Bayer settles U.S. Roundup, dicamba and PCB litigation for more than $10 billion

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In an expensive clean-up of Monsanto litigation messes, Bayer AG said Wednesday that it will pay out more than $10 billion to settle tens of thousands of U.S. claims brought against Monsanto over its Roundup herbicide, as well as $400 million to resolve lawsuits over Monsanto’s dicamba herbicide and $650 million for PCB pollution claims.

The resolutions come two years after Bayer bought Monsanto for $63 billion and almost immediately saw share prices plummet due to the Roundup liability.

Bayer announced that it will pay $10.1 billion to $10.9 billion total to resolve roughly 75 percent of the claims by an estimated 125,000 people who allege exposure to Monsanto’s Roundup weed killers caused them to develop non-Hodgkin lymphoma. The deal includes plaintiffs who have retained attorneys with the intent to sue but whose cases have not yet been filed, Bayer said.  Within that total, a payment of $8.8 billion to $9.6 billion will resolve the current litigation and $1.25 billion is being set aside to support potential future litigation, the company said.

The plaintiffs included in the settlement are those signed with the law firms that have been leading the Roundup federal multi-district litigation (MDL) and include The Miller Firm of Virginia, the Baum Hedlund Aristei & Goldman firm of Los Angeles and the Andrus Wagstaff firm of Denver, Colorado.

“After years of hard fought litigation and a year of intense mediation I am glad to see our clients will now be compensated,” said Mike Miller, of the Miller law firm.

The Miller firm and the Baum Hedlund firm worked together to win the first case to go to trial, that of California groundskeeper Dewayne “Lee” Johnson. Andrus Wagstaff won the second trial and The Miller Firm won the third case to go to trial. In all, the three trials resulted in jury verdicts totaling more than $2.3 billion, though the trial judges in each case lowered the verdicts.

The juries in all three trials found that Monsanto’s glyphosate herbicides, such as Roundup, caused non-Hodgkin lymphoma and that Monsanto covered up the risks and failed to warns users.

Each of the three trial verdicts are going through the appeals process now and Bayer said the plaintiffs in those cases are not included in the settlement.

Bayer said future Roundup claims will be part of a class agreement subject to approval by Judge Vince Chhabria of the U.S. District Court for the Northern District of California, who ordered the year-long mediation process that led to the settlement.

The agreement would take any future findings on cancer claims out of the hands of  juries, Bayer said. Instead, there will be the creation of an independent “Class Science Panel.” The Class Science Panel will determine whether Roundup can cause non-Hodgkin lymphoma, and if so, at what minimum exposure levels.  Both the plaintiffs in the class action and Bayer will be bound by the Class Science Panel’s determination.  If the Class Science Panel determines there is no causal connection between Roundup and non-Hodgkin lymphoma then the class members will be barred from claiming otherwise in any future litigation against Bayer.

Bayer said the Class Science Panel’s determination is expected to take several years and class members will not be permitted to proceed with Roundup claims prior to that determination. They also cannot seek punitive damages, Bayer said.

“The Roundup™ agreements are designed as a constructive and reasonable resolution to a unique litigation,” said Kenneth R. Feinberg, the court-appointed mediator for the settlement talks.

Even as they announced the settlement, Bayer officials continued to deny Monsanto’s glyphosate herbicides cause cancer.

“The extensive body of science indicates that Roundup does not cause cancer, and therefore, is not responsible for the illnesses alleged in this litigation,” Bayer CEO Werner Baumann said in a statement.

Dicamba Deal

Bayer also announced a mass tort agreement to settle U.S. dicamba drift litigation, which involves claims from farmers that use of dicamba herbicides developed by Monsanto and BASF to be sprayed over dicamba-tolerant crops developed by Monsanto caused widespread crop loss and injury.

In a trial earlier this year, Monsanto was ordered to pay $265 million to a Missouri peach farmer for dicamba drift damage to his orchard.

More than 100 other farmers have made similar legal claims. Bayer said it will pay up to a total of $400 million to resolve the multi-district dicamba litigation that is pending in the U.S. District Court for the Eastern District of Missouri, with claims for the 2015-2020 crop years. Claimants will be required to provide proof of damage to crop yields and evidence that it was due to dicamba in order to collect. The company expects a contribution from its co-defendant, BASF, towards this settlement.

The settlement will provide “much-needed resources for farmers” who have suffered crop losses due to drifting dicamba herbicides, said lawyer Joseph Peiffer of the Peiffer Wolf law firm, which represents farmers with dicamba claims.

“The settlement announced today is an important step to making things right for the farmers who just want to be able to put food on the table of America and the world,” Peiffer said.

Earlier this month a federal court ruled that the Environmental Protection Agency had violated the law when it approved dicamba herbicides made by Monsanto, BASF and Corteva Agriscience. The court found the EPA ignored the risks of dicamba damage.

PCB Pollution Settlement

Bayer also announced a series of agreements that resolve cases the company said represent most of its  exposure to litigation involving water contamination by PCBs, which Monsanto manufactured until  1977. One agreement establishes a class that includes all local governments with EPA permits involving water discharges impaired by PCBs. Bayer said it will pay a total of approximately $650 million to the class, which will be subject to court approval.

Additionally, Bayer said it has entered into separate agreements with the Attorneys-General of New Mexico, Washington, and the District of Columbia to resolve PCB claims. For these agreements, which are separate from the class, Bayer will make payments totally approximately $170 million.

Bayer said the potential cash outflow will not exceed $5 billion in 2020 and $5 billion in 2021 with the remaining balance to be paid in 2022 or later.

Roundup cancer plaintiffs eagerly await settlement news

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Thousands of cancer patients and their families around the United States were notified this week that a comprehensive settlement of their claims against the former Monsanto Co. should be announced before the end of the month.

Though specific settlement amounts for specific plaintiffs are still to be determined, groups of plaintiffs have been told to expect details of a sweeping financial deal to be publicly announced before a June 30 deadline set for completing the year-long negotiations. All allege they developed non-Hodgkin lymphoma after exposure to Monsanto’s glyphosate-based herbicides, such as Roundup. They additionally allege that the company knew of scientific evidence showing cancer risks associated with its products, but worked to suppress the information to protect its profits.

Lawyers for Monsanto owner Bayer AG and lawyers representing more than 50,000 of the plaintiffs have been engaged in contentious, start-and-stop discussions about a settlement for several months, frustrating families who are struggling financially and emotionally with the strains of fighting cancer.

Many plaintiffs have lost jobs and homes as they deal with costly cancer treatments and some have died while waiting for their cases to be resolved, court records show. Notification of the death of one such plaintiff was made to the federal court in San Francisco on June 1.

Many of the lead law firms with large caseloads have agreed to the terms of a deal that calls for $8 billion-$10 billion to be paid by Bayer in exchange for an agreement that those firms will not file new cancer claims against the company, according to sources close to the litigation.

The amount of money each plaintiff gets will depend upon several factors. The settlements are expected to be structured so they will be tax-free for the plaintiffs.

Some law firms with Roundup plaintiffs have yet to finalize a deal, and settlement meetings were still being held last week, including with the Louisiana-based firm of Pendley, Baudin & Coffin, according to sources close to the litigation.

Bayer spokesman Chris Loder would not confirm the timing or terms of any announcement, saying only that the company had made progress in the negotiations but would “not speculate about settlement outcomes or timing.”

He said any resolution has to be “financially reasonable” and provide “a process to resolve potential future litigation.”

Bayer, which bought Monsanto in June of 2018, has been seeking to put an end to the mass litigation that has driven down the company’s stock, spurred investor unrest, and thrust questionable corporate conduct into a public spotlight.  The first three trials led to three losses for Monsanto and jury awards of more than $2 billion, though trial judges later sharply reduced the awards. Monsanto appealed each of the three losses and is now awaiting an appellate ruling on the first case – Johnson v. Monsanto – after a June 2 oral argument. 

Despite the settlement talks, court proceedings have been continuing on multiple cases. A flurry of lawsuits were recently transferred from state courts into the federal multidistrict Roundup litigation in the U.S. District Court for the Northern District of California in San Francisco. And lawyers for Bayer have been busily filing their answers to the lawsuits.

In the city of St. Louis, Mo., Monsanto’s longtime home-town, the case of Timothy Kane v. Monsanto has a status hearing set for June 15 and a jury trial set to start June 29.  And though it appears very unlikely the case will proceed, on Wednesday lawyers for the chemical giant filed a motion seeking to exclude testimony of one of the witnesses for the plaintiffs.

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EPA thumbs nose at court order, says farmers can still use illegal dicamba herbicides

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(UPDATES with comment from BASF)

The Environmental Protection Agency on Monday declared it would not immediately honor a court ruling handed down last week that banned certain herbicides made by three of the world’s largest chemical companies.

The move by the EPA amounts to a generous gift to BASF, Bayer and Corteva Agrisciences whose dicamba herbicides were deemed by the court to have been approved by the EPA illegally. The court specifically said in its order issued last week that it wanted no delay in vacating those approvals. The court cited damage done by dicamba use in past summers to millions of acres of crops, orchards and vegetable plots across U.S. farm country.

But the EPA announced Monday that it was issuing a “cancellation order” that would give farmers until July 31 to use existing stocks of Bayer’s Xtendimax, BASF’s Engenia, and Corteva’s FeXapan.

The ruling by the U.S. Court of Appeals for the Ninth Circuit found that the EPA made multiple errors in approving the dicamba products and came in response to a petition brought by the National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity, and Pesticide Action Network North America.

The Center for Food Safety (CFS), whose lawyers argued the case for petitioners, said in a statement that the EPA’s action was “disingenuous” and “ignores the well-documented and overwhelming evidence of substantial drift harm to farmers from another disastrous spraying season.” The EPA action also ignores the risks dicamba poses to hundreds of endangered species, CFS said.

“The Trump administration is again showing it has no regard for the rule of law. All users that continue to not seek alternatives should be on notice that they are using a harmful, defective, and unlawful product. We will bring the EPA’s failure to abide by the Court’s order to the Court as expeditiously as possible,” CFS said.

U.S. Secretary of Agriculture Sonny Perdue last week urged the EPA to figure out a way around the court ruling, echoing comments by Bayer, BASF and Corteva that called dicamba herbicides important “tools” for farmers growing genetically engineered soybean and cotton.

The EPA said in deciding to allow farmers to continue to use dicamba through the end of July it was responding to “numerous unsolicited phone calls and emails” telling the agency “there is a real concern and potential for devastation to cotton and soybean crops that could result in a crisis for the industry.”

The EPA did not acknowledge the scores of farmers growing crops other than dicamba-tolerant soybeans and cotton who have suffered crop losses from dicamba drift and fear another summer of crop damage.

Farmers have been using dicamba herbicides for more than 50 years but traditionally avoided applying the herbicide during hot summer months, and rarely if ever over large swaths of land due to the well-known propensity of the chemical to drift far from intended target areas where it could damage crops, gardens, orchards, and shrubs.

Monsanto, which was bought by Bayer in 2018, upended that restraint when it launched dicamba-tolerant soybean and cotton seeds a few years ago, encouraging farmers to spray new formulations of dicamba “over the top” of these genetically engineered crops during warm-weather growing months.

Monsanto’s move to create the dicamba-tolerant crops came after its glyphosate-tolerant crops and widespread spraying of glyphosate created an epidemic of weed resistance across U.S. farmland.

Farmers, agricultural scientists and other experts warned Monsanto and the EPA that introducing a dicamba-tolerant system would not only create more herbicide resistance but would lead to devastating damage to crops that are not genetically engineered to tolerate dicamba.

The companies claimed their new versions of dicamba would not volatize and drift as older versions of dicamba weed killing products were known to do. But those assurances were proven false amid widespread complaints of dicamba drift damage in recent years. More than one million acres of dicamba crop damage was reported last year in 18 states, the court noted.

In February, a unanimous jury awarded a Missouri peach farmer $15 million in compensatory damages and $250 million in punitive damages to be paid by Bayer and BASF for dicamba damage to his property.

In a statement issued after the EPA announcement, BASF  said it supported the EPA’s decision to allow the continued use of existing stocks of BASF’s Engenia herbicide through July 31, but said “additional clarity and flexibility” was required.  The company said it had immediately suspended selling and shipping Engenia herbicide after last week’s ruling. 

The company said it  will continue to pursue re-registration of Engenia with the EPA and is assessing its options to pursue legal remedies to challenge the court order.

UPDATED – Court overturns EPA approval of Bayer dicamba herbicide; says regulator “understated the risks”

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(UPDATES with statement from BASF)

In a stunning rebuke of the Environmental Protection Agency, a federal court on Wednesday overturned the agency’s approval of popular dicamba-based herbicides made by chemical giants Bayer, BASF and Corteva Agrisciences. The ruling effectively makes it illegal for farmers to continue to use the product.

The ruling by the U.S. Court of Appeals for the Ninth Circuit found that the EPA “substantially understated the risks” of the dicamba herbicides and “failed entirely to acknowledge other risks.”

“The EPA made multiple errors in granting the conditional registrations,” the court ruling states.

Monsanto and the EPA had asked the court, if it did agree with the plaintiffs, not to immediately overturn the approvals of the weed killing products. The court said simply: “We decline to do so.”

The lawsuit was brought by the National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity, and Pesticide Action Network North America.

The plaintiffs accused the EPA of breaking the law in evaluating the impacts of a system designed by Monsanto, which was bought by Bayer in 2018, that has triggered “widespread” crop damage over the last few summers and continues to threaten farms across the country.

“Today’s decision is a massive win for farmers and the environment,” said George Kimbrell of the Center for Food Safety, lead counsel in the case. “It is good to be reminded that corporations like Monsanto and the Trump Administration cannot escape the rule of law, particularly at a time of crisis like this. Their day of reckoning has arrived.”

The court found that among other problems, the EPA “refused to estimate the amount of dicamba damage, characterizing such damage as ‘potential’ and ‘alleged,’ when record evidence showed that dicamba had caused substantial and undisputed damage.”

The court also found that the EPA failed to acknowledge that restrictions it placed on the use of the dicamba herbicides would not be followed,  and it determined that the EPA “entirely failed to acknowledge the substantial risk that the registrations would have anticompetitive economic effects in the soybean and cotton industries.”

Finally, the court said, the EPA entirely failed to acknowledge the risk that the new use of dicamba herbicides set up by Monsanto, BASF and Corteva would “tear the social fabric of farming communities.”

Farmers have been using dicamba herbicides for more than 50 years but traditionally avoided applying the herbicide during hot summer months, and rarely if ever over large swaths of land due to the well-known propensity of the chemical to drift far from intended target areas where it could damage crops, gardens, orchards, and shrubs.

Monsanto upended that restraint when it launched dicamba-tolerant soybean and cotton seeds a few years ago, encouraging farmers to spray new formulations of dicamba “over the top” of these genetically engineered crops during warm-weather growing months.

Monsanto’s move to create genetically engineered dicamba-tolerant crops came after its glyphosate-tolerant crops and widespread spraying of glyphosate created an epidemic of weed resistance across U.S. farmland.

Farmers, agricultural scientists and other experts warned Monsanto and the EPA that introducing a dicamba-tolerant system would not only create more herbicide resistance but would lead to devastating damage to crops that are not genetically engineered to tolerate dicamba.

Despite the warnings, Monsanto, along with BASF and Corteva AgriScience all gained approval from the EPA to market new formulations of dicamba herbicides for this widespread type of spraying. The companies claimed their new versions of dicamba would not volatize and drift as older versions of dicamba weed killing products were known to do. But those assurances have proven false amid widespread complaints of dicamba drift damage since the introduction of the new dicamba-tolerant crops and the new dicamba herbicides. More than one million acres of crop damage was reported last year in 18 states, the court noted.

As predicted, there have been thousands of dicamba damage complaints recorded in multiple states. In its ruling, the court noted that in 2018, out of 103 million acres of soybeans and cotton planted in the United States, about 56 million acres were planted with seeds with Monsanto’s dicamba-tolerance trait, up from 27 million acres the year before in 2017.

In February, a unanimous jury awarded a Missouri peach farmer $15 million in compensatory damages and $250 million in punitive damages to be paid by Bayer and BASF for dicamba damage to his property.

Bayer issued a statement following the ruling saying it strongly disagreed with the court ruling and was assessing its options.

“The EPA’s informed science-based decision reaffirms that this tool is vital for growers and does not pose any unreasonable risks of off-target movement when used according to label directions,” the company said. “If the ruling stands, we will work quickly to minimize any impact on our customers this season.”

Corteva also said its dicamba herbicides were needed farmer tools and that it was assessing its options.

BASF called the court order “unprecedented” and said it “has the potential to be devastating to tens of thousands of farmers.”

Farmers could lose “significant revenue” if they are not able to kill weeds in their soybean and cotton fields with the dicamba herbicides, the company said.

“We will use all legal remedies available to challenge this Order,” BASF said.

An EPA spokesman said the agency was currently reviewing the court decision and “will move promptly to address the Court’s directive.”

The court acknowledged the decision could be costly for farmers who have already purchased and/or planted dicamba-tolerant seeds for this season and planned to use the dicamba herbicides on them because the ruling disallows that herbicide use.

“We acknowledge the difficulties these growers may have in finding effective and legal herbicides to protect their (dicamba-tolerant) crops…” the ruling states. “They have been placed in this situation through no fault of their own. However, the absence of substantial evidence to support the EPA’s decision compels us to vacate the registrations.”

Fresh talk of a settlement between Bayer and Roundup cancer patients

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There was renewed talk of a potential settlement this week between Bayer AG and tens of thousands of cancer patients as a key court hearing looms next week.

According to a report in Bloomberg, lawyers for Bayer have reached verbal agreements with U.S. lawyers representing at least 50,000 plaintiffs who are suing Monsanto over claims that Roundup and other Monsanto herbicides caused the plaintiffs to develop non-Hodgkin lymphoma.

The details as reported by Bloomberg appear to be mostly unchanged from prior verbal agreements between Bayer and plaintiffs’ attorneys that fell apart during the Coronavirus-related courthouse closings. With the courthouses still closed, trial dates have been postponed, taking the pressure off Bayer.

But a new pressure point looms with next week’s hearing in the appeal of the first Roundup cancer trial. The California Court of Appeal First Appellate District is set to hear oral arguments on cross-appeals in the case of Johnson v Monsanto  on June 2.

That case, which pitted California groundskeeper Dewayne “Lee” Johnson against Monsanto, resulted in a $289 million damage award for Johnson in August 2018. The jury found not only that Monsanto’s Roundup and related glyphosate-based brands presented a substantial danger to people using them, but that there was “clear and convincing evidence” that Monsanto’s officials acted with “malice or oppression” in failing to adequately warn of the risks.

The trial judge in the Johnson case later lowered the damages to $78.5 million. Monsanto appealed even the reduced award, and Johnson cross-appealed seeking reinstatement of the full jury award.

In appealing the verdict, Monsanto asked the court to either reverse the trial decision and enter a judgment for Monsanto or reverse and remand the case for a new trial. At the very least, Monsanto asked the appeals court to reduce the portion of the jury award for “future noneconomic damages” from $33 million to $1.5 million and to wipe out the punitive damages altogether.

The appeals court judges gave an early hint about how they were leaning on the case, notifying lawyers for the two sides that they should be prepared to discuss the question of damages in the June 2 hearing. Plaintiffs’ attorneys have taken that as an encouraging sign that the judges may not be planning to order a new trial.

Under the terms of the settlement that has been discussed for the last several months, Bayer would pay out a total of $10 billion to bring closure to cases held by several large firms, but would not agree to put warning labels on its glyphosate-based weed killers, as had been demanded by some of the plaintiffs’ attorneys.

The settlement would not cover all of the plaintiffs with pending claims. Nor would it cover Johnson or the other three plaintiffs who already won their claims at trial. Monsanto and Bayer have appealed all the trial losses.

Lawyers at the major firms involved in the litigation declined to discuss the current situation.

Bayer officials have denied there is any scientific evidence linking glyphosate herbicides to cancer, but investors have been pushing for a settlement to resolve the litigation. It would be beneficial to Bayer to settle the cases before any adverse ruling by the appellate court, which could further rattle the company’s shareholders. Bayer bought Monsanto in June of 2018. Following the Johnson trial loss in August 2018, the company’s share price plummeted and has remained under pressure.

Frustrated Plaintiffs

The first lawsuits in the Roundup cancer litigation were filed in late 2015, meaning many plaintiffs have been waiting years for resolution. Some plaintiffs have died while they waited, with their cases now being carried forward by family members frustrated at the lack of progress in bringing cases to a close.

Some plaintiffs have been making video messages directed at Bayer executives, calling for them to agree to settlements and to make changes to warn consumers about potential cancer risks of glyphosate-based herbicides such as Roundup.

Vincent Tricomi, 68, is one such plaintiff. In the video he made, which he shared with US Right to Know, he said he has undergone 12 rounds of chemotherapy and five hospital stays fighting his cancer. After achieving a temporary remission, the cancer recurred earlier this year, he said.

“There are so many like me who are suffering and need relief,” said Tricomi.  Watch his video message below:

Dicamba litigation against Bayer, BASF poised to explode, lawyers say

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Thousands of farmers from multiple states are expected to join mass tort litigation pending in federal court over claims that weed-killing products developed by the former Monsanto Co. and other chemical companies are destroying and contaminating crops, including organic production, a group of lawyers and farmers said on Wednesday.

The number of farmers seeking legal representation to file suit against Monsanto and BASF has surged over the last week and a half after a staggering $265 million jury award to a Missouri peach farmer who alleged the two companies were to blame for the loss of his livelihood, according to Joseph Peiffer of the Peiffer Wolf Carr & Kane law firm. Peiffer said more than 2,000 farmers are likely to become plaintiffs.

There are already over 100 farmers making claims against the companies that have been combined in multidistrict litigation in U.S. District Court in Cape Girardeau, Missouri.

Earlier this month the bellwether trial for that litigation ended with a unanimous jury awarding the family-owned Bader Farms $15 million in compensatory damages and $250 million in punitive damages, to be paid by  Bayer AG, the German company that bought Monsanto in 2018, and by BASF.  The jury concluded that  Monsanto and BASF conspired in actions they knew would lead to widespread crop damage because they expected it would increase their own profits.

We now have the road map to get justice for dicamba victims.  The Bader verdict in Missouri sent a clear signal that you can’t profit off of hurting innocent farmers and get away with it,” said Peiffer.  “The crop damage research and increasing farmer complaints forecast a much bigger problem than Monsanto/Bayer and BASF want to admit.”

U.S. Right to Know asked the Environmental Protection Agency (EPA), which approved the dicamba herbicides despite scientific evidence of the risks, to provide a national tally for the total number of dicamba drift complaints. But while the EPA said it was taking the reports “very seriously,” it declined to provide a tally and said it was up to state agencies to handle such complaints.

The EPA also indicated it was not certain the damage reported by farmers was, in fact, due to dicamba.

“The underlying causes of the various damage incidents are not yet clear, as on-going investigations have yet to be concluded,” said an EPA spokesperson. “But EPA is reviewing all available information carefully.

“Ticking Time Bomb”

Just as Monsanto and Bayer have been confronted with damning internal documents in losing three trials over claims Monsanto’s glyphosate-based herbicides cause cancer, there are many internal corporate documents discovered in the dicamba litigation that helped convince the jury of the company’s guilt, according to Bader Farms attorney Bill Randles.

Randles has obtained hundreds of internal Monsanto and BASF corporate records demonstrating the companies were aware of the harm their products would create even as they publicly professed the opposite. He said one BASF document referred to dicamba damage complaints as a “ticking time bomb” that “has finally exploded.”

Bader and the other farmers allege that Monsanto was negligent in rolling out genetically engineered cotton and soybeans that could survive being sprayed with dicamba herbicides because it was known that using the crops and chemicals as designed would lead to damage.

Dicamba has been used by farmers since the 1960s but with limits that took into account the chemical’s propensity to drift far from where it was sprayed. When Monsanto’s popular glyphosate weed killing products such as Roundup started losing effectiveness due to widespread weed resistance, Monsanto decided to launch a dicamba cropping system similar to its popular Roundup Ready system, which paired glyphosate-tolerant seeds with glyphosate herbicides.

Farmers buying the new genetically engineered dicamba-tolerant seeds could more easily treat stubborn weeds by spraying  entire fields with dicamba, even during warm growing months, without harming their crops, according to Monsanto, which announced a  dicamba collaboration with BASF in 2011. The companies said their new dicamba herbicides would be less volatile and less prone to drift than old formulations of dicamba. But they refused to allow for independent scientific testing.

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

DuPont also introduced a dicamba herbicide and could also face multiple farmer lawsuits, according to the plaintiffs’ lawyers.

In their legal claims,  farmers allege that they have experienced damage both from the drift of old versions of dicamba and drifting newer versions as well. The farmers claim that the companies hoped fears of drift damage would force farmers to buy the special GMO dicamba-tolerant seeds in order to protect their cotton and soybean fields.

Farmers growing other types of crops have been without any means to protect their fields.

North Carolina farmer Marty Harper, who grows about 4,000 acres of tobacco as well as peanuts, cotton, corn, soybeans, wheat, and sweet potatoes, said dicamba-related damage to his tobacco fields exceeds  $200,000.  He said part of his peanut crop has also been damaged.

More than 2,700 farms have suffered dicamba damage, according to University of Missouri crop science professor Kevin Bradley.

A Message from Maine: It’s Time to Get Serious About Sustainability

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As summer turns to fall, the Maine landscape is beautiful to behold. Lush forests stretch as far as the eye can see in a tapestry of green, yellow and crimson-colored leaves. Every few miles along a narrow roadway, restored wooden barns adjoin modest homes set on tidy acres where farm families coax food from the soil and tend to livestock.

I was fortunate to visit this northeastern farm state recently, spending time at the “Common Ground Country Fair” in Unity, Maine. Only about 2,000 people live in the tiny town, but an estimated 57,000 people jammed the single-lane roads to swarm this year’s three-day event in late September.

The fair was part celebration and part education – a festival of first-hand knowledge about how to produce food in ways that focus on enhancing, not endangering, human and environmental health. Young and old gathered in yellow-and-white striped tents to discuss such topics as the marketing of organic lowbush wild blueberries, how to develop “micro-dairies,” and science that shows healthy, chemical-free soils can better sequester carbon from the atmosphere as a mitigant to the climate crisis.

In a jangly parade running through the middle of the fairgrounds, children and adults dressed as honeybees, fresh vegetables, sunflowers and trees and carried colorful signs calling for protections from the threats posed by industrial agriculture. One small child carried a sign that read “No sprays on me.”

The messages carried through that parade and across the fairgrounds speak to the fact that alongside this jovial festival of food and farming are mounting concerns about a lack of leadership in Washington and federal promotion of the permissive use of synthetic fertilizers and pesticides in farming; as well as the monoculture cropping practices that have become a mainstay of U.S. agriculture and are stripping away essential biodiversity.

This week, a group of state leaders cut the ribbon on a project to help address those concerns by promoting sustainable solutions in Maine that they intend as an example for the rest of the nation to follow.

The Maine Harvest Federal Credit Union opened its doors Oct. 8 as the first U.S. member-owned financial institution focused solely on funding small farms and food businesses that engage in sustainable agricultural practices. The credit union aims to provide financing for endeavors that improve access to fresh, locally grown food and are environmentally protective. With roughly 40 percent of the state’s 7,600 farms run by men and women under the age of 40, there is an appetite for progressive strategies to improve food production systems, supporters say.

“We are not there to finance commodity agriculture. We are organized to serve a re-vitalized and re-localized food economy,” co-founder Sam May told me. “The modern food system has it all wrong. It is killing the planet, the soil, our personal health and putting our civilization at risk. We are doing what we are doing in Maine because it needs to be done and we can do it.”

The credit union founders, former veterans of Wall Street, have raised $2.4 million in capital that includes a $300,000 conservation innovation grant from the U.S. Department of Agriculture.  The founders have garnered the support of the state’s U.S. congressional delegation, including Republican U.S. Sen. Susan Collins.

U.S. Rep. Chellie Pingree, a Democrat from Maine, emphasized the need for more of this type of support: “Our food economy is growing rapidly and financial support will be a big part of that continued growth going forward. I’m so pleased to see this first-in-the-country credit union that will support the unique needs of small farms and food businesses. I hope other states take note and help to close the gap between farmers and their financial institutions,” she said in a statement.

The work is not just admirable but urgent. In addition to scientific reports linking industrial agriculture and agrochemicals to water pollution, sterile soils, human diseases and reproductive problems, recently released research shows additional links to sharp declines in important bird and insect populations.

But rather than heed the warnings, the Trump Administration is racing to rollback regulatory protections at a rapid rate.

It seems fitting that it was here in Maine, more than 50 years ago, where author Rachel Carson kept a cottage and would sometimes retreat as she wrote about the dire consequences of a world awash in chemicals, a world where nature is sacrificed, and the sounds of song birds going silent.

To visit a country fair in the fall in Maine is to see what that long-ago call for action from Carson looks like in modern form. These are people who recognize that they must protect and build upon systems that sustain and nourish, not systems that destroy. These are people who hope their children and grandchildren will always be able to behold a landscape of lush forests and rich farmland as far as the eye can see.

It’s a lesson the rest of the country needs to learn. There is no time to waste.

UPDATED- St. Louis Trial over Monsanto Roundup Cancer Claims in Limbo

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(UPDATE) – On Sept. 12, the Missouri Supreme Court closed the case, agreeing with plaintiffs’ attorneys that Monsanto’s request for the high court to take up the venue issue was moot.   St. Louis Circuit Court Judge Michael Mullen then transferred all plaintiffs except Winston to St. Louis County in a Sept. 13 order.)

An October trial pitting a group of cancer patients against Monsanto in the company’s former home state of Missouri is snared in a tangled web of actions that threaten to indefinitely postpone the case.

New court filings show that lawyers for both sides of Walter Winston, et al v. Monsanto have been engaging in a series of strategic moves that may now be backfiring on them leading up to the trial date of Oct. 15 date set by St. Louis Circuit Court Judge Michael Mullen. Lawyers for the 14 plaintiffs named in the Winston lawsuit have been pushing to keep their case on track so they can present claims from the cancer victims to a St. Louis jury next month. But Monsanto lawyers have been working to delay the trial and disrupt the combination of plaintiffs.

The Winston lawsuit, filed in March of 2018, would be the first trial to take place in the St. Louis area. Before selling to the German company Bayer AG last year, Monsanto was based in the suburb of Creve Coeur and was one of the largest St. Louis area-based employers.  Roundup cancer trials that had been set for St. Louis area in August and September have both already been delayed until next year.

The plaintiffs in the Winston case are among more than 18,000 people in the United States suing Monsanto claiming that exposure to the company’s glyphosate-based herbicides caused them to develop non-Hodgkin lymphoma and that Monsanto hid the risks associated with its weed killers.

The back and forth battling over where and when the Winston trial may or may not take place began more than a year ago and has involved not only the local St. Louis court but also the appeals court in Missouri and the state Supreme Court.

In March of this year Monsanto filed a motion to sever and transfer 13 of the 14 plaintiffs in the Winston case from the St. Louis City Court to the Circuit Court for the County of St. Louis, where the company’s registered agent was located and where “venue is proper.”  The motion was denied. The company had filed a similar motion in 2018 but it also was denied.

The plaintiffs’ lawyers opposed such a severing and transfer earlier this year, but they have now changed that stance because amid all the maneuvering, Monsanto has been seeking intervention by the Missouri Supreme Court. The state’s high court ruled earlier this year in an unrelated case that it was not proper for plaintiffs located outside St. Louis City to join their cases to a city resident in order to obtain venue in St. Louis City. St. Louis City court has long been considered a favorable venue for plaintiffs in mass tort actions

Monsanto’s bid for intervention by the Missouri Supreme Court was rewarded on Sept. 3 when the Supreme Court issued a “preliminary writ of prohibition” allowing Walter Winston’s individual case to “proceed as scheduled” in St. Louis City Circuit Court. But the court said that the cases of the 13 other plaintiffs joined in Winston’s lawsuit could not proceed at this time as it considers how to handle the cases. The court ordered a freeze on any further actions by the St. Louis City Court, “until the further order of this Court.”

Fearing their case will be broken apart and/or delayed waiting for a Supreme Court decision on venue, the plaintiffs’ lawyers on Sept. 4 said they were withdrawing their opposition to Monsanto’s request for a transfer of the case to St. Louis County.

But now Monsanto no longer wants the case transferred given the Supreme Court’s action. In a filing last week the company said: “Plaintiffs fought venue at every opportunity, instead of agreeing to transfer their claims to St. Louis County and seeking a trial setting in that Court long ago. Rewarding the Winston Plaintiffs for this choice will only encourage further gamesmanship.”

On Monday, the plaintiffs’ attorneys filed a response arguing that the Winston plaintiffs should be transferred to St. Louis County as Monsanto had previously requested and that would make the venue issue before the court moot. They also argued that the judge in St. Louis City who has been presiding over the Winston case should continue to handle the case within the county court system.

“With the withdrawal of their opposition to Monsanto’s motion, Plaintiffs have consented to the very relief that Monsanto requests of this Court – transfer of the Winston plaintiffs to St. Louis County,” the plaintiffs’ filing states.  “The Winston plaintiffs’ case is trial ready. If the case is transferred to St. Louis County in short order, the Plaintiffs can begin trial on or close to the schedule currently in place.”

Whether or not a trial will still take place in mid October in St. Louis is still an open question.

Tech, Medical and Farm Groups Ask Appeals Court to Overturn Verdict Against Monsanto

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Groups representing farm, medical and biotechnology interests have filed briefs with the California Court of Appeal, aligning with Monsanto in asking the court to overturn last summer’s jury verdict that found Monsanto’s glyphosate-herbicides cause cancer and determined that the company spent years covering up the risks.

The groups are urging the appeals court to either throw out the win a San Francisco jury gave to school groundskeeper Dewayne “Lee” Johnson in August of 2018 or to invalidate an order for Monsanto to pay punitive damages to Johnson. The Johnson trial was the first against Monsanto over claims that its glyphosate-based herbicides such as Roundup can cause non-Hodgkin lymphoma.

Johnson is one of more than 18,000 plaintiffs making similar claims. The lawsuits allege that Monsanto was aware of scientific research showing an association between its herbicides and cancer but rather than warn consumers the company worked to suppress the research and manipulate scientific literature.

The jury in the Johnson case decided Monsanto should pay $289 million in damages, including $250 million in punitive damages. The trial judge in the case later slashed the punitive damage amount, reducing the total award to $78 million. Two other juries in subsequent trials over similar claims have also found in favor of plaintiffs and ordered large punitive damages against Monsanto.

Monsanto appealed the verdict and Johnson cross-appealed, seeking reinstatement of the full $289 million. Oral arguments are expected in this appeals court this fall with a potential decision from the appeals court before the end of the year.

One of the parties filing a brief supporting Monsanto’s position is Genentech Inc., a San Francisco biotech company with a history of doing research for cancer treatments. In its appeal to the court, Genentech argues that it has expertise as a “science company” and sees the Johnson verdict as a threat to scientific progress. “Courts must ensure the proper use of science in the courtroom in order for innovation to flourish in the marketplace…” the Genentech brief states.

Genentech announced earlier this year a fast-track review from the Food and Drug Administration for a drug treatment for people with non-Hodgkin lymphoma.

In backing Monsanto’s appeal, Genentech echoed complaints by Monsanto that Johnson’s lawyers did not properly present expert scientific testimony: “Genentech writes to highlight the importance of the proper screening of scientific expert testimony for companies with scientifically innovative products and consumers who rely on their innovations.”

The company also sided with Monsanto on the issue of punitive damages, arguing that companies should not be subject to punitive damages if their product has been reviewed by a regulatory agency such as the Environmental Protection Agency (EPA) and found to not pose a risk to human health.

“Allowing juries to award punitive damages for products that have been specifically examined and approved by regulatory agencies creates a large risk of confusion for life-science-based companies and may deter the progress of science,” the Genentech brief states. “If such punitive damages awards are allowed, companies face the risk of massive punitive damages awards unless they routinely second guess the safety decisions of regulators.”

On Tuesday the California Farm Bureau Federation filed its own brief supporting Monsanto. The farm bureau, which says it represents 36,000 members, said the case is of “vital concern” to farmers and ranchers who “depend on crop protection tools to grow food and fiber.”

Even though the Johnson verdict does not impact the regulation of glyphosate herbicides, the farm bureau argues in its brief that the industry fears restrictions on the chemical. The farm group additionally argued that the “trial court’s decision disregards federal law, as well as state law…” because it conflicts with the EPA’s finding that glyphosate is not likely to cause cancer.

Additionally, California associations representing doctors, dentists and hospitals weighed in on behalf of Monsanto arguing that the jury’s decision in the Johnson case was “subject to emotional manipulation” and not based on “scientific consensus.”

“The answer to the complex scientific question the jury was required to resolve in this case should have been based on accepted scientific evidence and rigorous scientific reasoning, not the jury’s policy choices. Even worse, there is reason to suspect the jury’s analysis was based on speculation and emotion,” the associations said in their brief.

Johnson’s attorney, Mike Miller, said he feels “real good” about the chances of victory in the appeals court and described the brief from the California Medical Association as the “same sophomoric brief they file against every victim of negligence.”

Missouri Trial Can Proceed

In separate action in Missouri , the state’s supreme court said on Tuesday that a trial set to start Oct. 15 in the city of St. Louis can proceed as planned on behalf of plaintiff Walter Winston. Other plaintiffs who had joined in Winston’s complaint against Monsanto are expected to be severed and/or have their cases delayed, according to a decision by the Missouri Supreme Court. Monsanto had asked the high court to prohibit the trial from taking place due to the fact that several plaintiffs do not reside in the area.

The Supreme Court instructed St. Louis City Judge Michael Mullen “take no further action” at this time in the cases of the 13 plaintiffs.

Monsanto was acquired by Bayer AG in June of 2018, and Bayer’s share prices fell sharply following the Johnson verdict and have remained depressed. Investors are pressing for a global settlement to end the litigation.

Emails Reveal Science Publisher Found Papers On Herbicide Safety Should Be Retracted Due to Monsanto Meddling

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Secretive influence by Monsanto in a set of papers published in the scientific journal Critical Reviews in Toxicology was so unethical that an investigation by the publisher found that at least three of the papers should be retracted, according to a series of internal journal communications. The journal editor refused to retract the papers, which declared no cancer concerns with the  company’s herbicides, saying a retraction could impact last summer’s first-ever Roundup trial and harm the authors’ reputations, the emails show.

The journal communications were obtained through discovery by lawyers representing several thousand people suing Monsanto over claims that the company’s glyphosate-based herbicides cause cancer and that Monsanto has covered up the evidence of the dangers.

Unlike the internal Monsanto emails that have thus far come to light revealing the agrochemical company’s manipulation of scientific literature about its herbicides, these emails detail the inner battle within a major scientific publishing house over how it should confront Monsanto’s covert meddling. They were obtained as part of a deposition of Roger McClellan, the longtime editor in chief of the peer-reviewed journal Critical Reviews in Toxicology (CRT.)

The papers in question were published by CRT in September 2016 as an “Independent Review” of the carcinogenic potential of the weed-killing agent glyphosate, the main ingredient in Monsanto’s Roundup herbicide and other brands. The five papers published as part of the review directly contradicted the findings of the World Health Organization’s International Agency for Research on Cancer (IARC), which in 2015 found glyphosate to be a probable human carcinogen. The 16 authors of the papers concluded that the weight of evidence showed the weed killer was unlikely to pose any carcinogenic risk to people.

At the end of the papers the authors stated that their conclusions were free of Monsanto’s intervention. Underscoring the supposed independence of the work, the declaration of interest section stated: “Neither any Monsanto company employees nor any attorneys reviewed any of the Expert Panel’s manuscripts prior to submission to the journal.”

That statement was proven false in the fall of 2017 after internal Monsanto records came to light showing extensive involvement by Monsanto scientists in the drafting and editing of the papers as well as company involvement in selecting the authors. Additionally, internal records showed direct payments to at least two of the so-called independent authors. Monsanto had a contract with author Larry Kier, for instance, paying him $27,400 to work on the papers.

In response to those revelations and questions from media outlets, CRT publisher  Taylor & Francis Group  launched an investigation in the fall of 2017. The newly released communications reveal that after spending months questioning the authors about how the papers came together,  a team of legal and ethics experts put together by Taylor & Francis concluded that the authors had hidden Monsanto’s direct  involvement in the papers, and had done so knowingly. Indeed, some of the authors did not even fully disclose Monsanto involvement in initial questioning by Taylor & Francis during the investigation, the emails show.

The “only tenable outcome is to retract 3 of the articles; specifically the summary, epidemiology and genotoxicity papers,” Taylor & Francis’ Charles Whalley wrote to McClellan on May 18, 2018. Whalley was managing editor of the publishing group’s medicine and health journals at the time.

The internal emails show McClellan refused to accept the idea of retraction, saying that he believed the papers were “scientifically sound” and produced “without external influence” from Monsanto. He said a retraction would tarnish the reputations of the authors, the journal and his own reputation.

“I can not agree to the proposal for retraction you have offered in your memo of May 18th, McClellan wrote in response.  In a series of emails McClellan laid out his arguments against retraction, saying   “Retractions of the papers would do irreparable harm to multiple parties including, most of all, the authors, the Journal , the publisher and key employees such as you and, in addition, me in my role as the Scientific Editor of CRT.”

In an email dated June 5, 2018, McClellan declared that he knew Monsanto had a “vested interest” in the publication of the papers and was personally aware of Monsanto’s relationships, including compensation agreements, with the authors, and still was satisfied that the papers were “scientifically sound.”

“In my professional opinion, the five Glyphosate papers are scholarly pieces of work clearly documenting the process used to critique the IARC report and provide an alternative hazard characterization,” McClellan wrote. “The five papers are scientifically sound. It would be a breach of scientific ethics and my own standards of scientific integrity to agree to retraction of any or all of the Glyphosate papers…”

Whalley pushed back, saying that the authors of the papers were clearly guilty of “misconduct and a breach of publishing ethics,” so severe as to warrant retraction. The “breaches of publication ethics that we have identified in this case are clear breaches of fundamental and clearly defined standards, and not attributable to misunderstandings of detail or nuance,” Whalley wrote to McClellan. He said the publisher had reviewed the guidelines from the Committee on Publication Ethics (COPE) before making the decision.  “Retractions are evidence that editorial policies are working, not that they have failed,” he wrote.

Whalley and McClellan argued over the retraction for months, the records show.  In one July 22, 2018 email McClellan pointed out that the first trial against Monsanto over the Roundup cancer claims was taking place at the time so the journal discussions of a retraction were “quite sensitive since the Johnson vs. Monsanto trial is underway in San Francisco.”  He suggested that instead of retracting the papers, they simply correct  the section at the end of the papers where the authors disclose potential conflicts.

“I urge you to agree to my recommendation to publish corrected and expanded Declaration of Interest statements and abandon the “we gotcha” approach with Retraction of the papers,” McClellan wrote to Whalley in a July 2018 email.  “I will not allow my well-earned reputation to be tarnished by arbitrary and capricious actions by others.”

“In this case, we need to collectively attempt to reach agreement on an equitable outcome that is FAIR to the authors, the publisher, CRT readers, the public and me as the Editor-in-Chief and the CRT Editorial board. We must not take an approach that determines winners and losers in legal cases based on what is allowed to appear in the peer reviewed literature,” McClellan wrote.

Neither McClellan nor Whalley responded to a request for comment regarding this article.

The CRT glyphosate series was considered so significant that its findings were widely reported by media outlets around the world and cast doubt upon the validity of the IARC classification. The papers were published at a critical time as Monsanto was facing doubts by European regulators about allowing glyphosate to remain on the market and growing unease in U.S. markets as well. The 2016 series was “widely accessed,” with one of the papers in the series accessed “over 13,000 time,” according to the internal journal correspondence.

The importance of the papers to Monsanto was laid out in a confidential document dated May 11, 2015, in which Monsanto scientists spoke of “ghost-writing” strategies that would lend credibility to the “independent” papers the company wanted to have created and then to be published by CRT.  Monsanto had announced in 2015 that it was hiring Intertek Scientific & Regulatory Consultancy to put together a panel of independent scientists who would review the IARC classification of glyphosate as a probable carcinogen. But the company had pledged that it would not be involved in the review.

Though Monsanto’s involvement was revealed in 2017 Taylor & Francis took no public action until September 2018 as the publisher and editor wrestled over the retraction issue. McClellan ultimately won the argument and no retractions were made. The internal emails show that Whalley notified the 16 authors of the glyphosate papers of the decision to merely publish corrections to the articles and update the declarations of interest at the end of the papers. That Aug. 31, 2018 email states:

            “We note that, despite requests for full disclosure, the original Acknowledgements and Declaration of Interest statements did not fully represent the involvement of Monsanto or its employees or contractors in the authorship of the articles. As referred to in our previous memos to you, this specifically relates to the statements that:

           ‘Neither any Monsanto company employees nor any attorneys reviewed any of the Expert Panel’s manuscripts prior to submission to the journal.’ and that ‘The Expert Panelists were engaged by, and acted as consultants to, lntertek, and were not directly contacted by the Monsanto Company.’ 

          “From information you have provided to us, we now believe that neither of these statements was accurate at time of submission. This is in contradiction to declarations you made on submission and to warranties you made in the Author Publishing Agreements regarding your compliance with Taylor & Francis’ policies. To provide the necessary transparency to our readers, we will publish corrections to your articles to update their respective Acknowledgements and Declaration of Interest statements as per the material you have provided.”

In September of 2018 the papers were updated to carry an “Expression of Concern” and updates to the acknowledgements and declaration of interests. But despite the findings of Monsanto’s involvement, the papers are still titled with the word “independent.”

Whalley left Taylor & Francis in October of 2018.

The journal’s handling of the matter has troubled some other scientists.

“McClellan’s comments about why he did not retract the paper was disingenuous, self-serving, and violate sound editorial practice,” said Sheldon Krimsky,  a Tufts University professor and a fellow of the Hastings Center, an independent bioethics research institution. Krimsky is also associate editor for a Taylor & Francis journal called “Accountability in Research.”

Nathan Donley, a senior scientist employed by the nonprofit Center for Biological Diversity said the journal’s failure to retract was a failure of transparency.  “This was one of the most disgraceful events in scientific publishing that I have ever witnessed,” Donley said. “What we’re left with is an expression of concern that no one will read and a blatant misrepresentation that this was somehow an ‘independent’ endeavor.  This was a win for the most powerful player in the pesticide industry, but it came at the expense of ethics in science.”

Click here to read 400-plus pages of the emails.