take place in 2017.

Trump EPA delays ban

Following the election of Donald Trump as President of the United States, the proposed chlorpyrifos ban was delayed. In March 2017, in one of his first formal actions as the nation’s top environmental official, EPA Administrator Scott Pruitt rejected the petition by environmental groups and said the ban on chlorpyrifos would not go forward.

The Associated Press reported in June 2017 that Pruitt had met with Dow CEO Andrew Liveris 20 days before halting the ban. Media also reported that Dow contributed $1 million to Trump’s inaugural activities.

In February of 2018, EPA reached a settlement requiring Syngenta to pay a $150,000 fine and train farmers in pesticide use after the company failed to warn workers to avoid fields where chlorpyrifos was recently sprayed and several workers who entered the fields were sickened and required medical care. The Obama EPA had initially proposed a fine nearly nine times larger.

In February 2020, after pressure from consumer, medical, scientific groups and in face of growing calls for bans around the world, Corteva AgriScience (formerly DowDuPont) said it would phase out production of chlorpyrifos, but the chemical remains legal for other companies to make and sell.

According to an analysis published in July 2020, U.S. regulators relied on falsified data provided by Dow Chemical to allow unsafe levels of chlorpyrifos into American homes for years. The analysis from University of Washington researchers said the inaccurate findings were the result of a chlorpyrifos dosing study done in the early 1970s for Dow.

In September 2020 the EPA issued its third risk assessment on chlorpyrifos, saying “despite several years of study, peer review, and public process, the science addressingneurodevelopmental effects remains unresolved,” and it still could be used in food production.

The decision came after multiple meetings between the EPA and Corteva.

Groups and states sue EPA

Following the Trump administration’s decision to delay any ban until at least 2022, Pesticide Action Network and Natural Resources Defense Council filed suit against the EPA in April 2017, seeking to force the government to follow through with the Obama administration’s recommendations to ban chlorpyrifos. In August 2018, a federal appeals court found that the EPA broke the law by continuing to allow use of chlorpyrifos, and ordered EPA to finalize its proposed ban within two months. After more delays, EPA Administrator Andrew Wheeler announced in July 2019 that EPA would not ban the chemical.

Several states have sued the EPA over its failure to ban chlorpyrifos, including California, New York, Massachusetts, Washington, Maryland, Vermont and Oregon. The states argue in court documents that chlorpyrifos should be banned in food production due to the dangers associated with it.

Earthjustice has also filed a lawsuit in the U.S. Court of Appeals for the Ninth Circuit Court seeking a nationwide ban on behalf of groups advocating for environmentalists, farmworkers and people with learning disabilities.

Medical and scientific studies

Developmental neurotoxicity

“The epidemiological studies reviewed herein have reported statistically significant correlations between prenatal exposures to CPF [chlorpyrifos] and postnatal neurological complications, particularly cognitive deficits that are also associated with disruption of the structural integrity of the brain…. Various preclinical research groups throughout the world have consistently demonstrated that CPF is a developmental neurotoxicant. The developmental CPF neurotoxicity, which is well supported by studies using different animal models, routes of exposure, vehicles, and testing methods, is generally characterized by cognitive deficits and disruption of the structural integrity of the brain.” Developmental neurotoxicity of the organophosphorus insecticide chlorpyrifos: from clinical findings to preclinical models and potential mechanisms. Journal of Neurochemistry, 2017.

“Since 2006, epidemiological studies have documented six additional developmental neurotoxicants—manganese, fluoride, chlorpyrifos, dichlorodiphenyltrichloroethane, tetrachloroethylene, and the polybrominated diphenyl ethers.” Neurobehavioural effects of developmental toxicity. Lancet Neurology, 2014.

Childrens’ IQ & cognitive development

Longitudinal birth cohort study of inner-city mothers and children found that “higher prenatal CPF [chlorpyrifos] exposure, as measured in umbilical cord blood plasma, was associated with decreases in cognitive functioning on two different WISC-IV indices, in a sample of urban minority children at 7 years of age…the Working Memory Index was the most strongly associated with CPF exposure in this population.” Seven-Year Neurodevelopmental Scores and Prenatal Exposure to Chlorpyrifos, a Common Agricultural Pesticide. Environmental Health Perspectives, 2011.

Birth cohort study of predominantly Latino farmworker families in California associated a metabolite of organophosphate pesticides found in the urine in pregnant women with poorer scores in their children for memory, processing speed, verbal comprehension, perceptual reasoning and IQ.  “Our findings suggest that prenatal exposure to OP [organophosphate] pesticides, as measured by urinary DAP [dialkyl phosphate] metabolites in women during pregnancy, is associated with poorer cognitive abilities in children at 7 years of age. Children in the highest quintile of maternal DAP concentrations had an average deficit of 7.0 IQ points compared with those in the lowest quintile. Associations were linear, and we observed no threshold.” Prenatal Exposure to Organophosphate Pesticides and IQ in 7-Year-Old Children. Environmental Health Perspectives, 2011.

Prospective cohort study of women and their children findings “suggest that prenatal exposure to organophosphates is negatively associated with cognitive development, particularly perceptual reasoning, with evidence of effects beginning at 12 months and continuing through early childhood.” Prenatal Exposure to Organophosphates, Paraoxonase 1, and Cognitive Development in Childhood. Environmental Health Perspectives, 2011.

Prospective cohort study of an inner-city population found that children with high levels of exposure to chlorpyrifos “scored, on average, 6.5 points lower on the Bayley Psychomotor Development Index and 3.3 points lower on the Bayley Mental Development Index at 3 years of age compared with those with lower levels of exposure. Children exposed to higher, compared with lower, chlorpyrifos levels were also significantly more likely to experience Psychomotor Development Index and Mental Development Index delays, attention problems, attention-deficit/hyperactivity disorder problems, and pervasive developmental disorder problems at 3 years of age.” Impact of Prenatal Chlorpyrifos Exposure on Neurodevelopment in the First 3 Years of Life Among Inner-City Children. Journal of the American Academy of Pediatrics, 2006.

Longitudinal birth cohort study in an agricultural region of California extends “previous findings of associations between PON1 genotype and enzyme levels and certain domains of neurodevelopment through early school age, presenting new evidence that adverse associations between DAP [dialkyl phosphate]levels and IQ may be strongest in children of mothers with the lowest levels of PON1 enzyme.” Organophosphate pesticide exposure, PON1, and neurodevelopment in school-age children from the CHAMACOS study.  Environmental Research, 2014.

Autism and other neurodevelopmental disorders

Population based case-control study found that, “Prenatal or infant exposure to a priori selected pesticides—including glyphosate, chlorpyrifos, diazinon, and permethrin—were associated with increased odds of developing autism spectrum disorder.” Prenatal and infant exposure to ambient pesticides and autism spectrum disorder in children: population based case-control study. BMJ, 2019.

Population-based case-control study “observed positive associations between ASD [autism spectrum disorders] and prenatal residential proximity to organophosphate pesticides in the second (for chlorpyrifos) and third trimesters (organophosphates overall)”. Neurodevelopmental Disorders and Prenatal Residential Proximity to Agricultural Pesticides: The CHARGE Study. Environmental Health Perspectives, 2014.

See also: Tipping the Balance of Autism Risk: Potential Mechanisms Linking Pesticides and Autism. Environmental Health Perspectives, 2012.

Brain anomalies

“Our findings indicate that prenatal CPF [chlorpyrifos] exposure, at levels observed with routine (nonoccupational) use and below the threshold for any signs of acute exposure, has a measureable effect on brain structure in a sample of 40 children 5.9–11.2 y of age. We found significant abnormalities in morphological measures of the cerebral surface associated with higher prenatal CPF exposure….Regional enlargements of the cerebral surface predominated and were located in the superior temporal, posterior middle temporal, and inferior postcentral gyri bilaterally, and in the superior frontal gyrus, gyrus rectus, cuneus, and precuneus along the mesial wall of the right hemisphere”. Brain anomalies in children exposed prenatally to a common organophosphate pesticide.  Proceedings of the National Academy of Sciences, 2012.

Fetal growth

This study “saw a highly significant inverse association between umbilical cord chlorpyrifos levels and both birth weight and birth length among infants in the current cohort born prior to U.S. EPA regulatory actions to phase out residential uses of the insecticide.” Biomarkers in assessing residential insecticide exposures during pregnancy and effects on fetal growth. Toxicology and Applied Pharmacology, 2005.

Prospective, multiethnic cohort study found that “when the level of maternal PON1 activity was taken into account, maternal levels of chlorpyrifos above the limit of detection coupled with low maternal PON1 activity were associated with a significant but small reduction in head circumference. In addition, maternal PON1 levels alone, but not PON1 genetic polymorphisms, were associated with reduced head size. Because small head size has been found to be predictive of subsequent cognitive ability, these data suggest that chlorpyrifos may have a detrimental effect on fetal neurodevelopment among mothers who exhibit low PON1 activity.” In Utero Pesticide Exposure, Maternal Paraoxonase Activity, and Head Circumference.  Environmental Health Perspectives, 2003.

Prospective cohort study of minority mothers and their newborns “confirm our earlier findings of an inverse association between chlorpyrifos levels in umbilical cord plasma and birth weight and length…Further, a dose-response relationship was additionally seen in the present study. Specifically, the association between cord plasma chlorpyrifos and reduced birth weight and length was found principally among newborns with the highest 25% of exposure levels.” Prenatal Insecticide Exposures and Birth Weight and Length among an Urban Minority Cohort. Environmental Health Perspectives, 2004.

Lung Cancer  

In an evaluation of over 54,000 pesticide applicators in the Agricultural Health Study, scientists at the National Cancer Institute reported that the incidence of lung cancer was associated with chlorpyrifos exposure. “In this analysis of cancer incidence among chlorpyrifos-exposed licensed pesticide applicators in North Carolina and Iowa, we found a statistically significant trend of increasing risk of lung cancer, but not of any other cancer examined, with increasing chlorpyrifos exposure.” Cancer Incidence Among Pesticide Applicators Exposed to Chlorpyrifos in the Agricultural Health Study. Journal of the National Cancer Institute, 2004.

Parkinson’s Disease

Case-control study of people living in California’s Central Valley reported that ambient exposure to 36 commonly used organophosphate pesticides separately increased the risk of developing Parkinson’s disease. The study “adds strong evidence” that organophosphate pesticides are “implicated” in the etiology of idiopathic Parkinson’s disease. The association between ambient exposure to organophosphates and Parkinson’s disease risk. Occupational & Environmental Medicine, 2014.

Birth outcomes

Multiethnic parent cohort of pregnant women and newborns found that chlorpyrifos “was associated with decreased birth weight and birth length overall (p = 0.01 and p = 0.003, respectively) and with lower birth weight among African Americans (p = 0.04) and reduced birth length in Dominicans (p < 0.001)”. Effects of Transplacental Exposure to Environmental Pollutants on Birth Outcomes in a Multiethnic Population. Environmental Health Perspectives, 2003.

Neuroendocrine disruption

“Through the analysis of complex sex-dimorphic behavioral patterns we show that neurotoxic and endocrine disrupting activities of CPF [chlorpyrifos] overlap. This widely diffused organophosphorus pesticide might thus be considered as a neuroendocrine disruptor possibly representing a risk factor for sex-biased neurodevelopmental disorders in children.” Sex dimorphic behaviors as markers of neuroendocrine disruption by environmental chemicals: The case of chlorpyrifos. NeuroToxicology, 2012.

Tremor

“The present findings show that children with high prenatal exposure to chlorpyrifos were significantly more likely to show mild or mild to moderate tremor in one or both arms when assessed between the ages of 9 and 13.9 years of age….Taken together, growing evidence suggests that prenatal exposure to CPF [chlorpyrifos], at current standard usage levels, is associated with a range of persistent and inter-related developmental problems.” Prenatal exposure to the organophosphate pesticide chlorpyrifos and childhood tremor. NeuroToxicology, 2015.

Cost of chlorpyrifos

Cost estimates of exposure to endocrine-disrupting chemicals in the European Union found that “Organophosphate exposures were associated with 13.0 million (sensitivity analysis, 4.24 million to 17.1 million) lost IQ points and 59 300 (sensitivity analysis, 16 500 to 84 400) cases of intellectual disability, at costs of €146 billion (sensitivity analysis, €46.8 billion to €194 billion).” Neurobehavioral Deficits, Diseases, and Associated Costs of Exposure to Endocrine-Disrupting Chemicals in the European Union. Journal of Clinical Endocrinology & Metabolism, 2015.

Thyroid in mice

“The present study showed that exposure of CD1 mice, during critical windows of prenatal and postnatal development, at CPF [chlorpyrifos] dose levels below those inhibiting brain AchE, can induce alterations in thyroid.” Developmental Exposure to Chlorpyrifos Induces Alterations in Thyroid and Thyroid Hormone Levels Without Other Toxicity Signs in Cd1 Mice.  Toxicological Sciences, 2009.

Problems with industry studies

“In March 1972, Frederick Coulston and colleagues at the Albany Medical College reported results of an intentional chlorpyrifos dosing study to the study’s sponsor, Dow Chemical Company. Their report concluded that 0.03 mg/kg-day was the chronic no-observed-adverse-effect-level (NOAEL) for chlorpyrifos in humans. We demonstrate here that a proper analysis by the original statistical method should have found a lower NOAEL (0.014 mg/kg-day), and that use of statistical methods first available in 1982 would have shown that even the lowest dose in the study had a significant treatment effect. The original analysis, conducted by Dow-employed statisticians, did not undergo formal peer review; nevertheless, EPA cited the Coulston study as credible research and kept its reported NOAEL as a point of departure for risk assessments throughout much of the 1980′s and 1990′s. During that period, EPA allowed chlorpyrifos to be registered for multiple residential uses that were later cancelled to reduce potential health impacts to children and infants. Had appropriate analyses been employed in the evaluation of this study, it is likely that many of those registered uses of chlorpyrifos would not have been authorized by EPA. This work demonstrates that reliance by pesticide regulators on research results that have not been properly peer-reviewed may needlessly endanger the public.” Flawed analysis of an intentional human dosing study and its impact on chlorpyrifos risk assessments. Environment International, 2020.

“In our review of raw data on a prominent pesticide, chlorpyrifos, and a related compound, discrepancies were discovered between the actual observations and the conclusions drawn by the test laboratory in the report submitted for authorization of the pesticide.” Safety of Safety Evaluation of Pesticides: developmental neurotoxicity of chlorpyrifos and chlorpyrifos-methyl. Environmental Health, 2018.

Other fact sheets

Harvard Kennedy School Shorenstein Center: A controversial insecticide and its effect on brain development: Research and resources

Harvard University: The Most Widely Used Pesticide, One Year Later

Earthjustice: Chlorpyrifos: The toxic pesticide harming our children and environment

Sierra Club: Kids and Chlorpyrifos

Journalism and Opinion

Imaging by Bradley Peterson, via Proceedings of the National Academy of Sciences; New York Times

Trump’s Legacy: Damaged Brains, by Nicholas Kristof, New York Times. “The pesticide, which belongs to a class of chemicals developed as a nerve gas made by Nazi Germany, is now found in food, air and drinking water. Human and animal studies show that it damages the brain and reduces I.Q.s while causing tremors among children.”

Protect Our Children’s Brains, by Sharon Lerner, New York Times. “The widespread use of chlorpyrifos does point to the fact that it’s not the kind of chemical that harms everyone who comes in contact with it — or causes them to drop dead on impact. Instead, the research shows increases in the risk of suffering from certain developmental problems that, while less dramatic, are also, alarmingly, enduring.”

Poison Fruit: Dow Chemical Wants Farmers to Keep Using a Pesticide Linked to Autism and ADHD, by Sharon Lerner, The Intercept. “Dow, the giant chemical company that patented chlorpyrifos and still makes most of the products containing it, has consistently disputed the mounting scientific evidence that its blockbuster chemical harms children. But the government report made it clear that the EPA now accepts the independent science showing that the pesticide used to grow so much of our food is unsafe.”

When enough data are not enough to enact policy: The failure to ban chlorpyrifos, by Leonardo Trasande, PLOS Biology. “Scientists have a responsibility to speak up when policymakers fail to accept scientific data. They need to emphatically declare the implications of policy failures, even if some of the scientific underpinnings remain uncertain.”

How Has This Pesticide Not Been Banned? by the editorial board of The New York Times. “The pesticide known as chlorpyrifos is both clearly dangerous and in very wide use. It is known to pass easily from mother to fetus and has been linked to a wide range of serious medical problems, including impaired development, Parkinson’s disease and some forms of cancer. That’s not entirely surprising. The chemical was originally developed by Nazis during World War II for use as a nerve gas. Here’s what is surprising: Tons of the pesticide are still being sprayed across millions of acres of United States farmland every year, nearly five years after the Environmental Protection Agency determined that it should be banned.”

This pesticide is closely related to nerve agents used in World War II. Trump’s EPA doesn’t care, by Joseph G. Allen, Washington Post. “What we know about chlorpyrifos is alarming. Perhaps the most well-known study is one done by researchers at Columbia University who performed brain imaging on young kids with high exposure to chlorpyrifos. The results are shocking and unambiguous. In the words of the researchers: “This study reports significant associations of prenatal exposure to a widely used environmental neurotoxicant, at standard use levels, with structural changes in the developing human brain.”

A Strong Case Against a Pesticide Does Not Faze E.P.A. Under Trump, by Roni Caryn Robin, New York Times. “An updated human health risk assessment compiled by the E.P.A. in November found that health problems were occurring at lower levels of exposure than had previously been believed harmful. Infants, children, young girls and women are exposed to dangerous levels of chlorpyrifos through diet alone, the agency said. Children are exposed to levels up to 140 times the safety limit.”

Babies Are Larger After Ban On 2 Pesticides, Study Finds, by Richard Pérez-Peña, New York Times. “Pregnant women in upper Manhattan who were heavily exposed to two common insecticides had smaller babies than their neighbors, but recent restrictions on the two substances quickly lowered exposure and increased babies’ size, according to a study being published today.”

Poisons Are Us, by Timothy Egan, New York Times. “When you bite into a piece of fruit, it should be a mindless pleasure. Sure, that steroidal-looking strawberry with a toothpaste-white interior doesn’t seem right to begin with. But you shouldn’t have to think about childhood brain development when layering it over your cereal. The Trump administration, in putting chemical industry toadies between our food and public safety, has forced a fresh appraisal of breakfast and other routines that are not supposed to be frightful.”

On your dinner plate and in your body: The most dangerous pesticide you’ve never heard of, by Staffan Dahllöf, Investigative Reporting Denmark. “The poisonous effect of chlorpyrifos on insects is not disputed. The unresolved question is to what extent the usage of chlorpyrifos is dangerous to all living organisms like fish in nearby waters or farm workers in the fields, or to anybody eating the treated products.”

Neurotoxins on your kid’s broccoli: that’s life under Trump, by Carey Gillam, The Guardian. “How much is your child’s health worth? The answer coming from the leadership of the US Environmental Protection Agency is: not that much… So here we are – with scientific concerns for the safety of our innocent and vulnerable children on one side and powerful, wealthy corporate players on the other. Our political and regulatory leaders have shown whose interests they value most.”

Common Insecticide May Harm Boys’ Brains More Than Girls, by Brett Israel, Environmental Health News. “In boys, exposure to chlorpyrifos in the womb was associated with lower scores on short-term memory tests compared with girls exposed to similar amounts.“

More science fact sheets on chemicals in our food 

Find more U.S. Right to Know fact sheets:

Aspartame: Decades of Science Point to Serious Health Risks

Glyphosate Fact Sheet: Cancer and Other Health Concerns

Dicamba Fact Sheet 

U.S. Right to Know is an investigative public health group working globally to expose corporate wrongdoing and government failures that threaten the integrity of our food system, our environment and our health.  You can donate here to our investigations and sign up for our weekly newsletter.  

California Supreme Court denies review of Monsanto Roundup trial loss

Print Email Share Tweet

The California Supreme Court will not review a California man’s trial win over Monsanto, dealing another blow to Monsanto’s German owner, Bayer AG.

The decision to deny a review in the case of Dewayne “Lee” Johnson marks the latest in a string of court losses for Bayer as it tries to complete settlements with close to 100,000 plaintiffs who each claim they or their loved ones developed non-Hodgkin lymphoma from exposure to Roundup and other Monsanto weed killers. Juries in each of three trials held to date have found not only that the company’s glyphosate-based herbicides cause cancer but also that Monsanto spent decades hiding the risks.

“We are disappointed with the Court’s decision not to review the intermediate appeals court’s decision in Johnson and will consider our legal options for further review of this case,” Bayer said in a statement.  

The Miller Firm, Johnson’s Virginia-based law firm, said the California Supreme Court’s decision denied “Monsanto’s latest attempt to skirt responsibility” for causing Johnson’s cancer.

“Multiple judges have now affirmed the jury’s unanimous finding that Monsanto maliciously  concealed Roundup’s cancer risk and caused Mr. Johnson to develop a deadly form of cancer. The time has come for Monsanto to end its baseless appeals and pay Mr. Johnson the money it owes him,” the firm said.

A unanimous jury found in August 2018 that exposure to Monsanto’s herbicides  caused Johnson to develop a deadly form of non-Hodgkin lymphoma. The jury further found that Monsanto acted to hide the risks of its products in conduct so egregious that the company should pay Johnson $250 million in punitive damages on top of $39 million in past and future compensatory damages.

Upon appeal from Monsanto, the trial judge reduced the $289 million to $78 million. An appeals court then cut the award to $20.5 million, citing the fact that Johnson was expected to live only a short time.

The appeals court said it reduced the damages award despite finding there was “abundant” evidence that glyphosate, together with the other ingredients in Roundup products, caused Johnson’s cancer and that “there was overwhelming evidence that Johnson has suffered, and will continue to suffer for the rest of his life, significant pain and suffering.”

Both Monsanto and Johnson sought review by the California Supreme Court, with Johnson asking for restoration of a higher damage award and Monsanto seeking to reverse the trial judgment.

Bayer has reached settlements with several of the leading law firms who collectively represent a significant share of the claims brought against Monsanto. In June, Bayer said it would provide $8.8 billion to $9.6 billion to resolve the litigation.

Bayer’s Monsanto headache persists

Print Email Share Tweet

The migraine that is Monsanto doesn’t appear to be going away anytime soon for Bayer AG.

Efforts at settling the mass of lawsuits brought in the United States by tens of thousands of people who claim Monsanto’s Roundup herbicides gave them cancer continue to inch forward, but are not addressing all outstanding cases, nor are all plaintiffs offered settlements agreeing to them.

In a letter to U.S. District Judge Vince Chhabria, Texas attorney David Diamond said that representations made by the lawyers leading settlement talks with Bayer on behalf of plaintiffs did not accurately reflect the situation for his own clients. He cited a “lack” of “settlement-related experiences” with Bayer and he requested that Judge Chhabria advance several of Diamond’s cases forward for trials.

“Leadership’s representations regarding settlement do not represent my clients’ settlement
related experiences, interests or position,” Diamond told the judge.

Diamond wrote in the letter that he has 423 Roundup clients, including 345 who have cases pending before Chhabria in the multidistrict litigation (MDL) in the U.S. District Court for the Northern District of California. Alongside the MDL are thousands of plaintiffs whose cases are pending in state courts.

Diamond’s outreach to the judge followed a hearing late last month in which several of the leading firms in the litigation and lawyers for Bayer told Chhabria they were close to resolving most, if not all, of the cases before the judge.

Bayer has reached important settlements with several of the leading law firms who collectively represent a significant share of the claims brought against Monsanto. In June, Bayer said it would provide $8.8 billion to $9.6 billion to resolve the litigation.

But controversy and conflict have dogged the overall settlement offers.

Several plaintiffs represented by the large firms and who spoke on condition that their names not be used, said they are not agreeing to the terms of the settlements, meaning their cases will be directed into mediation and, if that fails, to trials.

After buying Monsanto in 2018, Bayer has been struggling to figure out how to put an end to the litigation that includes more than 100,000 plaintiffs. The company lost all three of the three trials held to date and has lost the early rounds of appeals seeking to overturn the trial losses. Juries in each of the trials found that Monsanto’s glyphosate-based herbicides, such as Roundup, do cause cancer and that Monsanto spent decades hiding the risks.

The company’s efforts to resolve the litigation have been stymied in part by the challenge of how to head off claims that could be brought in the future by people who develop cancer after using the company’s herbicides.

Problems Just Keep Mounting  

Bayer has threatened to file for bankruptcy if it cannot quell the Roundup litigation and on Wednesday the company issued a profit warning and announced billions in cost cuts, citing a “lower than expected outlook in the agricultural market” amid other factors. The news sent shares in the company tumbling.

In reporting Bayer’s troubles Barron’s noted: “The problems just keep mounting for Bayer and its investors, who by now must be used to regular bouts of disappointing news. The stock has now fallen more than 50% since the Monsanto deal was closed in June 2018. “This latest update only adds to the case for the Monsanto deal being one of the worst in corporate history.”

Glyphosate Fact Sheet: Cancer and Other Health Concerns

Print Email Share Tweet

Glyphosate, a synthetic herbicide patented in 1974 by the Monsanto Company and now manufactured and sold by many companies in hundreds of products, has been associated with cancer and other health concerns. Glyphosate is best known as the active ingredient in Roundup-branded herbicides, and the herbicide used with “Roundup Ready” genetically modified organisms (GMOs).

Herbicide tolerance is the most prevalent GMO trait engineered into food crops, with some 90% of corn and 94% of soybeans in the U.S. engineered to tolerate herbicides, according to USDA data. A 2017 study found that Americans’ exposure to glyphosate increased approximately 500 percent since Roundup Ready GMO crops were introduced in the U.S in 1996. Here are some key facts about glyphosate:

Most Widely Used Pesticide

According to a February 2016 study, glyphosate is the most widely used pesticide: “In the U.S., no pesticide has come remotely close to such intensive and widespread use.” Findings include:

  • Americans have applied 1.8 million tons of glyphosate since its introduction in 1974.
  • Worldwide 9.4 million tons of the chemical has been sprayed on fields – enough to spray nearly half a pound of Roundup on every cultivated acre of land in the world.
  • Globally, glyphosate use has risen almost 15-fold since Roundup Ready GMO crops were introduced.

Statements from scientists and health care providers 

Cancer Concerns

The scientific literature and regulatory conclusions regarding glyphosate and glyphosate-based herbicides show a mix of findings, making the safety of the herbicide a hotly debated subject. 

In 2015, the World Health Organization’s International Agency for Research on Cancer (IARC) classified glyphosate as “probably carcinogenic to humans” after reviewing years of published and peer-reviewed scientific studies. The team of international scientists found there was a particular association between glyphosate and non-Hodgkin lymphoma.

U.S. agencies: At the time of the IARC classification, the Environmental Protection Agency (EPA) was conducting a registration review. The EPA’s Cancer Assessment Review Committee (CARC) issued a report in September 2016 concluding that glyphosate was “not likely to be carcinogenic to humans” at doses relevant to human health. In December 2016, the EPA convened a Scientific Advisory Panel to review the report; members were divided in their assessment of EPA’s work, with some finding the EPA erred in how it evaluated certain research. Additionally, the EPA’s Office of Research and Development determined that EPA’s Office of Pesticide Programs had not followed proper protocols in its evaluation of glyphosate, and said the evidence could be deemed to support a “likely” carcinogenic or “suggestive” evidence of carcinogenicity classification. Nevertheless the EPA issued a draft report on glyphosate in December 2017 continuing to hold that the chemical is not likely to be carcinogenic. In April 2019, the EPA reaffirmed its position that glyphosate poses no risk to public health. But earlier that same month, the U.S. Agency for Toxic Substances and Disease Registry (ATSDR) reported that there are links between glyphosate and cancer. According to the draft report from ATSDR, “numerous studies reported risk ratios greater than one for associations between glyphosate exposure and risk of non-Hodgkin’s lymphoma or multiple myeloma.” 

The EPA issued an Interim Registration Review Decision in January 2020 with updated information about its position on glyphosate. 

European Union: The European Food Safety Authority and the European Chemicals Agency have said glyphosate is not likely to be carcinogenic to humans. A March 2017 report by environmental and consumer groups argued that regulators relied improperly on research that was directed and manipulated by the chemical industry. A 2019 study found that Germany’s Federal Institute for Risk Assessment report on glyphosate, which found no cancer risk, included sections of text that had been plagiarized from Monsanto studies.  In February 2020, reports surfaced that 24 scientific studies submitted to the German regulators to prove the safety of glyphosate came from a large German laboratory that has been accused of fraud and other wrongdoing.

WHO/FAO Joint Meeting on Pesticide Residues determined in 2016 that glyphosate was unlikely to pose a carcinogenic risk to humans from exposure through the diet, but this finding was tarnished by conflict of interest concerns after it came to light that the chair and co-chair of the group also held leadership positions with the International Life Sciences Institute, a group funded in part by Monsanto and one of its lobbying organizations.

California OEHHA: On March 28, 2017, the California Environmental Protection Agency’s Office of Environmental Health Hazard Assessment confirmed it would add glyphosate to California’s Proposition 65 list of chemicals known to cause cancer. Monsanto sued to block the action but the case was dismissed. In a separate case, the court found that California could not require cancer warnings for products containing glyphosate. On June 12, 2018, a U.S. District Court denied the California Attorney General’s request for the court to reconsider the decision. The court found that California could only require commercial speech that disclosed “purely factual and uncontroversial information,” and the science surrounding glyphosate carcinogenicity was not proven.

Agricultural Health Study: A long-running U.S. government-backed prospective cohort study of farm families in Iowa and North Carolina has not found any connections between glyphosate use and non-Hodgkin lymphoma, but the researchers reported that “among applicators in the highest exposure quartile, there was an increased risk of acute myeloid leukemia (AML) compared with never users…” The most recent published update to the study was made public in late 2017.

Recent studies linking glyphosate to cancer and other health concerns 

Cancer

Endocrine disruption, fertility and reproductive concerns 

Liver disease 

  • A 2017 study associated chronic, very low-level glyphosate exposures to non-alcoholic fatty liver disease in rats. According to the researchers, the results “imply that chronic consumption of extremely low levels of a GBH formulation (Roundup), at admissible glyphosate-equivalent concentrations, are associated with marked alterations of the liver proteome and metabolome,” the biomarkers for NAFLD.

Microbiome disruption 

  • A 2020 literature review of glyphosate’s effects on the gut microbiome concludes that, “glyphosate residues on food could cause dysbiosis, given that opportunistic pathogens are more resistant to glyphosate compared to commensal bacteria.” The paper continues, “Glyphosate may be a critical environmental trigger in the etiology of several disease states associated with dysbiosis, including celiac disease, inflammatory bowel disease and irritable bowel syndrome. Glyphosate exposure may also have consequences for mental health, including anxiety and depression, through alterations in the gut microbiome.”
  • A 2018 rat study conducted by the Ramazzini Institute reported that low-dose exposures to Roundup at levels considered safe significantly altered the gut microbiota in some of the rat pups.
  • Another 2018 study reported that higher levels of glyphosate administered to mice disrupted the gut microbiota and caused anxiety and depression-like behaviors.

Harmful impacts bees and monarch butterflies.

Cancer lawsuits

More than 42,000 people have filed suit against Monsanto Company (now Bayer) alleging that exposure to Roundup herbicide caused them or their loved ones to develop non-Hodgkin lymphoma (NHL), and that Monsanto covered up the risks. As part of the discovery process, Monsanto has had to turn over millions of pages of internal records. We are posting these Monsanto Papers as they become available. For news and tips about the ongoing legislation, see Carey Gillam’s Roundup Trial Tracker. The first three trials ended in large awards to plaintiffs for liability and damages, with juries ruling that Monsanto’s weed killer was a substantial contributing factor in causing them to develop NHL. Bayer is appealing the rulings. 

Monsanto influence in research: In March 2017, the federal court judge unsealed some internal Monsanto documents that raised new questions about Monsanto’s influence on the EPA process and about the research regulators rely on. The documents suggest that Monsanto’s long-standing claims about the safety of glyphosate and Roundup do not necessarily rely on sound science as the company asserts, but on efforts to manipulate the science

More information about scientific interference:

Sri Lankan scientists awarded AAAS freedom award for kidney disease research

The AAAS has awarded two Sri Lankan scientists, Drs. Channa Jayasumana and Sarath Gunatilake, the 2019 Award for Scientific Freedom and Responsibility for their work to “investigate a possible connection between glyphosate and chronic kidney disease under challenging circumstances.” The scientists have reported that glyphosate plays a key role in transporting heavy metals to the kidneys of those drinking contaminated water, leading to high rates of chronic kidney disease in farming communities. See papers in  SpringerPlus (2015), BMC Nephrology (2015), Environmental Health (2015), International Journal of Environmental Research and Public Health (2014). The AAAS award had been suspended amidst a fierce opposition campaign by pesticide industry allies to undermine the work of the scientists. After a review, the AAAS reinstated the award

Desiccation: another source of dietary exposures 

Some farmers use glyphosate on non-GMO crops such as wheat, barley, oats, and lentils to dry down the crop ahead of harvest in order to accelerate the harvest. This practice, known as desiccation, may be a significant source of dietary exposure to glyphosate.

Glyphosate in food: U.S. drags its feet on testing

The USDA quietly dropped a plan to start testing food for residues of glyphosate in 2017. Internal agency documents obtained by U.S. Right to Know show the agency had planned to start testing over 300 samples of corn syrup for glyphosate in April 2017. But the agency killed the project before it started. The U.S. Food and Drug Administration began a limited testing program in 2016, but the effort was fraught with controversy and internal difficulties and the program was suspended in September 2016. Both agencies have programs that annually test foods for pesticide residues but both have routinely skipped testing for glyphosate.

Before the suspension, one FDA chemist found alarming levels of glyphosate in many samples of U.S. honey, levels that were technically illegal because there have been no allowable levels established for honey by the EPA. Here is a recap of news about glyphosate found in food:

Pesticides in our food: Where’s the safety data?

USDA data from 2016 shows detectable pesticide levels in 85% of more than 10,000 foods sampled, everything from mushrooms to grapes to green beans. The government says there are little to no health risks, but some scientists say there is little to no data to back up that claim. See “Chemicals on our food: When “safe” may not really be safe: Scientific scrutiny of pesticide residue in food grows; regulatory protections questioned,” by Carey Gillam (11/2018).

Roundup cancer trials still a threat to Bayer, but settlement talks progressing

Print Email Share Tweet

Lawyers for Monsanto owner Bayer AG and for plaintiffs suing Monsanto told a federal judge on Thursday that they were continuing to make progress in settling sweeping nationwide litigation brought by people who claim Monsanto’s Roundup caused them to develop cancer.

In a video hearing, Bayer lawyer William Hoffman told U.S. District Judge Vince Chhabria the company had reached deals – or was close to reaching deals – to resolve more than 3,000 lawsuits that are grouped together in multidistrict litigation (MDL) filed in U.S. District Court for the Northern District of California.

The company separately has already settled thousands of cases outside the MDL, cases that have been proceeding through state courts. But controversy and conflict have dogged the overall settlement offers, with allegations from some plaintiffs’ firms that Bayer reneged on agreements reached months ago, and some plaintiffs’ firms unwilling to agree to what they consider inadequate offers from Bayer.

There was no discussion of those complaints, however,  in Thursday’s hearing, with both sides expressing optimistic views.

“The company has moved forward and finalized several agreements with firms…. we’re also hopefully going to finalize additional agreements in the next several days,” Hoffman told the judge.

“Where we are right now… these figures are somewhat estimates but I think they are reasonably close: There are approximately 1,750 cases that are subject to agreements between the company and law firms and another approximately 1,850 to 1,900 cases that are in various stages of discussion right now,” Hoffman said. “We are working to put in place a program to accelerate discussions and hopefully bring agreements to fruition with those firms.”

Plaintiffs’ lawyer Brent Wisner told the judge it was important to note that there remain a “handful of cases” within the MDL that are not settled yet. But, he said – “We anticipate they will be shortly.”

Judge Chhabria said that given the progress he will continue a stay of the Roundup litigation until November 2 but that he will start moving cases to trial if they are not resolved by that point.

Bayer Bad Dealing Alleged

The cooperative tone expressed in Thursday’s hearing was a far cry from a hearing held last month when plaintiffs’ attorney Aimee Wagstaff  told Judge Chhabria that Bayer was not honoring tentative settlement agreements made in March and intended for finalization in July.

Bayer announced in June that it had reached a $10 billion settlement with U.S. law firms to resolve most of more than 100,000 Roundup cancer claims. But at that time the only major law firms leading the litigation that had final signed agreements with Bayer were The Miller Firm and Weitz & Luxenburg.

The Miller Firm’s deal alone totaled $849 million to cover the claims of more than 5,000 Roundup clients, according to settlement documents.

The  California-based Baum Hedlund Aristei &  Goldman law firm; the Andrus Wagstaff firm from Colorado; and the Moore Law Group of Kentucky had tentative deals but not final agreements.

According to a letter written by Wagstaff filed with the court, Bayer requested repeated extensions until the deal with her firm fell apart in mid-August. After reporting the issues to Judge Chhabria, the settlement talks resumed and were ultimately resolved with the three firms this month.

Some details of how the settlements will be administered were filed earlier this week in a court in Missouri. The Garretson Resolution Group, Inc., doing business as Epiq Mass Tort, will act as the
Lien Resolution Administrator,” for instance, for clients of Andrus Wagstaff whose settlement dollars will need to be used in part or in whole to repay cancer treatment expenses paid by Medicare.

Bayer bought Monsanto in 2018 just as the first Roundup cancer trial was getting underway. It has since lost all three of the three trials held to date and has lost the early rounds of appeals seeking to overturn the trial losses. Juries in each of the trials found that Monsanto’s herbicides do cause cancer and that Monsanto spent decades hiding the risks.

The jury awards totaled well over $2 billion, though the judgments have been ordered reduced by trial and appellate court judges.

Bayer had threatened to file for bankruptcy if no nationwide settlement was reached, according to communications from the plaintiffs’ firms to their clients.

Thailand’s reversal on glyphosate ban came after Bayer scripted U.S. intervention, documents show

Print Email Share Tweet

A year ago Thailand was set to ban the widely used weed killing chemical glyphosate, a move applauded by public health advocates because of evidence the chemical causes cancer, along with other harms to people and the environment.

But under heavy pressure from U.S. officials, Thailand’s government reversed the planned ban on glyphosate last November and delayed imposing bans on two other agricultural pesticides despite the fact that the country’s National Hazardous Substances Committee said a ban was necessary to protect consumers.

A ban, particularly on glyphosate, would “severely impact” Thai imports of soybeans, wheat and other agricultural commodities, U.S. Department of Agriculture Undersecretary Ted McKinney warned Thailand Prime Minister Prayuth Chan-Ocha in pushing for the reversal. Imports could be impacted because those commodities, and many others, typically are laced with residues of glyphosate.

Now, newly revealed emails between government officials and Monsanto parent Bayer AG show that McKinney’s actions, and those taken by other U.S. government officials to convince Thailand not to ban glyphosate, were largely scripted and pushed by Bayer.

The emails were obtained through a Freedom of Information Act request by the Center for Biological Diversity, a nonprofit conservation organization. The group sued the U.S. Department of Agriculture (USDA) and the U.S. Department of Commerce on Wednesday seeking additional public records regarding the actions of the departments of trade and agriculture in pressuring Thailand on the glyphosate issue. There are several documents the government has thus far refused to release regarding communications with Bayer and other companies, the organization said.

“It’s bad enough that this administration has ignored independent science to blindly support Bayer’s self-serving assertions of glyphosate’s safety,” said Nathan Donley, a senior scientist at the Center for Biological Diversity. “But to then act as Bayer’s agent to pressure other countries to adopt that position is outrageous.”

Glyphosate is the active ingredient in Roundup herbicides and other brands developed by Monsanto, which are worth billions of dollars in annual sales. Bayer bought Monsanto in 2018 and has been struggling ever since to suppress mounting global concerns about scientific research showing that glyphosate herbicides can cause a blood cancer called non-Hodgkin lymphoma. The company is also fighting off lawsuits involving more than 100,000 plaintiffs who claim their development of non-Hodgkin lymphoma was caused by exposure to Roundup and other Monsanto glyphosate-based herbicides.

Glyphosate weed killers are the most widely used herbicides in the world, in large part because Monsanto developed genetically engineered crops that tolerate being sprayed directly with the chemical. Though useful to farmers in keeping fields free of weeds, the practice of spraying herbicide over the tops of growing crops leaves varying levels of the pesticide in both raw grain and finished foods. Monsanto and U.S. regulators maintain pesticide levels in food and livestock feed are not harmful to humans or livestock, but many scientists disagree and say even trace amounts can be dangerous.

Different countries set different legal levels for what they determine to be safe amounts of the weed killer in food and raw commodities. Those “maximum residue levels” are referred to as MRLs. The U.S. allows the highest MRLs of glyphosate in food when compared to other countries.

If Thailand banned glyphosate, the allowed level of glyphosate in food likely would be zero, Bayer warned U.S. officials.

High-level help

The emails show that in September 2019 and again in early October of 2019 James Travis, senior director for Bayer international government affairs and trade, sought assistance in reversing the glyphosate ban from multiple high-level officials from the USDA and the Office of the United States Trade Representative (USTR).

Among those Bayer sought aid from was Zhulieta Willbrand, who at that time was chief of staff of trade and foreign agricultural affairs at the U.S. Department of Agriculture.  After Thailand’s decision to reverse the ban on glyphosate, Willbrand was hired to work directly for Bayer on international trade matters.

When asked if the assistance from Willbrand while she was a government official helped her get a job at Bayer, the company said that it “ethically strives” to hire people from “all backgrounds” and any inference that she was hired for any reason other than the immense talent she brings to Bayer is false.”

In an email to Willbrand dated Sept. 18, 2019, Travis told her Bayer thought there was “real value” for U.S. government engagement on the glyphosate ban, and he noted that Bayer was organizing other groups to protest the ban as well.

“On our end, we are educating farmer groups, plantations and business partners so that they too can articulate concerns and the need for a rigorous, science based process,” Travis wrote to Willbrand. Willbrand then forwarded the email to McKinney, the USDA’s Under Secretary for Trade and Foreign Agricultural Affairs.

In an Oct. 8, 2019, email string with the subject line “Summary of Thailand Ban – Developments Moving Quickly,” Travis wrote to Marta Prado, deputy assistant U.S. Trade Representative for Southeast Asia and the Pacific, copying Willbrand and others, to update them on the situation.

Travis wrote that Thailand looked poised to ban glyphosate at a “dramatically” accelerated pace, by December 1, 2019. Along with glyphosate, the country was planning to also ban chlorpyrifos, an insecticide made popular by Dow Chemical that is known to damage babies’ brains; and paraquat, a herbicide scientists say causes the nervous system disease known as Parkinson’s.

Travis pointed out the risk a glyphosate ban would pose to sales of U.S. commodities because of the MRL issue and provided other background material the officials could use to engage with Thailand.

“In light of recent developments, we are growing more concerned that some policymakers and lawmakers are rushing the process and will not thoroughly consult all farming stakeholders nor fully consider the economic and environmental impact of banning glyphosate,” Travis wrote to the U.S. officials.

The email exchanges show that Bayer and U.S. officials discussed potential personal motivations of Thai officials and how such intelligence could be useful. “Knowing what motivates her may help with USG counter arguments,” one U.S. official wrote to Bayer about one Thai leader.

Travis suggested that U.S. officials engage much as they had with Vietnam when that country moved in April 2019 to ban glyphosate.

Shortly after the appeal from Bayer, McKinney wrote to the Thailand Prime Minister about the matter. In an Oct. 17, 2019 letter McKinney, who previously worked for Dow Agrosciences, invited Thailand officials to Washington for an in-person discussion about glyphosate safety and the Environmental Protection Agency’s determination that glyphosate “poses no meaningful risk to human health when used as authorized.”

“Should a ban be implemented it would severely impact Thailand’s imports of agricultural commodities such as soybean and wheat,” McKinney wrote. “I urge you to delay a decision on glyphosate until we can arrange an opportunity for U.S. technical experts to share the most relevant information to address Thailand’s concerns.”

A little more than a month later, on Nov. 27, Thailand reversed the planned glyphosate ban. It also said it would delay bans on paraquat and chlorpyrifos for several months.

Thailand did finalize bans of paraquat and chlorpyrifos on June 1, of this year. But glyphosate remains in use. 

When asked about its engagement with U.S. officials on the issue, Bayer issued the following statement:

Like many companies and organizations operating in highly regulated industries, we provide information and contribute to science-based policymaking and regulatory processes. Our engagements with all those in the public sector are routine, professional, and consistent with all laws and regulations.

The Thai authorities’ reversal of the ban on glyphosate is consistent with the science-based determinations by regulatory bodies around the world, including in the United StatesEuropeGermanyAustraliaKoreaCanadaNew ZealandJapan and elsewhere that have repeatedly concluded that our glyphosate-based products can be used safely as directed.

 Thai farmers have used glyphosate safely and successfully for decades to produce essential crops including cassava, corn, sugar cane, fruits, oil palm, and rubber. Glyphosate has helped farmers to improve their livelihoods and meet community expectations of safe, affordable food that is produced sustainably.”

 

Dying man asks California Supreme Court to restore jury award in Monsanto Roundup case

Print Email Share Tweet

The school groundskeeper who won the first-ever trial over allegations that Monsanto’s Roundup causes cancer is asking the California Supreme Court to restore $250 million in punitive damages awarded by the jury who heard his case but then slashed by an appeals court to $20.5 million.

Notably, the appeal by plaintiff Dewayne “Lee” Johnson has larger implications than his own individual case. Johnson’s lawyer are urging the court to address a legal twist that can leave people such as Johnson who are facing death in the near term with lower damage awards than others expected to live many years in suffering and pain.

“It is long past time for California courts to recognize, as other courts do, that life itself has value and that those who maliciously deprive a plaintiff of years of life should be made to fully compensate that plaintiff and be punished accordingly,” Johnson’s attorneys wrote in their request for the state supreme court review. “The jury ascribed meaningful value to Mr. Johnson’s life, and for that he is grateful. He asks this Court to respect the jury’s decision and restore that value. ”

A unanimous jury found in August 2018 that exposure to Monsanto’s glyphosate-based herbicides, known best by the brand name Roundup, caused Johnson to develop non-Hodgkin lymphoma. The jury further found that Monsanto acted to hide the risks of its products in conduct so egregious that the company should pay Johnson $250 million in punitive damages on top of $39 million in past and future compensatory damages.

Upon appeal from Monsanto, which was purchased by the German company Bayer AG in 2018, the trial judge reduced the $289 million to $78 million. Monsanto appealed seeking either a new trial or a reduced award. Johnson cross-appealed seeking reinstatement of his full damage award.

The appeals court in the case then cut the award to $20.5 million, citing the fact that Johnson was expected to live only a short time.

The appeals court reduced the damages award despite finding there was “abundant” evidence that glyphosate, together with the other ingredients in Roundup products, caused Johnson’s cancer and that “there was overwhelming evidence that Johnson has suffered, and will continue to suffer for the rest of his life, significant pain and suffering.”

The Johnson trial was covered by media outlets around the world and put a spotlight on Monsanto’s efforts to manipulate the scientific record on glyphosate and Roundup and its efforts to quiet critics and influence regulators.  Lawyers for Johnson presented jurors with internal company emails and other records showing Monsanto scientists discussing ghostwriting scientific papers to try to shore up support for the safety of the company’s products, along with communications detailing plans to discredit critics, and to quash a government evaluation of the toxicity of glyphosate, the key chemical in Monsanto’s products.

Johnson’s trial victory spurred a frenzied filing of tens of thousands of additional lawsuits. Monsanto lost three out of three trials before agreeing this June to pay more than $10 billion to settle close to 100,000 such claims.

The settlement is still in flux, however, as Bayer wrestles with how to forestall future litigation.

In an interview, Johnson said he knew the legal battle with Monsanto could continue for many more years but he was committed to trying to hold the company accountable. He has managed to keep his illness in check so far with regular chemotherapy and radiation treatments, but is not certain how long that will continue.

“I don’t think any amount would be enough to punish that company,” Johnson said.

Appeals court denies Monsanto bid for Roundup case rehearing

Print Email Share Tweet

A California appeals court on Tuesday rejected Monsanto’s effort to trim $4 million from the amount of money it owes a California groundskeeper who is struggling to survive cancer that a jury found was caused by the man’s exposure to Monsanto’s Roundup herbicides.

The Court of Appeal for the First Appellate District of California also rejected the company’s request for a rehearing of the matter.  The court’s decision followed its ruling last month slamming Monsanto  for its denial of the strength of the evidence that its glyphosate-based weed killers cause cancer. In that July ruling, the court said that plaintiff Dewayne “Lee” Johnson had presented “abundant” evidence that Monsanto’s weed killer caused his cancer.  “Expert after expert provided evidence both that Roundup products are capable of causing non-Hodgkin’s lymphoma…  and caused Johnson’s cancer in particular,” the appeals court stated in its July decision.

In that decision from last month, the appeals court did, however, cut the damage award owed to Johnson, ordering Monsanto to pay $20.5 million, down from $78 million ordered by the trial judge and down from $289 million ordered by the jury who decided Johnson’s case in August 2018.

In addition to the $20.5 million Monsanto owes Johnson, the company is ordered to pay $519,000 in costs.

Monsanto, which was bought by Bayer AG in 2018, had urged the court to cut the award to Johnson to $16.5 million.

Dicamba decision also stands

Tuesday’s court decision followed a decision issued Monday by the U.S. Court of Appeals for the Ninth Circuit denying a rehearing of the court’s June decision to vacate the approval of the dicamba-based weed killing product Bayer inherited from Monsanto. That June ruling also effectively banned dicamba-based herbicides made by BASF and Corteva Agriscience.

The companies had petitioned for a broader group of judges from the Ninth Circuit judges to rehear the case, arguing that the decision to revoke regulatory approvals for the products was unfair. But the court flatly rejected that rehearing request.

In its June decision, the Ninth Circuit said the Environmental Protection Agency (EPA) had violated the law when it approved the dicamba products developed by Monsanto/Bayer, BASF and Corteva.

The court ordered an immediate ban on use of each of the company’s dicamba products, finding that the EPA “substantially understated the risks” of the dicamba herbicides and “failed entirely to acknowledge other risks.”

The court decision banning the company’s dicamba products triggered an uproar in farm country because many soybean and cotton farmers planted millions of acres of genetically altered dicamba-tolerant crops developed by Monsanto with the intent of treating weeds in those fields with the dicamba herbicides made by the three companies. Similar to “Roundup Ready” glyphosate-tolerant crops, the dicamba-tolerant crops allow farmers to spray dicamba over their fields tyo kill weeds without harming their crops.

When Monsanto, BASF and DuPont/Corteva rolled out their dicamba herbicides a few years ago they  claimed the products would not volatize and drift into neighboring fields as older versions of dicamba weed killing products were known to do. But those assurances proved false amid widespread complaints of dicamba drift damage.

More than one million acres of crops not genetically engineered to tolerate dicamba were reported damaged last year in 18 states, the federal court noted in its June ruling.

Bayer asks appeals court to again cut Roundup damage award owed to California groundskeeper with cancer

Print Email Share Tweet

Bayer is asking a California appeals court to trim $4 million from the amount of money it owes a California groundskeeper struggling to survive cancer that a trial court found was caused by the man’s exposure to Monsanto’s Roundup herbicides.

In a “petition for rehearing” filed Monday with the Court of Appeal for the First Appellate District of California, lawyers for Monsanto and its German owner Bayer AG asked the court to cut from $20.5 million to $16.5 million the damages awarded to Dewayne “Lee” Johnson.

The appeals court “reached an erroneous decision based on a mistake of law,” according to the filing by Monsanto. The issue turns on how long Johnson is expected to live. Because evidence at trial found Johnson was expected to live “no more than two years,” he should not receive money for future pain and suffering allocated for any longer than two years – despite the fact that he continues to outlive predictions, the company argues.

Under the calculations requested by Monsanto, the court should cut from $4 million to $2 million the amount ordered for future non-economic damages, (pain and suffering.) That would reduce the overall compensatory damages (past and future) to $8,253,209. While still insisting it should not owe any punitive damages, if punitive damages are awarded they should be tallied at no more than a 1-to-1 ratio against the compensatory, bringing the total to $16,506,418, Monsanto argues in its filing.

Johnson was initially awarded $289 million by a jury in August 2018, making him the first plaintiff to win at the trial level over claims that exposure to Monsanto’s glyphosate-based herbicides causes non-Hodgkin lymphoma and that Monsanto hid the risks. The trial judge lowered the award to $78 million. Monsanto appealed seeking either a new trial or a reduced award. Johnson cross-appealed seeking reinstatement of his full damage award.

The appeals court ruled last month that there was “abundant” evidence that glyphosate, together with the other ingredients in Roundup products, caused Johnson’s cancer. And the court found that “there was overwhelming evidence that Johnson has suffered, and will continue to suffer for the rest of his life, significant pain and suffering.”

But the court said damages should be reduced to a total of $20.5 million because of the issue of Johnson’s short life expectancy.

Along with its demand for a further reduction in damages, Monsanto is asking the appeals court to grant a rehearing to “correct its analysis” and “either reverse the judgment with directions to enter judgment
for Monsanto or, at the very least, vacate the award of punitive damages.”

The Johnson trial was covered by media outlets around the world and put a spotlight on Monsanto’s efforts to manipulate the scientific record on glyphosate and Roundup and its efforts to quiet critics and influence regulators.  Lawyers for Johnson presented jurors with internal company emails and other records showing Monsanto scientists discussing ghostwriting scientific papers to try to shore up support for the safety of the company’s products, along with communications detailing plans to discredit critics, and to quash a government evaluation of the toxicity of glyphosate, the key chemical in Monsanto’s products.

Tens of thousands of plaintiffs have filed lawsuits against Monsanto making claims similar to Johnson’s, and two additional trials have taken place since the Johnson trial. Both those trials also resulted in large verdicts against Monsanto. Both are also under appeal.

Bayer’s actions to trim damage awards for Monsanto’s trial losses comes as the company seeks to settle close to 100,000 Roundup cancer claims pending around the United States in various courts. Some plaintiffs are unhappy with the settlement terms, and are threatening not to agree to the deal.

Action in Pilliod Appeal 

In separate appellate action related to the Roundup litigation, last week lawyers for Alva and Alberta Pilliod filed a brief asking the California appeals court to order damages awards for the married couple totaling $575 million. The elderly couple – both stricken with debilitating cancer they blame on exposure to Roundup – won more than $2 billion at trial, but the trial judge then lowered the jury award to $87 million.

The slashing of the damage award was excessive, according to lawyers representing the couple, and does not sufficiently punish Monsanto for its wrongdoing.

“The three California juries, four trial judges, and three appellate justices who have reviewed Monsanto’s misconduct have unanimously agreed there is “substantial evidence that Monsanto acted with a willful and conscious disregard of others’ safety,” the Pilliod brief states.  “Monsanto’s claim that it is the victim of “injustice” in this case rings increasingly hollow in light of these unanimous and repeated findings.”

The lawyers are asking the court to award a 10-to-1 ratio of punitive damages to compensatory damages.

“The true victims of injustice in this case are the Pilliods, who have both suffered from a devastating and debilitating disease because of Monsanto’s malfeasance,” the brief states. “The jury, in determining that decent citizens need not tolerate Monsanto’s reprehensible behavior, rightly concluded that only a substantial punitive damage could punish and deter Monsanto.”

Some U.S. Roundup plaintiffs balk at signing Bayer settlement deals; $160,000 average payout eyed

Print Email Share Tweet

Plaintiffs in the U.S. Roundup litigation are starting to learn the details of what Bayer AG’s $10 billion settlement of cancer claims actually means for them individually, and some are not liking what they see.

Bayer said in late June it had negotiated settlements with several major plaintiffs’ law firms in a deal that would effectively close out the bulk of more than 100,000 pending claims against Monsanto, which was purchased by Bayer in 2018. Plaintiffs in the litigation allege they developed non-Hodgkin lymphoma from exposure to Monsanto’s Roundup and other herbicides made with a chemical called glyphosate, and that Monsanto covered up the risks.

While the deal initially seemed like good news for the plaintiffs – some who’ve struggled for years with cancer treatments and others who sued on behalf of deceased spouses – many are finding they could end up with little to no money, depending upon a range of factors. The law firms, however, could pocket hundreds of millions of dollars.

“It’s a win for the law firms and a slap in the face of the harmed” said one plaintiff, who did not want to be named.

Plaintiffs are being told they must decide in the next few weeks if they’re going to accept the settlements, even though they won’t know how much they will personally be paid until much later. All the settlement deals order the plaintiffs not to talk publicly about the details, threatening them with sanctions if they discuss the settlements with anyone other than “immediate family members” or a financial advisor.

This has angered some who say they are considering rejecting the settlements in favor of seeking out other law firms to handle their claims. This reporter has reviewed documents sent to multiple plaintiffs.

For those who do agree, payments could be made as early as February, though the process of paying all the plaintiffs is expected to stretch out a year or more. Communications sent out from law firms to their Roundup clients sketch out both the process each cancer-stricken individual will need to go through to obtain a financial payout and what those payouts might amount to. The terms of the deals vary from law firm to law firm, meaning similarly situated plaintiffs may end up with vastly different individual settlements.

One of the stronger deals appears to be one negotiated by The Miller Firm, and even that is disappointing to some of the firm’s clients. In communications to clients, the firm said it was able to negotiate roughly $849 million from Bayer to cover the claims of more than 5,000 Roundup clients. The firm estimates the average gross settlement value for each plaintiff at roughly $160,000. That gross amount will further be reduced by the deduction of attorneys’ fees and costs.

Though attorneys’ fees can vary by firm and plaintiff, many in the Roundup litigation are charging 30-40 percent in contingency fees.

To be eligible for the settlement, plaintiffs must have medical records supporting diagnosis of certain types of non-Hodgkin lymphoma and be able to show they were exposed at least a year before their diagnosis.

The Miller Firm has been at the forefront of the Roundup litigation since the outset, unearthing many of the damning internal Monsanto documents that helped win all three Roundup trials held to date. The Miller Firm handled two of those trials, bringing in lawyers from the Los Angeles firm of Baum Hedlund Aristei & Goldman to help with the case of  Dewayne “Lee” Johnson after Miller Firm founder Mike Miller was severely injured in an accident just prior to trial. The two firms additionally worked together in winning the case of husband-and-wife plaintiffs, Alva and Alberta Pilliod.  Johnson was awarded $289 million and the Pilliods were awarded more than $2 billion though the trial judges in each case lowered the awards.

Earlier this month, a California appeals court rejected Monsanto’s effort to overturn the Johnson verdict, ruling that there was “abundant” evidence that Roundup products caused Johnson’s cancer but reducing Johnson’s award to $20.5 million. Appeals are still pending in the other two verdicts against Monsanto.

Scoring Plaintiffs

To determine how much each plaintiff receives from the settlement with Bayer, a third-party administrator will score each individual using factors that include the type of non-Hodgkin lymphoma each plaintiff  developed; the plaintiff’s age at diagnosis; the severity of the person’s cancer and the extent of treatment they endured; other risk factors; and the amount of exposure they had to Monsanto herbicides.

One element of the settlement that caught many plaintiffs off guard was learning that those who ultimately receive money from Bayer will have to use their funds to pay back part of the costs of their cancer treatments that were covered by Medicare or private insurance. With some cancer treatments running into the hundreds of thousands and even millions of dollars, that could quickly erase a plaintiff’s payout. The law firms are lining up third-party contractors who will negotiate with the insurance providers to seek discounted reimbursements, the plaintiffs have been told. Typically in this sort of mass tort litigation, those medical liens can be substantially reduced, the law firms said.

In one aspect of the deal welcomed by plaintiffs, the settlements will be structured to avoid tax liability, according to the information provided to plaintiffs.

Risks in Not Settling  

The law firms must get a majority of their plaintiffs to agree to the terms of the settlements in order for them to proceed. According to the information provided to plaintiffs, settlements are desired now because of a number of risks associated with continuing to pursue additional trials. Among the risks identified:

  • Bayer has threatened to file for bankruptcy, and if the company did take that route, settling Roundup claims would take far longer and likely ultimately result in far less money for plaintiffs.
  • The Environmental Protection Agency (EPA) issued a letter last August telling Monsanto that the agency won’t allow for a cancer warning on Roundup. That helps Monsanto’s future chances of prevailing in court.
  • Covid-related court delays mean additional Roundup trials are unlikely for a year or more.

It is not unusual for plaintiffs in mass tort litigation to walk away disappointed even with seemingly large settlements negotiated for their cases.  The 2019 book “Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation” by Elizabeth Chamblee Burch, the Fuller E. Callaway Chair of Law at the University of Georgia,  makes the case that a lack of checks and balances in mass tort litigation benefits nearly everyone involved except the plaintiffs.

Burch cites as an example litigation over the acid-reflux medicine Propulsid, and said she found that of the 6,012 plaintiffs who entered into the settlement program, only 37 ultimately received any money. The rest received no payouts but had already agreed to dismiss their lawsuits as a condition of entering into the settlement program. Those 37 plaintiffs collectively received little more than $6.5 million (roughly $175,000 each on average), while the lead law firms for the plaintiffs received $27 million, according to Burch,

Setting aside what individual plaintiffs may or may not walk away with,  some legal observers close to the Roundup litigation said a greater good has been achieved with the exposure of corporate wrongdoing by Monsanto.

Among the evidence that has emerged through the litigation are internal Monsanto documents showing the company engineered the publishing of scientific papers that falsely appeared to be created solely by independent scientists; the funding of, and collaborating with, front groups that were used to try to discredit scientists reporting harm with Monsanto’s herbicides; and collaborations with certain officials inside the Environmental Protection Agency (EPA) to protect and promote Monsanto’s position that its products were not cancer-causing.

Several countries around the world, as well as local governments and school districts, have moved to ban glyphosate herbicides, and/or other pesticides because of the revelations of the Roundup litigation.

(Story first appeared in Environmental Health News.)