New legal filings over alleged Roundup dangers amid court coronavirus delays

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Even as the spread of the coronavirus closes courthouse doors to the public and lawyers, legal maneuvering continues over claims of danger associated with Monsanto’s glyphosate-based herbicides.

Two nonprofit advocacy groups, the Center for Food Safety (CFS) and the Center for Biological Diversity (CBD), filed an amicus brief on behalf of cancer patient Edwin Hardeman on March 23. Hardeman won a jury verdict against Monsanto of $80 million in March of 2019, becoming the second winning plaintiff in the Roundup litigation.  The trial judge reduced the jury award to a total of $25 million. Monsanto appealed the award nonetheless, asking an appellate court to overturn the verdict.

The new legal brief supporting Hardeman counters one filed by the Environmental Protection Agency (EPA) that backs Monsanto in the Hardeman appeal.

The CFS and CBD brief states that Monsanto and the EPA are both wrong to assert that the EPA’s approval of glyphosate herbicides preempts challenges to the safety of the products:

        “Contrary to Monsanto’s claims, Mr. Hardeman’s case is not preempted by EPA’s conclusion relative to glyphosate because Roundup is a glyphosate formulation that EPA has never evaluated for carcinogenicity. Moreover, significant flaws and biases undermined EPA’s evaluation of glyphosate’s carcinogenicity and the district court was correct in allowing testimony to that effect,” the brief states.

         “Monsanto wants this Court to believe that “glyphosate” is synonymous with ‘Roundup.’ The reason is simple: if the terms are interchangeable, then, they argue, EPA’s finding that glyphosate is “not likely to be carcinogenic” would apply to Roundup and might preempt Mr. Hardeman’s case. However as the evidence presented at trial demonstrated, “glyphosate” and “Roundup” are very much not synonymous, and Roundup is far more toxic than glyphosate.  Moreover, EPA has never evaluated Roundup for carcinogenicity. Glyphosate formulations, like Roundup, contain additional ingredients (co-formulants) to improve performance in some way. EPA understands these formulations are more toxic than glyphosate alone, yet nevertheless focused its cancer evaluation on pure glyphosate…”

Separate lawsuit names EPA 

In a separate legal action, last week the Center for Food Safety filed a federal lawsuit against the EPA over its continued support of glyphosate. The claim, made on behalf of a  coalition of farm workers, farmers, and conservationists, alleges the EPA is violating the Federal Insecticide, Fungicide, and Rodenticide Act as well as the Endangered Species Act by continuing to allow widespread use of glyphosate herbicides.

“While EPA defends glyphosate, juries in several cases have found it to cause cancer, ruling in favor of those impacted by exposure,” CFS said in a press release. “Glyphosate formulations like Roundup are also well-established as having numerous damaging environmental impacts. After a registration review process spanning over a decade, EPA allowed the continued marketing of the pesticide despite the agency’s failure to fully assess glyphosate’s hormone-disrupting potential or its effects on threatened and endangered species.”

Bill Freese, science policy analyst at CFS said: “Far from consulting the ‘best available science,’ as EPA claims, the agency has relied almost entirely on Monsanto studies, cherry-picking the data that suits its purpose and dismissing the rest.”

Virus-related court disruptions

Monsanto and its German owner Bayer AG have been working to try to settle a large number of the tens of thousands of Roundup cancer claims brought in U.S. courts. That effort continues, and specific settlements have already been reached for some individual plaintiffs, according to sources involved in the talks. US Right to Know reported in early January that the parties were working on a settlement of roughly $8 billion to $10 billion.

However, many other cases continue to work their way through the court system, including the appeal of Dewayne “Lee” Johnson, the first plaintiff to win against Monsanto in the Roundup litigation. Johnson’s attorneys had hoped the California Court of Appeal would hold oral arguments in Monsanto’s appeal of Johnson’s win sometime in April. But that now appears extremely unlikely as other cases scheduled for March have now been pushed into April.

As well, all in-person sessions for oral arguments in the appeals court are currently suspended. Counsel who choose to present oral argument must do so over the telephone, the court states.

Meanwhile, courts in multiple California counties are closed and jury trials have been suspended to try to protect people from the spread of the virus. The federal court in San Francisco, where the multidistrict Roundup litigation is centralized, is closed to the public, including a suspension of trials, until May 1. Judges can still issue rulings, however, and hold hearings by teleconference.

In Missouri, where most of the state court Roundup cases are based, all in-person court proceedings (with a few exceptions) are suspended through April 17, according to a Missouri Supreme Court order. 

One Missouri case that had been set to go to trial in March 30 in St. Louis City Court now has a trial date set for April 27.  The case is Seitz v Monsanto #1722-CC11325.

In ordering the change, Judge Michael Mullen wrote: “DUE TO THE NATIONAL PANDEMIC OF THE COVID-19 VIRUS AND THE UNAVAILABILITY OF JURORS IN THIS CIRCUIT THE COURT HEREBY REMOVES THIS CASE FROM THE MARCH 30, 2020 TRIAL DOCKET. CAUSE IS RESET FOR A TRIAL SETTING CONFERENCE ON MONDAY, APRIL 27, 2020 @ 9:00 AM.”

Shareholder files suit against Bayer over “disastrous” Monsanto acquisition

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A California shareholder of Bayer AG on Friday filed a lawsuit against the companies’ top executives claiming they breached their duty of “prudence” and “loyalty” to the company and investors by buying Monsanto Co. in 2018, an acquisition the suit claims has “inflicted billions of dollars of damages” on the company.

Plaintiff Rebecca R. Haussmann, trustee of the Konstantin S. Haussmann Trust, is the sole named plaintiff in the suit, which was filed in New York County Supreme Court.  The named defendants include Bayer CEO Werner Baumann, who orchestrated the $63 billion Monsanto purchase, and Bayer Chairman Werner Wenning, who announced last month he was stepping down from the company earlier than planned. The suit claims that Wenning’s decision came after Bayer improperly obtained a copy of the then-draft shareholder lawsuit “through corporate espionage.”

The lawsuit also claims that Bayer’s recent announcement of an audit of its acquisition actions is “bogus” and “part of the ongoing cover-up and intended to create a legal barrier to this case to protect Defendants from their accountability…”

The action is a shareholder derivative complaint, meaning it is brought on behalf of the company against company insiders. It seeks compensatory damages for shareholders and disgorgement of “all compensation paid to the Bayer Managers and Supervisors who participated in bringing about this Acquisition…” The suit also seeks return of funds paid to banks and law firms involved in the acquisition.

The defendants include not only Baumann and Wenning, but also some present and former Bayer directors and top managers, as well as BOFA Securities, Inc., Bank of America, Credit Suisse Group AG and the law firms of Sullivan & Cromwell LLP and Linklaters LLP.

A Bayer spokesman did not respond to a request for comment.

The lawsuit comes a little more than a month before Bayer’s April 28 annual shareholders’ meeting in Bonn, Germany.  At last year’s annual meeting, 55 percent of shareholders registered their unhappiness with Baumann and other managers over the Monsanto deal and the subsequent loss of roughly $40 billion in market value.

Bayer’s purchase of Monsanto has been clouded by tens of thousands of lawsuits alleging Monsanto’s glyphosate-based herbicides cause non-Hodgkin lymphoma and that the company deceived customers about the risks. Bayer proceeded with the acquisition even after the International Agency for Research on Cancer in 2015 classified glyphosate as a probable human carcinogen with a positive association to non-Hodgkin lymphoma, and despite knowledge of the spreading legal claims.

Bayer then completed the Monsanto purchase just two months before the first Roundup cancer trial ended with a $289 million verdict against the company. Since that time two more trials have ended in similar findings against the company with verdicts totaling more than $2 billion, though the trial judges in each case have lowered the verdicts. All are now on appeal.

Bayer has said there are more than 45,000 plaintiffs currently making similar claims. The company has been working to settle the lawsuits for a figure widely reported to be around $10 billion but has thus far not been successful in putting an end to the litigation.

The lawsuit claims that during 2017 and 2018, as the filing of new Roundup cancer lawsuits was escalating, the ability of Bayer management to conduct due diligence into Monsanto and the litigation risks was “severely restricted.” As a result, “Bayer could not conduct the kind of intrusive and thorough due diligence into Monsanto’s business and legal affairs called for under the circumstances.”

The suit claims that Monsanto did not disclose a material risk from Roundup and failed to quantify any potential financial impact. Monsanto’s executives “had every incentive to minimize the Roundup risk in order to get Bayer to close the deal,” the lawsuit states.

The shareholder lawsuit claims that “these types of mass-tort cases… can destroy a company.”

The lawsuit points to the fact that Monsanto’s glyphosate herbicides are now being restricted and/or banned in many parts of the world, including in Germany.

“The Monsanto Acquisition is a disaster. Roundup is doomed as a commercial product,” the lawsuit states.

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.

As settlement talks drag on, another Monsanto Roundup trial nears

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Continuing to lack a resolution in the massive nationwide Roundup cancer litigation, a leading U.S. plaintiffs’ law firm is pressing ahead with preparations for a California trial involving a critically ill cancer patient and his wife who are suing the former Monsanto company claiming the man’s disease is due to years of his use of Roundup herbicide.

The Miller Firm, which has about 6,000 Roundup plaintiffs, is now preparing to go to trial against Monsanto’s German owner Bayer AG on May 5 in Marin County Superior Court in California. The case has been granted preference status –  meaning a quick trial date – because plaintiff Victor Berliant is critically ill. A deposition of Berliant is being scheduled for next week.

Berliant, a man in his 70s, has been diagnosed with Stage IV T-cell non-Hodgkin lymphoma and is planning to undergo a bone marrow transplant in March after multiple rounds of chemotherapy failed. His lawyers say it is necessary to take his deposition before the transplant as there is a risk he may not survive the procedure or may be otherwise unable to participate at the May trial.

Berliant used Roundup from approximately 1989 to 2017, according to his lawsuit. His wife, Linda Berliant, is also named as a plaintiff, asserting loss of consortium and other damages.

Other cases with trial dates are pending in the St. Louis, Missouri area and in Kansas City,  Missouri, including one case with more than 80 plaintiffs scheduled for trial March 30 in St. Louis City Court. A hearing was supposed to be held today in that case, Seitz v. Monsanto, but was cancelled.

The Miller firm is one of the primary plaintiffs’ firms in the Roundup litigation and caused a stir last month by canceling a St. Louis trial shortly before opening statements were to begin in order to facilitate settlement talks.

The fact that the Miller firm is pressing ahead with more trials underscores the lack of agreement between Bayer and the attorneys for a pool of plaintiffs that some sources say now numbers above 100,000.

Both the Miller firm and the firm of Weitz & Luxenberg, which have close to 20,000 plaintiffs combined, have been at the forefront of negotiations, sources close to the litigation say.

Certain plaintiffs who have agreed to cancel their trials have secured agreements on specific settlement amounts, sources involved in the litigation said, while other parties are said to be discussing deals that are contingent upon the successful completion of a larger overall settlement of the U.S. litigation.

But a comprehensive settlement to put the Roundup claims to rest for the long term remains challenging, sources said. Settling with the current pool of plaintiffs will not protect Bayer from future litigation over Roundup cancer causation claims.

The Wall Street Journal has called the effort to forge a settlement an “extraordinary challenge.” 

Many Bayer investors are hoping for a resolution no later than Bayer’s annual meeting on April 28 in Bonn, Germany.

Numbers of $8 billion-$10 billion have been floated for weeks by litigation sources as a potential settlement total for the mass of cases that has dogged Bayer ever since it bought Monsanto in June of 2018 for $63 billion.

The first three trials went badly for Monsanto and Bayer as outraged juries awarded over $2.3 billion in damages to four plaintiffs. Trial judges lowered the jury awards to a total of roughly $190 million, and all are under appeal but the company’s share prices has been sharply depressed by the repeated trial losses.

The trials have turned a public spotlight on internal Monsanto record  that showed how Monsanto engineered scientific papers proclaiming the safety of its herbicides that falsely appeared to be created solely by independent scientists; used third parties to try to discredit scientists reporting harm with glyphosate herbicides; and collaborated with Environmental Protection Agency officials to protect Monsanto’s position that its products were not cancer-causing.

“The last thing Bayer wants is another bad headline on the Roundup litigation” said Marine Chriqui, a London-based market analyst. “I think it is really important for them not to be in a difficult situation at the time of the meeting. “

Some industry observers suggest that Bayer may continue to settle each case just before trial for many months as appeals play out.

Lawyers for both sides are currently awaiting a date for oral arguments before the appeals court in the case of Johnson v. Monsanto, which was the first to go to trial in the summer of 2018.

Some of the plaintiffs’ attorneys are contemplating making an appearance in Bonn the week of the shareholders’ meeting if a settlement is not achieved, litigation sources said.

Dicamba Fact Sheet

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Dicamba (3,6-dichloro-2-methoxybenzoic acid) is a broad-spectrum herbicide first registered in 1967. The herbicide is used on agricultural crops, fallow land, pastures, turfgrass and rangeland. Dicamba is also registered for non-agricultural uses in residential areas and other sites, such as golf courses. At these types of sites, it is primarily used to control broadleaf weeds such as dandelions, chickweed, clover and ground ivy.

Dicamba can be found in liquids, dusts and granule products. There are more than 1,000 products sold in the United States that include dicamba, according to the National Pesticide Information Center.

Dicamba’s mode of action is as an auxin agonist: it produces uncontrollable growth that leads to plant death.

Environmental Concerns 

Older versions of dicamba were known to drift far from where they were applied, and typically were not used widely during warm growing months when they could kill off-target crops or trees.

The Environmental Protection Agency approved the registration of new dicamba formulations in 2016, however, allowing for a new use of – “over-the-top” applications on growing dicamba-tolerant cotton and soybean plants. Scientists warned the new uses would result in dicamba drift damage.

The new uses for dicamba came about because of the development of widespread weed resistance to glyphosate-based herbicides, including the popular Roundup brand, introduced by Monsanto in the 1970s. In the 1990s, Monsanto introduced glyphosate-tolerant crops, and encouraged famers to use its “Roundup Ready” cropping systems. Farmers could plant Monsanto’s genetically engineered glyphosate-tolerant soybeans, corn, cotton and other crops, and then spray glyphosate herbicides such as Roundup directly over the top of the growing crops without killing them. The system made weed management easier for farmers as they could spray the chemicals directly over their entire fields during the growing season, wiping out weeds that competed with the crops for moisture and soil nutrients.

The popularity of the Roundup Ready system led to a surge in weed resistance, however, leaving farmers with fields of hardy weeds that would no longer die when sprayed with glyphosate.

In 2011 Monsanto announced that glyphosate, had been “relied on too long by itself” and said it planned to collaborate with BASF and develop a cropping system of genetically engineered crops that would tolerate being sprayed with dicamba. It said it would introduce a new type of dicamba herbicide that would not drift far from fields where it was sprayed.

Since the introduction of the new system, complaints about dicamba drift damage have surged in several farm states, including hundreds of complaints from Illinois, Indiana, Iowa, Missouri and Arkansas.

In a report dated Nov. 1, 2017, the EPA said it had tallied 2,708 official dicamba-related crop injury investigations (as reported by state departments of agriculture). The agency said there were more than 3.6 million acres of soybeans impacted at that time. Other impacted crops were tomatoes, watermelon, cantaloupe, vineyards, pumpkins, vegetables, tobacco, residential gardens, trees and shrubs

In July 2017, the Missouri Department of Agriculture temporarily issued a “Stop Sale, Use or Removal Order,” on all dicamba products in Missouri.  The state lifted the order in September 2017.

These are some dicamba products:

On Oct. 31, 2018, the U.S. Environmental Protection Agency (EPA) announced an extension of Engenia, XtendiMax and FeXapan registrations through 2020 for “over-the-top” use in dicamba-tolerant cotton and soybean fields. EPA said it had enhanced the previous labels and put in place additional safeguards in an effort to increase the success and safe use of the product in the field.

The two-year registration is valid through Dec. 20, 2020. The EPA has stated the following provisions:

  • Only certified applicators may apply dicamba over-the-top (those working under the supervision of a certified applicator may no longer make applications)
  • Prohibit over-the-top application of dicamba on soybeans 45 days after planting or up until the R1 growth stage (first bloom), whichever comes first
  • Prohibit over-the-top application of dicamba on cotton 60 days after planting
  • For cotton, limit the number of over-the-top applications from four to two
  • For soybeans, the number of over-the-top applications remains at two
  • Applications will be allowed only from one hour after sunrise to two hours before sunset
  • In counties where endangered species may exist, the downwind buffer will remain at 110 feet and there will be a new 57-foot buffer around the other sides of the field (the 110-foot downwind buffer applies to all applications, not just in counties where endangered species may exist)
  • Enhanced tank clean-out instructions for the entire system
  • Enhanced label to improve applicator awareness on the impact of low pH on the potential volatility of dicamba
  • Label clean up and consistency to improve compliance and enforceability

Food Residues 

Just as glyphosate applications in farm fields have been found to leave residues of glyphosate on and in finished foods, such as oatmeal, breads, cereals, etc., dicamba residues are expected to leave residues in food. Farmers whose produce has been contaminated with dicamba residues via drift have expressed concerns that their products might be rejected or otherwise harmed commercially because of the residue issue.

The EPA has set tolerance levels for dicamba is several grains and for the meat of livestock that consume grains, but not for a variety of fruits and vegetables. A tolerance for dicamba in soybeans is set at 10 parts per million, for instance, in the United States, and a 2 parts per million for wheat grain. Tolerances can be seen here. 

The EPA has issued this statement regarding dicamba residues in food: “EPA performed the analysis required by the Federal Food, Drug and Cosmetic Act (FFDCA) and determined that residues on food are “safe” – meaning that there is a reasonable certainty of no harm to people, including all reasonably identifiable subpopulations, including infants and children, from dietary and all other non-occupational exposure to dicamba.”

Cancer and Hypothyroidism 

The EPA states that dicamba is not likely to be carcinogenic, but some studies have found an increased risk of cancer for users of dicamba.

See these studies regarding the human health effects of dicamba:

Pesticide Use and Incident Hypothyroidism in Pesticide Applicators in the Agricultural Health Study.  Environmental Health Perspectives (9.26.18)
“In this large prospective cohort of farmers that were occupationally exposed to pesticides, we found that ever-use of four organochlorine insecticides (aldrin, chlordane, heptachlor, and lindane), four organophosphate insecticides (coumaphos, diazinon, dichlorvos, and malathion), and three herbicides (dicamba, glyphosate, and 2,4-D) was associated with increased risk of hypothyroidism.”

Hypothyroidism and pesticide use among male private pesticide applicators in the agricultural health study. Journal of Occupational Environmental Medicine (10.1.14)
“The herbicides 2,4-D, 2,4,5-T, 2,4,5-TP, alachlor, dicamba, and petroleum oil were all associated with an increased odds of hypothyroidism”

A review of pesticide exposure and cancer incidence in the Agricultural Health Study cohort.  Environmental Heath Perspectives (8.1.10)
“We reviewed 28 studies; most of the 32 pesticides examined were not strongly associated with cancer incidence in pesticide applicators. Increased rate ratios (or odds ratios) and positive exposure–response patterns were reported for 12 pesticides currently registered in Canada and/or the United States (alachlor, aldicarb, carbaryl, chlorpyrifos, diazinon, dicamba, S-ethyl-N,N-dipropylthiocarbamate, imazethapyr, metolachlor, pendimethalin, permethrin, trifluralin).”

Cancer Incidence among Pesticide Applicators Exposed to Dicamba in the Agricultural Health Study. Environmental Health Perspectives (7.13.06)
“Exposure was not associated with overall cancer incidence nor were there strong associations with any specific type of cancer. When the reference group comprised low-exposed applicators, we observed a positive trend in risk between lifetime exposure days and lung cancer (p = 0.02), but none of the individual point estimates was significantly elevated. We also observed significant trends of increasing risk for colon cancer for both lifetime exposure days and intensity-weighted lifetime days, although these results are largely due to elevated risk at the highest exposure level.”

Non-Hodgkin’s Lymphoma and Specific Pesticide Exposures in Men: Cross-Canada Study of Pesticides and Health.  Cancer Epidemiology, Biomarkers and Prevention (11.01)
“Among individual compounds, in multivariate analyses, the risk of NHL was statistically significantly increased by exposure to the herbicides…dicamba (OR, 1.68; 95% CI, 1.00–2.81); ….In additional multivariate models, which included exposure to other major chemical classes or individual pesticides, personal antecedent cancer, a history of cancer among first-degree relatives, and exposure to mixtures containing dicamba (OR, 1.96; 95% CI, 1.40–2.75)…were significant independent predictors of an increased risk for NHL”

Litigation 

The dicamba drift damage concerns have prompted lawsuits from farmers in many U.S. states. Details on the litigation can be found here.

St. Louis Roundup cancer trial “will not resume;” settlement news expected

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A Roundup cancer trial in St. Louis, Missouri, will not open on Wednesday as expected, a court spokesman said Monday, fueling fresh speculation that a global settlement of tens of thousands of lawsuits brought by cancer victims against the former Monsanto Co. may be near.

St. Louis City Circuit Court Judge Elizabeth Hogan issued the notification Monday afternoon, reversing guidance provided to jurors and media last week that they should plan for opening statements in the case to begin Wednesday.  Broadcasters waiting to air the proceedings of the highly anticipated trial were told to pack up their equipment.

The St. Louis case, titled Wade v. Monsanto, involves four plaintiffs, including one woman whose husband died of non-Hodgkin lymphoma. Opening statements were initially expected Jan. 24, but were postponed  to allow for lawyers for Monsanto’s German owner Bayer AG and lawyers for the plaintiffs to discuss settlement terms.  The court then said the trial would open on Feb. 5.  Now, it is off indefinitely.

The plaintiffs in the Wade case allege that they or their loved ones developed non-Hodgkin lymphoma because of exposure to Monsanto’s glyphosate-based herbicides, including the popular Roundup brand. More than 50,000 people are making similar allegations against the company, and are additionally claiming that Monsanto knew about the risks but failed to warn its customers.

Several trials have been pulled off the docket over the last several weeks as Bayer, which bought Monsanto in 2018, has drawn closer to a global settlement of the litigation. Bayer is looking to pay out roughly $10 billion in total to settle most, if not all, of the claims, according to sources close to the negotiations.

Last week, a California Roundup trial titled Caballero v. Monsanto was officially postponed after more than a week of jury selection activities and the seating of 16 jurors. Sources close to the litigation said settlement terms have now been agreed to in Caballero.

Sources also said the plaintiffs in a Roundup trial scheduled to start February 24th in federal court in San Francisco – Stevick v. Monsanto – are being told their case is unlikely to go forward.

Bayer investors are eager for the company to put an end to the litigation and head off more trials and the publicity that each brings.  Bayer’s lawyers have reportedly negotiated settlement payout for the clients of several large plaintiffs’ firms, but had been unable to reach agreement with two – The Miller Firm of Virginia and Weitz & Luxenberg of New York.

The Miller firm represents the plaintiffs in the Caballero, Wade and Stevick cases. The fact that those cases are now also being postponed or called off indicates Bayer and the Miller firm likely have come to an agreement, or are near one, observers said.

The first three trials went badly for Monsanto and Bayer as outraged juries awarded over $2.3 billion in damages to four plaintiffs. Trial judges lowered the jury awards to a total of roughly $190 million, and all are under appeal.

Reuters reported that Bayer is considering a settlement provision that would bar plaintiffs’ lawyers involved in the litigation from advertising for new clients.

Mediator Ken Feinberg declined to comment. Feinberg was appointed last May by U.S. District Judge Vince Chhabria to facilitate the settlement process. Last month, Feinberg said he was “cautiously optimistic” that a “national all-in” settlement of the U.S. lawsuits was near.

St. Louis Roundup cancer trial reset for Wednesday as California trial called off

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The drama continues in the closely watched battle between lawyers defending the former Monsanto Co. and those representing thousands of cancer victims who claim exposure to Monsanto’s Roundup herbicide gave them or a family member non-Hodgkin lymphoma.

On Friday, a California trial was officially postponed after more than a week of jury selection activities and the seating of 16 jurors. Instead of proceeding with opening statements, that trial has now been postponed indefinitely, with a case management conference set for March 31.

Meanwhile, the multi-plaintiff trial that was postponed just before opening statements last week in St. Louis has been rescheduled to open next Wednesday, sources close to the litigation said.

The St. Louis trial is particularly problematic for Monsanto because it involves four plaintiffs, including one woman whose husband died of non-Hodgkin lymphoma, and because the judge has ruled that the trial can be broadcast over the Courtroom View Network and through feeds to television and radio stations. Lawyers for Monsanto’s German owner Bayer AG argued against broadcasting the trial, saying the publicity endangers its executives and witnesses.

Several trials have been pulled off the docket over the last several weeks as Bayer, which bought Monsanto in 2018, has drawn closer to a global settlement of what amounts to well more than 50,000 claims – some estimates are more than 100,000. Bayer is looking to pay out roughly $10 billion in total to settle the claims, according to sources close to the negotiations.

The lawsuits all allege that the Monsanto was well aware of scientific research demonstrating there were human health risks tied to its glyphosate-based herbicides but did nothing to warn consumers, working instead to manipulate the scientific record to protect company sales.

Bayer investors are eager for the company to put an end to the litigation and head off more trials and the publicity that each brings.  Bayer’s lawyers have reportedly negotiated settlement payout for the clients of several large firms, but have been unable to reach agreement with two large plaintiffs’ firms – The Miller Firm of Virginia and Weitz & Luxenberg of New York.  The Miller firm represents the plaintiffs in both the California case just pulled from the docket and in the St. Louis case just put back on.

Shares rose last week when the St. Louis trial was abruptly postponed as lead attorneys from the two plaintiffs’ firms – Mike Miller and Perry Weitz – left the courthouse just before opening statements were scheduled to begin in order to continue last-minute talks with Bayer attorneys.

The postponement has frustrated onlookers, including the crew from Courtroom View Network, which remained at the courthouse this week awaiting news of when the trial might resume. They were told Friday morning only that the trial would not resume on Monday. They learned later it would resume Wednesday instead.

The first three trials went badly for Monsanto and Bayer as outraged juries awarded over $2.3 billion in damages to four plaintiffs. Trial judges lowered the jury awards to a total of roughly $190 million, and all are under appeal.

Those trials turned a public spotlight on internal Monsanto records  that show how Monsanto engineered scientific papers proclaiming the safety of its herbicides that falsely appeared to be created solely by independent scientists; used third parties to try to discredit scientists reporting harm with glyphosate herbicides; and collaborated with Environmental Protection Agency officials to protect Monsanto’s position that its products were not cancer-causing.

Bayer settlement of Roundup cancer claims still up in air

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Jurors selected to hear a St. Louis case pitting cancer victims against Monsanto have been told the trial that was postponed indefinitely last week could resume as early as next Monday, a court spokesman said, an indication that efforts by Monsanto owner Bayer AG to end nationwide litigation over the safety of Roundup herbicides is still in flux.

In another sign that a deal has yet to be secured,  jury selection in a separate Roundup cancer trial – this one in California – was continuing this week. The trials in St. Louis and California involve plaintiffs who allege they or their loved ones developed non-Hodgkin lymphoma because of exposure to glyphosate-based herbicides made by Monsanto, including the popular Roundup brand. Tens of thousands of plaintiffs are making similar claims in lawsuits filed around the United States.

Bayer bought Monsanto in June of 2018 just as the first trial in the mass tort litigation was getting underway.  Bayer’s share price was hammered after a unanimous jury found that Monsanto’s herbicides were the cause of the plaintiff’s cancer in that case and that Monsanto had hidden evidence of the cancer risk from the public.

Two additional trials results in similar jury findings and drew worldwide media attention to damning internal Monsanto documents that show the company engaged in a number of deceptive practices over many decades to defend and protect the profitability of its herbicides.

Bayer investors are eager for the company to put an end to the litigation and head off more trials and the publicity that each brings.  Shares rose last week when the St. Louis trial was abruptly postponed as attorneys for the plaintiffs huddled with attorneys for Bayer and indicated a global settlement of the litigation was near.

Numbers of $8 billion-$10 billion have been floated for weeks by litigation sources as a potential settlement total for the mass of cases that has dogged Bayer ever since it bought Monsanto for $63 billion.

Bayer has already negotiated settlement terms with several of the law firms leading the litigation, but has been unable to reach an agreement with the plaintiffs’ firms of Weitz & Luxenberg and The Miller Firm. Together the two firms represent close to 20,000 plaintiffs, making their participation in a settlement a key element to a deal that will appease investors, said sources close to the litigation.

Sources said that the two sides were “very close” to a deal.

In separate, but related news, The Kellogg Company said this week that it was moving away from using grains that have been sprayed with glyphosate shortly before harvest as ingredients in its consumer snacks and cereals. The practice of using glyphosate as a desiccant was marketed by Monsanto for years as a practice that could help farmers dry out their crops before harvesting, but food product testing has demonstrated that the practice commonly leaves residues of the weed killer in finished foods like oatmeal.

Kellogg’s said it is “working with our suppliers to phase out using glyphosate as pre-harvest drying agent in our wheat and oat supply chain in our major markets, including the U.S., by the end of 2025.”

St. Louis Roundup trial postponed as large settlement appears near

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Update – Statement from Bayer: “The parties have reached an agreement to continue the Wade case in Missouri Circuit Court for St. Louis. The continuance is intended to provide room for the parties to continue the mediation process in good faith under the auspices of Ken Feinberg, and avoid the distractions that can arise from trials.  While Bayer is constructively engaged in the mediation process, there is no comprehensive agreement at this time. There also is no certainty or timetable for a comprehensive resolution.”

The highly anticipated opening of  what would have been a fourth Roundup cancer trial was postponed indefinitely on Friday amid settlement negotiations between Monsanto owner Bayer AG and attorneys representing thousands of people who claim their cancers were caused by exposure to Monsanto’s glyphosate-based herbicides.

St. Louis City Circuit Court Judge Elizabeth Hogan issued an order stating only “cause continued.” The order came after lead lawyers from the plaintiffs’ firms of New York-based Weitz & Luxenberg and The Miller Firm of Virginia left Hogan’s courtroom unexpectedly shortly before opening statements were due to begin at mid-morning Friday. Sources close to the legal teams initially said opening statements were pushed back until early afternoon to allow for time to see if the plaintiffs’ attorneys and lawyers for Bayer could finalize a resolution that would settle tens of thousands of lawsuits. But by early afternoon the proceedings were called off and it was widely speculated that a deal had been achieved.

Numbers of $8 billion-$10 billion have been floated for weeks by litigation sources as a potential settlement total for the mass of cases that has dogged Bayer ever since it bought Monsanto in June of 2018 for $63 billion. The company’s share prices has been sharply depressed by repeated trial losses and large jury awards against the company in the three trials held to date.

Many more trials were to be held over the next few weeks and months, pressuring Bayer to settle the cases in time to assuage investors at its annual shareholders’ meeting in April.

Bayer officials have confirmed that more than 42,000 plaintiffs have filed lawsuits against Monsanto. But litigation sources say there are now more than 100,000 plaintiffs lined up with claims, though the current total number of actual filed claims is unclear.

The Weitz firm and the Miller firm combined represent the claims of roughly 20,000 plaintiffs, according to sources close to the firms. Mike Miller, who heads the Miller firm, is the lead attorney in the St. Louis trial that had been set to open Friday.

Miller has been a high-profile hold-out in the settlement talks with Bayer as several other lead plaintiffs’ attorneys have already signed on to a deal with the German pharmaceutical giant. Bayer needs to be able to achieve a resolution with a majority of the outstanding claims in order to appease disgruntled investors.

Mediator Ken Feinberg said last week that it was unclear if there could be a global settlement achieved without Miller. Miller was seeking “what he thinks is appropriate compensation,” Feinberg said. U.S. District Judge Vince Chhabria appointed Feinberg to act as a mediator between Bayer and the plaintiffs’ attorneys last May.

The jury for the St. Louis trial had already been selected and the four plaintiffs and their family members were present Friday morning, lining the front row of the small courtroom.

Monsanto’s lawyers made a bid earlier Friday to block broadcasting of the trial by local television and radio stations but Judge Hogan ruled against the company. Friday’s trial would have been the first to take place in the St. Louis area, where Monsanto was headquartered for more than 100 years.

The first three trials went badly for Monsanto and its German owner Bayer AG as outraged juries awarded over $2.3 billion in damages to four plaintiffs. Trial judges lowered the jury awards to a total of roughly $190 million, and all are under appeal.

The trials have turned a public spotlight on internal Monsanto record  that showed how Monsanto engineered scientific papers proclaiming the safety of its herbicides that falsely appeared to be created solely by independent scientists; used third parties to try to discredit scientists reporting harm with glyphosate herbicides; and collaborated with Environmental Protection Agency officials to protect Monsanto’s position that its products were not cancer-causing.

Dust-up over media ahead of Roundup cancer trial opening

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Lawyers representing the opposing sides of the upcoming Monsanto Roundup cancer trial due to open Friday in St. Louis were huddled away from the courthouse on Thursday amid speculation that settlement talks between the plaintiffs attorneys and Monsanto owner Bayer AG were at a critical juncture.

In the absence of the attorneys, confusion over media access to trial proceedings erupted at a hastily called hearing at the St. Louis City Circuit Court after a clerk for Judge Elizabeth Hogan erroneously informed reporters that if they planned to observe the trial proceedings via a live feed from Courtroom View Network (CVN) they would need individual approval from the court. Reporters were told they must make an application for a court hearing on whether or not they could watch the live feed the court has agreed to allow CVN to provide.

CVN then sent a notice out to journalists alerting them to the fact that they may be barred from simply watching the proceedings remotely: “We’ve been informed that the Court has seemingly imposed a requirement that any member of the media wishing to watch the Roundup video feed via CVN must obtain specific permission from the court to do so. Our attorney is trying to contact the judge ASAP to resolve this, and hopefully it will be resolved,” said an email sent from CVN to journalists.

Additionally, the hearing was to take up the matter of whether or not CVN can provide pool access to certain broadcast news stations. Radio and television outlet that want to share some of the proceedings with their audiences will need to make individual pleas to the judge.

The hearing was aborted because attorneys for Bayer, who have objected to broadcasting the trial, were not present. Now the pool access issue is to be taken up Friday morning before opening statements in the trial, Gross said.

The limitations on simply watching the trial announced by the judge’s clerk turned out to be inaccurate, according to court spokesman Thom Gross. There are sharp limits on those who will be watching, however. No “downloading, recording, rebroadcasting or reposting of any content, including screen shots” is allowed.

The debate over how much visibility the trial could receive has been a lingering concern for Bayer as it seeks to resolve tens of thousands of lawsuits filed against its Monsanto unit alleging Roundup and other glyphosate-based herbicides cause non-Hodgkin lymphoma. The plaintiffs additionally allege that Monsanto should have warned users but instead covered up the risks of its herbicides.

Evidence in three trials concluded to date has sparked global outrage over the corporate conduct of Monsanto, as plaintiffs’ attorneys have introduced internal Monsanto records in which company executives discussed ghostwriting scientific literature, secretly deploying third parties to discredit independent scientists, and benefiting from cozy relationships with officials at the Environmental Protection Agency.

Bayer has said that televising the St. Louis trial could endanger its employees, including former Monsanto executives.

Several of the plaintiffs’ law firms that spear-headed the nationwide litigation have agreed to cancel or postpone multiple trials, including two that involved young children with cancer, as part of the settlement talks with Bayer.

Bayer had made no secret of its desire to settle the mass tort litigation before any more trials take place. But one of the largest caseloads of plaintiffs is held by Virginia lawyer Mike Miller, and Miller has thus far refused to postpone the trials for his plaintiffs, apparently shrugging off settlement offers. Miller’s firm is providing lead counsel for the St. Louis trial and another in California that is still in the process of jury selection.

The Miller firm has several more trials coming up for its plaintiffs.