St. Louis Roundup Cancer Trial Reset for January, Talk of Bayer Settlement

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The much-anticipated Roundup cancer trial set to get underway in two weeks in Monsanto’s former hometown of St. Louis is being rescheduled,  according to the a spokeswoman for the St. Louis County Court where the trial was set to begin Aug 19.

Court spokeswoman Christine Bertelson said Judge Brian May, who is overseeing the case of Gordon v. Monsanto, communicated late Monday that the trial was being continued, but no official order has yet been entered into the court file.  Jury questionnaires were due next week and the voir dire selection of the jury was set for Aug. 18 with opening statements Aug. 19.

Judge May is rescheduling the trial for January and will issue an order within the next few days, according to Bertelson.

Aimee Wagstaff, lead attorney for plaintiff Sharlean Gordon, said that a continuance was a possibility but nothing official was determined at this point.

“The judge has not entered an order continuing the trial,” Wagstaff said. “Of course, as with every trial, a continuance is always a possibility for factors often outside control of the parties. Ms. Gordon is ready to try her case on August 19 and will be disappointed if the case is in fact continued. We are ready on whatever day the trial does commence.”

Gordon developed non-Hodgkin lymphoma after using Roundup herbicides for 25 years at her residence in South Pekin, Illinois. Gordon has suffered extensive debilitation due to her disease. Gordon’s stepfather, who also used Roundup at the family home where Gordon lived into adulthood,  died of cancer.   The case  is actually derived from a larger case filed in July 2017 on behalf of more than 75 plaintiffs. Gordon is the first of that group to go to trial.

Before selling to Germany-based Bayer AG last summer, Monsanto was headquartered in the St. Louis, Missouri area for decades, and still maintains a large employment and philanthropic presence there. Bayer recently announced it would add 500 new jobs to the St. Louis area.

Last week, Judge May denied Monsanto’s motion seeking a summary judgment in favor of Monsanto, and denied the company’s bid to exclude plaintiff’s expert witnesses.

Bayer has been under great pressure to settle the cases, or at least avoid the specter of another high-profile courtroom loss after losing all three of the first Roundup cancer trials. The company is currently facing more than 18,000 plaintiffs alleging that exposure to Monsanto’s glyphosate-based herbicides, such as Roundup, caused them to develop non-Hodgkin lymphoma. The lawsuits allege that Monsanto knew of the cancer risk but failed to warn users and worked to suppress scientific information about the cancer risk.

It is not uncommon for parties to discuss a potential settlement ahead of trial, and it would not be surprising for Bayer to offer a settlement for the Gordon case alone given the negative publicity that has been associated with each of the three trials. Evidence publicized through the trials has exposed years of secretive conduct by Monsanto that juries have found warranted more than $2 billion in punitive damages. The judges in the cases have also been harshly critical of what the evidence has shown about Monsanto’s conduct.

U.S. District Court Judge Vince Chhabria said this about the company: “There’s a fair amount of evidence that the only thing Monsanto cared about was undermining the people who were raising concerns about whether Roundup caused cancer. Monsanto didn’t seem concerned at all about getting at the truth of whether glyphosate caused cancer.”

Last week, Bloomberg reported that Bayer AG Chief Executive Officer Werner Baumann said he would consider a “financially reasonable” settlement. The company’s shares have plummeted since the first jury verdict came down Aug. 10 awarding $289 million to California school groundskeeper Dewayne “Lee” Johnson. Monsanto has appealed the verdict.

Some legal observers said that Bayer could be angling to delay the trial and/or simply distract plaintiff’s attorneys with settlement speculation.

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

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

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

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

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

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

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

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

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

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

Sick Children Among Cancer Victims Suing Monsanto Over Roundup

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A 12-year-old boy suffering from cancer is among the newest plaintiffs taking on Monsanto and its German owner Bayer AG in growing litigation over the safety of Roundup herbicides and Monsanto’s handling of scientific concerns about the products.

Lawyers for Jake Bellah were in court Monday in Lake County Superior Court in Lakeport, California arguing that Bellah’s young age and diagnosis of non-Hodgkin lymphoma (NHL) qualified him for “trial preference,” or a speedy trial. In their motion, lawyers for the Baum Hedlund law firm of Los Angeles asked for a trial that would begin before the end of this year, within 120 days after a judge’s order if their motion is granted.

Monsanto lawyers opposed the request, arguing that the company would need more time to prepare a defense given the unusual scientific issues of surrounding alleged causation of cancer in a child.

The four plaintiffs who have already had trials against Monsanto were all adults diagnosed with non-Hodgkin lymphoma, and all were victorious. Bellah would likely be the first case of a child with cancer to challenge Monsanto before a jury.

In May, a jury in Oakland, California ordered Monsanto to pay more than $2 billion in damages to Alberta and Alva Pilliod, a married couple who both suffer from NHL they blame on exposure to Roundup. That followed a verdict in March in which a San Francisco jury ordered Monsanto to pay roughly $80 million in damages to plaintiff Edwin Hardeman who also suffers from NHL.  On July 15, the judge in that case reduced the award to $25 million. Last year jurors in state court in San Francisco ordered Monsanto to pay $289 million  in damages to school groundskeeper Dewayne “Lee” Johnson, who has been diagnosed with a terminal type of non-Hodgkin lymphoma.  The judge in that case lowered the total verdict to $78 million and the verdict is now on appeal.

Lawyers representing Bellah said the child was exposed to Monsanto’s glyphosate-based herbicide products repeatedly over many years as he played in his family’s yard and around their garden area where his father frequently sprayed the chemicals.

Bellah developed B-cell lymphoma and has been hospitalized and treated with chemotherapy and is currently in remission, according to Pedram Esfandiary, one of the family’s attorneys.

We’re looking forward to having more trials,” said Esfandiary. “It’s unfortunate that the victims include not only hardworking folks like Lee and the Pilliods but also people at the start of their lives.  He is entitled to his day in court.”

A ruling on the Bellah request for a speedy trial is expected by the end of July.

Another lawsuit brought on behalf of a sick child was filed July 12 in Alameda County Superior Court in California, also by the Baum Hedlund firm.

In that case, the plaintiff is identified only as G.B. Bargas. Her father Richard Bargas is listed as a plaintiff individually and on behalf of his daughter. The child’s mother Ronza Bargas is also a plaintiff. The complaint alleges that the child was diagnosed with NHL as a result of exposure to Roundup.

The addition of children to the mass litigation comes as Bayer is exploring whether or not to try to settle the cases. The company’s shares have been battered by the repeated losses in court, and by the revelations of questionable Monsanto conduct with respect to scientific and public scrutiny of its products.

In his court ruling reducing the damages awarded in the Hardeman case, U.S. District Judge Vince Chhabria said that Monsanto’s actions were “reprehensible.” He said evidence showed “Monsanto employees crassly attempting to combat, undermine or explain away challenges to Roundup’s safety.”

He said the company showed a “lack of concern about the risk that its product might be carcinogenic.”

Judge Cuts Amount Monsanto Owner Bayer Owes Cancer Victim

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A federal judge has slashed the punitive damages a jury ordered Monsanto to pay to cancer victim Edwin Hardeman from $75 million to $20 million, despite the judge’s description of Monsanto’s conduct surrounding questions about the safety of its Roundup herbicide as “reprehensible.”

U.S. District Judge Vince Chhabria ruled Monday that the jury’s decision in the Hardeman case to award punitive damages of $75 million was “constitutionally impermissible.” By lowering it to $20 million, combined with the compensatory damages awarded by the jury, the total the agrochemical company owes Hardeman is $25,267,634.10, the judge said. The original verdict handed down by the six-member jury was $80 million.

Judge Chhabria had many harsh words for Monsanto, which was purchased last year by Bayer AG. He wrote in his ruling that the “evidence presented at trial about Monsanto’s behavior betrayed a lack of concern about the risk that its product might be carcinogenic.”

“Despite years of colorable claims in the scientific community that Roundup causes NHL, Monsanto presented minimal evidence suggesting that it was interested in getting to the bottom of those claims… While Monsanto repeatedly intones that it stands by the safety of its product, the evidence at trial painted the picture of a company focused on attacking or undermining the people who raised concerns, to the exclusion of being an objective arbiter of Roundup’s safety,” Judge Chhabria said in his ruling.

“For example, while the jury was shown emails of Monsanto employees crassly attempting to combat, undermine or explain away challenges to Roundup’s safety, not once was it shown an email suggesting that Monsanto officials were actively committed to conducting an objective assessment of its product. Moreover, because the jury was aware that Monsanto has repeatedly sold – and continues to sell – Roundup without any form of warning label, it was clear that Monsanto’s “conduct involved repeated actions,” rather than “an isolated incident,” the judge wrote.

Judge Chhabria did offer some supportive words for Monsanto’s position, writing that there was no evidence that Monsanto actually hid evidence from the Environmental Protection Agency (EPA), or “had managed to capture the EPA.”

And, the judge noted that no evidence was presented showing that Monsanto “was in fact aware that glyphosate caused cancer but concealed it, thus distinguishing this case from the many cases adjudicating the conduct of the tobacco companies.”

The Hardeman case is one of thousands pending against Monsanto for which Bayer is liable after purchasing the company in June of 2018. Since the purchase, four plaintiffs in three trials have won damages against the company. 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.

Michael Baum, one of the team of attorneys leading the Roundup litigation, said the judge’s decision was wrong.

“The Hardeman jurors carefully weighed the evidence and rendered a rational verdict in line with well recognized jury instructions and case law. There is no valid basis for disturbing their punitive damages award—why bother having jurors sacrifice weeks of their lives if a judge can just substitute his judgment for theirs despite so much evidence supporting their conclusions,” Baum said in a statement.

Bayer Internal Emails Says Seeks to “Regain Public Trust” Amid Monsanto Mess

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With legal and shareholder pressure mounting, Bayer AG on Thursday was preparing to launch an initiative to “regain public trust” after its acquisition last year of Monsanto Co. brought Bayer thousands of lawsuits filed by cancer victims and damning revelations of corporate deception surrounding years of health concerns about Monsanto’s glyphosate-based Roundup herbicides.

The plan calls for seeking a new alternative for glyphosate, the chemical herbicide introduced by Monsanto in 1974. Monsanto pushed the chemical to such pervasive use that glyphosate is considered the most widely used herbicide in history and residues of the weed killer are commonly found now in food, water, and human urine. Despite Monsanto denials of adverse human health and environmental impacts, scientific studies have tied Monsanto’s glyphosate-based herbicide products to a range of disease and illness and have documented weed resistance problems, pollinator declines, soil degradation and water contamination issues, among other concerns.

According to an email dated June 13 authored by Bayer CEO Werner Baumann, Bayer plans to publish an advertisement on Friday that outlines “an initial set of commitments” pertaining to glyphosate, agriculture and global sustainability. The email was obtained and publicized by Friends of the Earth- Canada and could not immediately be authenticated by US Right to Know.

“Glyphosate will continue to play an important role in agriculture and in our portfolio. But nature is far from one-size-fits-all. With the global success of glyphosate came widespread use, weed resistance, and in some instances unintended misapplication.  Farmers deserve more choice. That’s why we will invest approximately 5 billion Euros in additional methods for combating weeds over the next decade. We are committed to equipping the world’s farmers with the best in agricultural technology and locally informed training on how to use it,” the email states.

The email states that Bayer will be working to “elevate our efforts in transparency…” and sustainability and engagement with shareholders.

“As the new leader in agriculture, we aim to set standards that not only align with the norms of our industries, but push all of us to be better,” the email states.

Bayer shares have dropped 44 percent since it acquired Monsanto last year, shortly before the first of three trial losses to cancer victims claiming exposure to Monsanto’s Roundup caused them to develop non-Hodgkin lymphoma. More than 13,000 people are suing with similar claims and so far juries have awarded more than $2 billion in damages, including punitive damages as punishment for what plaintiffs’ attorneys have characterized as malicious tactics aimed at suppressing scientific evidence that Monsanto’s herbicides can cause cancer.

Beatrice Olivastri, CEO, Friends of the Earth Canada, said that she is skeptical about the sincerity of the effort. “The charm campaign is a waste of shareholder money,” she said. “This seems like more of their same tactics.”

Bayer’s Raymond Kerins,  senior vice president for communications and government, did not respond to a request for comment about the email, but has stated previously that the company’s goal is professional, transparent and honest engagement surrounding the Monsanto issues.

See link to Bayer email here. 

Monsanto, Bayer Struggle to Keep Up with Growing Roundup Cancer Litigation

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Turmoil both in and outside courtrooms appears to be growing for Monsanto, a unit of German owner Bayer AG, as the company works to meet overlapping deadlines for appeal actions in the three Roundup cancer trials Monsanto has lost so far at the same time that the company must prepare for new trials at the end of this summer.

The weight of the litigation burden was laid out by a Monsanto/Bayer attorney in a recent California Court of Appeal filing seeking more time to file a brief in Monsanto’s appeal of the first case it lost last summer.

That plaintiff in that case, Dewayne “Lee” Johnson, was awarded $289 million by a San Francisco jury who determined that Johnson’s non-Hodgkin lymphoma was caused by his exposure to Monsanto’s glyphosate-based herbicides. As part of the $289 million, the jury ordered $250 million in punitive damages after Johnson’s attorneys presented evidence that Monsanto suppressed the evidence of the risks of its herbicides.

The trial judge lowered the damage award to $78 million, and Johnson is cross-appealing to reinstate the full verdict.

Monsanto’s appeal argues, among other things, that if the court refuses to reverse the judgment there should be no punitive damage award at all, even if Johnson is awarded a small amount for compensatory damages.

In the recent filing, Bryan Cave attorney K. Lee Marshall told the court he needs an extension of time to prepare the next brief that is due in the Johnson appeal because of the various deadlines in the multiple cases Monsanto is defending against. He cited post-trial motion deadlines in Pilliod v. Monsanto, in which a jury ordered Monsanto pay more than $2 billion in damages, and deadlines in Hardeman v. Monsanto, in which a jury ordered the company to pay roughly $80 million in damages. Monsanto is seeking to overturn both those verdicts as well.

Last week, Monsanto filed notice in federal court that it – along with insurer Liberty Mutual Insurance Co. – had posted a $100 million bond as it plans to appeal the Hardeman verdict. The company has a July 2 hearing on its request for the trial judge to set aside the verdict and order a new trial.

“In light of the imminent post-trial motion briefing deadlines in Hardeman and Pilliod, I am, and will be, devoting a significant amount of time over the next several weeks to the post-trial motions that challenge the enormous verdicts in those cases. These time-sensitive commitments will substantially impair my ability to devote time to prepare… in this appeal,” Marshall told the court.

As well, he wrote, the Johnson case is “unusually complex and presents numerous complicated issues.” In-house counsel at Bayer wants to review, comment on and edit the reply brief before it is filed, he added.

The Johnson appeal is being handled on an expedited basis due to Johnson’s declining health and terminal cancer diagnosis. Johnson’s attorneys have said they expect oral arguments to be set for the appeals by September or October, with a final ruling expected within 90 days following oral arguments, possibly by Thanksgiving.

If Monsanto loses its bid for a new trial in the Hardeman case the company is expected to file an appeal with the Ninth Circuit Court of Appeals in a process that would likely drag into next spring, attorneys involved in the litigation said.

Meanwhile, the next trial is set to get underway Aug. 19 in St. Louis, the longtime hometown for Monsanto before it was acquired by Bayer in June 2018. The case involves plaintiff Sharlean Gordon, a cancer-stricken woman in her 50s.  The case was filed in July 2017 on behalf of more than 75 plaintiffs and Gordon is the first of that group to go to trial.

More than 13,000 plaintiffs have filed suit against Monsanto in the United States alleging they developed non-Hodgkin lymphoma due to exposure to Monsanto’s glyphosate-based weed killers, such as Roundup.

As the litigation proceeds, Bayer investors grow more restless and many are pushing Bayer to seriously consider a global settlement, sources say. Various analysts put a potential settlement number between $2 billion to $3 billion on the low side, up to $10 billion or slightly more as the high end of a range.

Bayer’s shares have fallen 44 percent since the Johnson verdict was handed down last August.

An internal Bayer email dated June 13 revealed that the company is launching a new marketing effort aimed at distancing itself from Monsanto’s questionable conduct.

The email sent from Bayer CEO Werner Baumann stated: “We are currently facing questions of public trust. This challenge is also an opportunity for us to demonstrate what we stand for. That’s why we are
raising the bar as we are setting off on a journey to elevate our efforts in transparency,
sustainability and how we engage with our stakeholders. As the new leader in agriculture, we
aim to set standards that not only align with the norms of our industries, but push all of us to be
better.”

“Transparency is our foundation. We will evolve our engagement policies that ground all of our
interactions with scientists, journalists, regulators and the political sphere in transparency,
integrity and respect,” the internal Bayer email states.

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

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(UPDATED June 5 with comment from Scientific Reports)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Among the other factual errors:

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

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

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

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

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

(Article first appeared on EcoWatch.)

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

In Their Hands – Jurors in 3rd Monsanto Roundup Cancer Trial Weigh Evidence

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Jury deliberations were set to resume Monday morning in Oakland, California in the case of an elderly married couple who allege that many years of use of Monsanto’s Roundup herbicide caused them each to develop debilitating non-Hodgkin lymphoma.

Lawyers for plaintiffs Alva and Alberta Pilliod and legal counsel for Monsanto and its German owner Bayer AG presented contrasting closing arguments last week. Jurors then had one day of deliberations on Thursday before taking Friday and the weekend off.

Jurors have a lot of evidence to sift through after 17 days of trial testimony that included 16 live witnesses and 11 more testifying via video. The trial transcript, as noted by Monsanto attorney Tarek Ismail, is more than 5,000 pages long.

The 12-member jury has already had several questions, sending notes to Alameda County Superior Court Judge Winifred Smith with queries about some medical articles and about the testimony of Monsanto expert witness  Dr. Celeste Bello, a medical oncologist hematologist who practices at the Moffitt Cancer Center in Florida. Bello testified that epidemiological data does not show a valid association  between Roundup and non-Hodgkin lymphoma. She said that both Alva and Alberta Pilliod had a history of medical problems and weakened immune systems, which likely led to their cancers. Bello told jurors she agreed with the Environmental Protection Agency’s determination that glyphosate, the key ingredient in Roundup, is not likely to be carcinogenic to humans.

Jurors also asked about some medical articles and a query about how many of the jurors need to agree on individual questions on the verdict forms.  That question prompted Monsanto attorney Ismail to comment to the judge that “we obviously have — seemingly have some sort of split in the jury.”

Nine of the 12 jurors must agree on a verdict but Ismail noted that the instructions to the jury
allows for different groups of nine jurors to agree on different parts of the verdict form. Here is a bit of his exchange with Judge Smith on the company’s concern:

Mr. ISMAIL: “So, for example, Jurors 1 through 9 could say  yes on question 1, and Jurors 4 through 12 agree on — say yes to question 2, but you only have six people who think liability is found.

THE COURT: That’s a function of California law.

MR. ISMAIL: It is. I recognize that. I know you’re not going to change it here. But I’m preserving the objection that it is —

THE COURT: I understand what you’re saying.

MR. ISMAIL: It seems like an inconsistency in the way — where it’s written that a verdict requires nine, and a verdict here would actually potentially not require nine; it could require fewer than nine. And I understand Your Honor is bound by the way the law is written in the CACI, but we’re preserving that objection in light of that.

THE COURT: Well, I have to follow California law, which does explicitly say that not all nine have to answer each question the same way.

Both Pilliods have diffuse large B-cell lymphoma though Alberta’s developed in her brain while Alva’s invaded his pelvis and spine.  Pilliod attorney Brent Wisner asked the jury to award approximately $37 million in compensatory damages for Alberta Pilliod and $18 million for Alva Pilliod. He suggested jurors should consider a punitive damage award for the couple of $1 billion.

“Go Get ‘Em” – Jury Deliberations Starting in Roundup Cancer Trial

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After dramatic day-long closing arguments in which the plaintiffs’ attorney suggested $1 billion in punitive damages would be appropriate, jury deliberations were getting underway on Thursday in the trial pitting a married couple with cancer against Monsanto.

Alva and Alberta Pilliod, each diagnosed with non-Hodgkin lymphoma, were in Alameda County Superior Court in Oakland, California, on Wednesday as attorney Brent Wisner implored jurors to agree with allegations that the development of the Pilliods’ debilitating illnesses was due to their many years of use of Monsanto’s Roundup herbicides.

Monsanto strongly denies its products are carcinogenic. But Pilliod attorney Brent Wisner told jurors there was ample evidence of cancer concerns and rather than warn customers of the risks, the company engaged in 45 years of deceptive tactics that manipulated the scientific record about the dangers of its products.

He said jurors should consider ordering at least $892 million in punitive damages as that represented one year of profits for Monsanto, which last year was acquired by Bayer AG. He said a better figure might be $1 billion in order to send a message to Bayer and Monsanto. Additionally, he asked for approximately $37 million in compensatory damages for Alberta Pilliod and $18 million for Alva Pilliod.

“Hold them accountable,” Wisner told jurors in a three-hour closing argument. During his presentation to jurors, Wisner reminded them of evidence introduced over the lengthy trial.  He walked them through several scientific studies he said showed links to cancer, showed them excerpts of internal Monsanto emails that talked about ghostwriting scientific papers and covertly paying front groups such as the American Council on Science and Health (ACSH) to publicly promote the safety of its herbicides. He reminded jurors of documents showing cozy ties to certain Environmental Protection Agency (EPA) officials who back the safety of Monsanto’s glyphosate-based herbicides, and documents showing Monsanto strategies to discredit international cancer scientists who classify glyphosate as a probable human carcinogen.

Wisner said Monsanto buried studies that found harm with its products and promoted ghostwritten studies that promoted safety, engaging in conduct that was “reprehensible.”

“That ladies and gentlemen is how you manipulate science,” he said.

In contrast, Monsanto attorney Tarek Ismail told jurors in his closing argument that both Pilliods had multiple health problems and weakened immune systems and their cancers were not connected by any legitimate evidence to their use of Roundup.

“After all this time that we’ve been here in this trial, the plaintiffs haven’t showed you a single document or medical record or test specifically linking either plaintiff’s NHL to Roundup,” said Ismail.  “And the thing is, you don’t have to agree with us on all of these or even some, because, if you follow any of these paths, you get to the same answer, that the plaintiffs have not met their burden of proof.”

Ismail told jurors that Wisner was manipulating their emotions, promoting “fear over science” and “emotion over evidence.” Regulatory agencies around the world back the safety of glyphosate and Monsanto herbicides, and aside from some poor choices of language in internal emails, there is no evidence of bad conduct by Monsanto. He said that Wisner was engaging in an “absurd” “charade” and “blatantly trying to manipulate” jurors when he put on gloves during trial testimony to handle a Roundup bottle filled not with the herbicide but with water.

“You folks have worked too hard, been here too long to allow someone to insult your intelligence like that. And I hope you reject it for what it was,” Ismail said.

Sparks flew when it was Wisner’s turn for rebuttal, as he loudly and angrily held up multiple notes he said were handed to him by colleagues pointing out falsehoods in various statements made by Ismail.

“Get out of here!” Wisner yelled, prompting Judge Winifred Smith to admonish him to calm down. He ended his rebuttal again imploring jurors to find for the Pilliods and order damages in such a high amount as to send a message to Monsanto and Bayer.

His final words to jurors – “Go get ’em.”

See transcript of closing arguments here. 

The Pilliod case is the third Roundup cancer case to go to trial. Last summer a jury ordered Monsanto to pay $289  million in damages to cancer victim Dewayne “Lee” Johnson. The judge in the case later lowered the amount to $78 million. A second trial, also held in San Francisco in a separate case, resulted in an $80.2 million verdict for plaintiff Edwin Hardeman.

There are more than 13,000 other plaintiffs also alleging Monsanto’s herbicides cause cancer and the company has hidden the risks. Bayer shares have been rocked by the verdicts and investors are nervously awaiting the outcome of this trial. The company has lost more than $30 billion in shareholder value after buying Monsanto last summer.

New Monsanto documents expose cozy connection to Reuters reporter

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We knew from previously released documents that Reuters reporter Kate Kelland was a key connection for Monsanto in its endeavor to undermine and discredit the World Health Organization’s International Agency for Research on Cancer (IARC) scientists who classified glyphosate as a probable carcinogen in 2015. Now we have additional evidence of the coziness of the connection.

Not only did Kelland write a 2017 story that Monsanto asked her to write in exactly the way Monsanto executive Sam Murphey asked her to write it, (without disclosing to readers that Monsanto was the source,) but now we see evidence that a draft of a separate story Kelland did about glyphosate was delivered to Monsanto  before it was published, a practice typically frowned on by news outlets.

The emails shows the story written by Kelland was emailed to Murphey with the subject line “My draft, Confidential.”

The story, headlined “New study on Monsanto weed killer to feed into crucial EU vote,” was about preliminary findings of an unpublished study by an Italian scientist showing that experimental rats exposed to glyphosate at levels equivalent to those allowed in humans showed no initial adverse reaction. The final version was published on April 13, 2017.

And another newly released email details how Monsanto’s fingerprints were on at least two other Kelland stories. The March 1, 2016 email speaks of the involvement of Monsanto’s “Red Flag” campaign  in an already published Reuters story that was critical of  IARC and the desire to influence a second similar story Reuters was planning.  Red Flag is a Dublin-based PR and lobbying firm that works to defend glyphosate safety and promote pro-glyphosate messaging via third parties such as farmer groups.

According to the partly redacted email, “following engagement by Red Flag a number of months ago, the first piece was quite critical of IARC.”  The email goes on: “You may also be aware that Red Flag is in touch with Reuters regarding the second report in the series…”

A little over a month later, Reuters published Kelland’s story headlined “Special Report: How the World Health Organization’s cancer agency confuses consumers.” 

Those revelations follow the disclosure earlier this year of email correspondence detailing how Kelland helped Monsanto drive a false narrative about cancer scientist Aaron Blair in his role as head of the IARC working group that classified glyphosate as a probable carcinogen.  Internal Monsanto correspondence dated April 27, 2017 shows that Monsanto executive Sam Murphey sent the company’s desired narrative to Kelland with a slide deck of talking points and portions of the Blair deposition that was not filed in court.

On June 14, 2017, Kelland authored a controversial story based on what she said were “court documents,” that in reality were documents fed to her by Murphey. Because the documents Kelland cited were not really filed in court they were not publicly available for easy fact-checking by readers. By  falsely attributing the information as based on court documents she avoided disclosing Monsanto’s role in driving the story.

When the story came out, it portrayed Blair as hiding “important information”that found no links between glyphosate and cancer from IARC. Kelland wrote that a deposition showed that Blair “said the data would have altered IARC’s analysis” even though a review of the actual deposition shows that Blair did not say that.

Kelland provided no link to the documents she cited, making it impossible for readers to see for themselves how far she veered from accuracy.

The story was picked up by media outlets around the world, and promoted by Monsanto and chemical industry allies. Google advertisements were even purchased promoting the story. This story was also used by Monsanto to attack IARC on multiple fronts, including an effort by Monsanto to get Congress to strip funding from IARC.

There is nothing inherently wrong in receiving story suggestions that benefit companies from the companies themselves. It happens all the time. But reporters must be diligent in presenting facts, not corporate propaganda.

Reuters editor Mike Williams has defended Kelland’s work and declined to issue a clarification or correction on the Aaron Blair piece. He said “It was a great piece, and I stand by it fully.” Reuters “ethics editor” Alix Freedman also supports Kelland’s Blair story, despite the evidence of Monsanto’s involvement and the lack of disclosure of that involvement to readers. “We are proud of it and stand behind it,” Freedman said in an email.

On a personal note, I spent 17 years as a reporter at Reuters covering Monsanto and I am horrified at this violation of journalistic standards. It is particularly noteworthy that Alix Freedman is the same person who told me I was not allowed to write about many independent scientific studies of Monsanto’s glyphosate that were showing harmful impacts .

At the very least, Kelland should have been honest with readers and acknowledged that Monsanto was her source – on that story, and apparently many others. Reuters owes the world – and IARC – an apology.

For more background on this topic, see this article.