Pursuing truth and transparency for public health

New Roundup cancer trials loom despite Bayer settlement efforts

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Ken Moll is girding for battle.

Moll, a Chicago-based personal injury attorney, has dozens of lawsuits pending against the former Monsanto Co., all alleging the company’s Roundup weed killers cause non-Hodgkin lymphoma, and he is now preparing several of those cases for trial.

Moll’s firm is one of a handful that have refused settlement offers made by Monsanto owner Bayer AG, deciding instead to take the fight over the safety of Monsanto’s glyphosate-based herbicide products back into courtrooms around the country.

Though Bayer has assured investors it is bringing closure to the costly Roundup litigation through settlement deals totaling more than $11 billion, new Roundup cases are still being filed, and notably several are positioned for trial, with the earliest set to start in July.

“We’re going forward,” Moll said. “We’re doing this.”

Moll has lined up many of the same expert witnesses who helped win the three Roundup trials held to date. And he plans to rely heavily on the same internal Monsanto documents that provided shocking revelations of corporate misconduct that led juries to award hefty punitive damages to the plaintiffs in each of those trials.

Trial set for July 19

One case with a trial date looming involves a 70-year-old woman named Donnetta Stephens from Yucaipa, California who was diagnosed with non-Hodgkin lymphoma (NHL) in 2017 and has suffered from numerous health complications amid multiple rounds of chemotherapy. Stephens was recently granted a trial “preference,” meaning her case has been expedited, after her lawyers informed the court that Stephens is “in a perpetual state of pain,” and losing cognition and memory. The case is set for trial July 19 in San Bernardino County Superior Court in California.

Several other cases have either already been granted preference trial dates, or are seeking trial dates, for elderly people and at least one child suffering from NHL the plaintiffs allege was caused by exposure to Roundup products.

The litigation is not over. It is going to be a continued headache for Bayer and Monsanto,” said Andrew Kirkendall, whose Texas-based firm is helping represent Stephens and other clients seeking speedy trials.

Kirkendall said his firm has lawsuits moving forward to trial in California, Oregon, Missouri, Arkansas and Massachusetts.

This has the potential to be the next asbestos litigation,” he said, referring to decades of lawsuits brought over asbestos-related health problems.

Bayer rejection

Bayer bought Monsanto in June 2018 just as the first Roundup cancer trial was getting underway. Juries in each of the cases that went to trial found that Monsanto’s herbicides do cause cancer and that Monsanto spent decades hiding the risks. Jury awards totaled well over $2 billion, though the judgments have been ordered reduced in the appeals process.

After coming under intense pressure from investors to find a way to cap liability, Bayer announced in June that it had reached a $10 billion settlement to resolve most of more than 100,000 Roundup cancer claims in the United States. Since that time it has been signing deals with law firms around the country, including the firms that have led the litigation since the first suits were filed in 2015. The company is also trying to get court approval for a separate $2 billion plan to try to keep Roundup cancer cases that could be filed in the future from going to trial.

Bayer has been unable to settle with all of the firms with Roundup cancer clients, however. According to multiple plaintiffs’ attorneys, their firms rejected settlement offers because the amounts generally ranged from $10,000 to $50,000 per plaintiff – compensation the attorneys deemed inadequate.

“We said absolutely no,” Moll said.

Another law firm pushing cases forward for trial is the San Diego, California-based Singleton Law Firm, which has roughly 400 Roundup cases pending in Missouri and about 70 in California.

The firm is seeking an expedited trial now for 76-year-old Joseph Mignone, who was diagnosed with NHL in 2019. Mignone completed chemotherapy more than a year ago but also has endured radiation to treat a tumor on his neck, and continues to suffer debilitation, according to the court filing seeking trial preference.

Stories of suffering

There are many stories of suffering within the files of the plaintiffs who are still hoping to get their day in court against Monsanto.

  • Retired FBI agent and college professor John Schafer began using Roundup in 1985 and used the herbicide multiple times during spring, fall and summer months until 2017, according to court records. He did not wear protective clothing until warned by a farmer friend in 2015 to wear gloves. He was diagnosed with NHL in 2018.
  • Sixty-three year-old Randall Seidl applied Roundup over 24 years, including regularly spraying the product around his yard in San Antonio, Texas from approximately 2005 to 2010 and then around property in North Carolina until 2014 when he was diagnosed with NHL, according to court records.
  • Robert Karman applied Roundup products beginning in 1980, generally using a hand-held sprayer to treat weeds on a weekly basis roughly 40 weeks a year, according to court records. Karman was diagnosed with NHL in July 2015 after his primary care doctor discovered a lump in his groin. Karman died in December of that year at the age of 77.

Plaintiffs’ attorney Gerald Singleton said Bayer’s only path to putting the Roundup litigation behind it is to put a clear warning label on its herbicide products, alerting users to the risk of cancer.

“That is the only way this thing is going to be over and done,” he said. Until then, he said, “we’re not going to stop taking cases.”

Bayer’s class action settlement plan draws widespread outrage, opposition

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(Updated March 10 to include judge’s order delaying hearing until May 12)

More than 90 law firms and more than 160 lawyers have notified a federal court judge overseeing U.S. Roundup litigation that they oppose Monsanto owner Bayer AG’s $2 billion plan to settle future claims the company expects to be brought by people diagnosed with cancer they blame on use of Monsanto’s herbicide products.

In recent days, nine separate objections to the plan and four amicus briefs have been filed with the U.S. District Court for the Northern District of California, letting Judge Vince Chhabria know the extent of opposition to the proposed class settlement. Chhabria has been overseeing thousands of Roundup cancer lawsuits in what is called ‘multidistrict litigation’ (MDL).

On Monday, the National Trial Lawyers (NTL) joined in the opposition on behalf of its 14,000 members. The group said in their filing with the court that they agree with the opposition that “the proposed settlement seriously endangers access to justice for millions of people in the proposed class, would prevent Monsanto’s victims from holding it accountable, and would reward Monsanto in numerous respects.”

The group reiterated in its filing the fear that if Bayer’s proposed settlement is approved, it will set a dangerous precedent for plaintiffs in future, unrelated cases: “It will hurt the proposed class members, not help them. This type of settlement would also provide an untenable template for other corporate tortfeasors to avoid appropriate liability and consequences for their conduct… the proposed class settlement is not how a ‘system of justice’ works and thus such a settlement should never be approved.”

The $2 billion proposed settlement is aimed at future cases and is separate from the $11 billion Bayer has earmarked to settle existing claims brought by people alleging they developed non-Hodgkin lymphoma (NHL) due to exposure to Monsanto’s weed killers. The people impacted by the class settlement proposal are individuals who have been exposed to Roundup products and either already have NHL or may develop NHL in the future, but who have not yet taken steps to file a lawsuit.

No punitive damages

One of the key problems with the Bayer plan, according to critics, is that everyone in the United States who meets the criteria as a potential plaintiff will automatically become part of the class and subject to its provisions if they do not actively opt out of the class within 150 days after Bayer issues notifications of the formation of the class. The notification proposed is not sufficient, the critics say. Moreover, the plan then strips those people – who may not even choose to be a part of the class – from the right to seek punitive damages if they do file a lawsuit.

Another provision garnering criticism is a proposed four-year “standstill” period blocking the filing of new lawsuits.

The critics also object to the proposed formation of a science panel that would act as a “guidepost” for an “extension of compensation options into the future” and to provide evidence about the carcinogenicity – or not – of Bayer’s herbicides.

The initial settlement period would run for at least four years and could be extended after that period.  If Bayer elects not to continue the compensation fund after the initial settlement period, it will pay an additional $200 million as an “end payment” into the compensation fund, the settlement summary states.

Struggling for a solution

Bayer has been struggling to figure out how to put an end to the Roundup cancer litigation since buying Monsanto in 2018. The company lost all three trials held to date and lost the early rounds of appeals seeking to overturn the trial losses.

Juries in each of the three trials found not only that Monsanto’s glyphosate-based herbicides such as Roundup cause cancer, but also that Monsanto spent decades hiding the risks.

The small group of lawyers who put the plan together with Bayer say it will “save lives” and will provide “substantial benefits” to people who believe they developed cancer from exposure to the company’s herbicide products.

But that group of lawyers stands to receive $170 million for their work with Bayer to implement the proposed plan, a fact critics say taints their involvement and objectivity. None of the lawyers involved in putting the class action plan together with Bayer actively represented any plaintiffs in the broad Roundup litigation before this point, the critics point out.

In one of the opposition filings, lawyers seeking a rejection of the proposed settlement wrote this:

“This proposed settlement is opposed by those most familiar with the litigation of cases involving dangerous products like Roundup because they recognize that this proposal would benefit Monsanto and class counsel at the expense of the millions of people exposed to Roundup.

“Although this Roundup MDL has been underway for over four years, and other Roundup cases have been litigated in state courts, the impetus for this engineered class action settlement does not come from lawyers who have been handling Roundup cases and believe that an alternative method for resolving them is essential. Instead, the lawyers who are behind this settlement – and it is surely the lawyers and not Roundup victims – are class-action lawyers who seek to impose their views on all those who have been exposed to Roundup, in exchange for a very large fee.

“But an even bigger winner here will be Monsanto, which will get a four-year stay of litigation by class members, who will also lose their right to seek punitive damages and be saddled with the results of an ill-conceived science panel. In exchange, class members will be shunted into an alternate compensation system that features modest payments, increased complexity, and high hurdles to qualify.”

Delay sought

Bayer’s settlement plan was filed with the court on Feb. 3, and must be approved by Judge Chhabria in order to become effective. A prior settlement plan submitted last year was scorned by Chhabria and then withdrawn.

A hearing on the matter was set for March 31 but the attorneys who put the plan together with Bayer have asked Judge Chhabria to delay the hearing until May 13, citing the breadth of the opposition they must address. The judge responded with an order resetting the hearing for May 12.

“These filings totaled more than 300 pages, in addition to more than 400 pages of attached declarations and exhibits,” the lawyers said their request for more time. “The objections and amicus briefs raise a host of issues, including, among other things, the overall fairness of the settlement, multiple constitutional attacks on the settlement and proposed advisory science panel, technical challenges to the notice program, attacks on the fairness of the compensation fund, and challenges to predominance, superiority, and the adequacy of class (and subclass) counsel.”

The lawyers who filed the proposed plan said they could use the additional time before the hearing “to engage with objectors” to “streamline or narrow the issues that need to be contested at the hearing.”

Deaths continue

Amid the arguments over Bayer’s proposed settlement, plaintiffs continue to die. In what is referred to as a “Suggestion of Death,” lawyers for plaintiff Carolina Garces filed a notification with the federal court on March 8 that their client had died.

Several plaintiffs suffering from non-Hodgkin lymphoma have died since the start of the litigation in 2015.

The Monsanto Papers – Deadly Secrets, Corporate Corruption, and One Man’s Search for Justice

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USRTK Research Director Carey Gillam’s new book is out now and garnering glowing reviews. Here is a brief description of the book from publisher Island Press:

Lee Johnson was a man with simple dreams. All he wanted was a steady job and a nice home for his wife and children, something better than the hard life he knew growing up. He never imagined that he would become the face of a David-and-Goliath showdown against one of the world’s most powerful corporate giants. But a workplace accident left Lee doused in a toxic chemical and facing a deadly cancer that turned his life upside down. In 2018, the world watched as Lee was thrust to the forefront of one the most dramatic legal battles in recent history.

The Monsanto Papers is the inside story of Lee Johnson’s landmark lawsuit against Monsanto. For Lee, the case was a race against the clock, with doctors predicting he wouldn’t survive long enough to take the witness stand. For the eclectic band of young, ambitious lawyers representing him, it was a matter of professional pride and personal risk, with millions of their own dollars and hard-earned reputations on the line.

With a gripping narrative force, The Monsanto Papers takes readers behind the scenes of a grueling legal battle, pulling back the curtain on the frailties of the American court system and the lengths to which lawyers will go to fight corporate wrongdoing and find justice for consumers.

See more about the book here. Buy the book at AmazonBarnes & Noble, publisher Island Press or independent book sellers.

Reviews

“A powerful story, well told, and a remarkable work of investigative journalism. Carey Gillam has written a compelling book from beginning to end, about one of the most important legal battles of our time.”  — Lukas Reiter, TV executive producer and writer for “The Blacklist,” “The Practice,” and “Boston Legal”

“The Monsanto Papers blends science and human tragedy with courtroom drama in the style of John Grisham. It is a story of corporate malfeasance on a grand scale – a chilling revelation of the chemical industry’s greed, arrogance, and reckless disregard for human life and the health of our planet. It is a must read.”  — Philip J. Landrigan, MD, Director, Program for Global Public Health and the Common Good, Boston College

“Veteran investigative journalist Carey Gillam tells Johnson’s story in her latest book, “The Monsanto Papers,” a fast-paced, engaging account of how Monsanto and Bayer’s fortunes changed dramatically in such a short span of time. Despite the subject matter — complicated science and legal proceedings — “The Monsanto Papers” is a gripping read that provides an easy-to-follow explanation of how this litigation unfolded, how the jurors reached their verdict and why Bayer appears to be, in effect, throwing up a white flag now.”  — St. Louis Post-Dispatch

“The author builds a convincing case that Monsanto was more interested in protecting the reputation of its cash cow than heeding scientific evidence of its dangerous properties. Gillam is especially good at rendering the complex dynamics of the legal personalities, which adds a further humanizing dimension to Johnson’s story…An authoritative takedown of a corporation that evidently cares little for public health.”  ― Kirkus

“Gillam narrates an of-the-moment reckoning with a major corporation whose products have been marketed as safe since the 1970s. As an examination of both corporate malfeasance and legal maneuvering in torts cases, Gillam’s book personifies the need for consumer protections and safety.”  ― Booklist

“A great read, a page turner. I was totally engrossed by the deception, distortions, and lack of decency of the company.”  — Linda S. Birnbaum, Former Director, National Institute of Environmental Health Sciences and National Toxicology Program, and Scholar in Residence, Duke University

“A powerful book that sheds light on Monsanto and others who have been untouchable for so long!”
— John Boyd Jr., Founder and President, National Black Farmers Association

About the Author

Investigative journalist Carey Gillam has spent more than 30 years reporting on corporate America, including 17 years working for Reuters international news agency. Her 2017 book about pesticide dangers, Whitewash: The Story of a Weed Killer, Cancer, and the Corruption of Science, won the 2018 Rachel Carson Book Award from the Society of Environmental Journalists and has become a part of the curriculum in several university environmental health programs. Gillam is currently Research Director for the non-profit consumer group U.S. Right to Know and writes as a contributor for The Guardian.

Bayer’s plan for settling future Roundup cancer claims faces broad opposition

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Dozens of U.S. law firms have formed a coalition to fight a new $2 billion settlement proposal by Monsanto owner Bayer AG that aims to contain the company’s ongoing liability related to claims that Roundup herbicides cause a type of cancer known as non-Hodgkin lymphoma (NHL).

The settlement is designed to compensate people who have been exposed to Roundup products and either already have NHL or may develop NHL in the future, but who have not yet taken steps to file a lawsuit.

The small group of lawyers who put the plan together with Bayer say it will “save lives” and provide substantial benefits to people who believe they developed cancer from exposure to the company’s herbicide products.

But many lawyers criticizing the plan say if it is approved it would set a dangerous precedent for other types of litigation involving large numbers of people injured by the products or practices of powerful corporations.

“This is not the direction we want the civil justice system to go,” said attorney Gerald Singleton, whose firm has joined with more than 60 other law firms to oppose Bayer’s plan. “There is no scenario under which this is good for plaintiffs.”

Bayer’s settlement plan was filed with the U.S. District Court for the Northern District of California on Feb. 3, and must be approved by U.S. District Judge Vince Chhabria in order to become effective. A prior settlement plan submitted last year was scorned by Chhabria and then withdrawn. The judge has been overseeing the federal multidistrict Roundup litigation involving thousands of plaintiffs from around the United States.

Responses to the settlement plan are due March 3 and a hearing on the matter is set for March 31.

A key concern is that current Roundup users who may develop cancer and want to sue in the future will automatically be subject to terms of the class settlement unless they officially opt out of the settlement within a specific time period. One of the terms they would be subject to would bar them from seeking punitive damages in any future lawsuit.

Those terms and others laid out are wholly unfair to farm workers and others who are expected to develop cancer in the future from exposure to the company’s herbicide products, according to Singleton. The plan benefits Bayer and provides “blood money” to the four law firms that worked with Bayer to design the plan, he said.

Those firms working with Bayer to draft and administer the plan would receive a proposed $170 million if the plan takes effect.

Elizabeth Cabraser, one of the lawyers who crafted the new proposed settlement, said the criticism is not a fair description of the settlement. In truth, she said, the plan “provides significant and urgently-needed outreach, education, healthcare access, and compensation benefits” for people who have been exposed to Monsanto’s Roundup herbicides but have not yet developed non-Hodgkin lymphoma (NHL).

“We seek approval of this settlement because it will save lives and enhance quality of life through early diagnosis, assist people… inform them and raise public awareness about the link between Roundup and NHL…” she said.

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

The new proposed settlement is aimed at future cases and is separate from the $11 billion Bayer has earmarked to settle existing U.S. Roundup cancer claims. The people impacted by the class settlement proposal are only individuals who have been exposed to Roundup but are not yet in litigation and have taken no steps toward any litigation.

Bayer has been struggling to figure out how to put an end to the Roundup cancer litigation since buying Monsanto in 2018. The company lost all three trials held to date and lost the early rounds of appeals seeking to overturn the trial losses.

Juries in each of the trials found not only that Monsanto’s glyphosate-based herbicides cause cancer but also that Monsanto spent decades hiding the risks.

Though the proposed settlement states that it “addresses the four concerns the Court raised regarding the prior, withdrawn settlement,” Singleton and other lawyers involved in the opposition said the new settlement proposal is just as bad as the first.

In addition to the concerns that class members would not have the right to seek claims for punitive damages, the critics also object to the four-year “standstill” period blocking the filing of new lawsuits. The critics also say the plan for notifying people of the class settlement is not sufficient. Individuals would have 150 days following the notification to “opt out” of the class. If they do not opt out, they are automatically in the class.

Critics also object to the proposed formation of a science panel that would act as a “guidepost” for an “extension of compensation options into the future” and to provide evidence about the carcinogenicity – or not – of Bayer’s herbicides.  Given Monsanto’s documented history of manipulating scientific findings, the science panel work would be suspect, said Singleton.

The initial settlement period would run for at least four years and could be extended after that period.  If Bayer elects not to continue the compensation fund after the initial settlement period, it will pay an additional $200 million as an “end payment” into the compensation fund, the settlement summary states.

“Substantial compensation” offered

The law firms that drafted the agreement with Bayer said in their filing to the court that the settlement is structured to provide potential future plaintiffs with “what most serves their interests,” including an option for “substantial compensation” if they develop non-Hodgkin lymphoma.

The plan calls for the establishment of a compensation fund to make awards of between $10,000 and $200,000 per individual class member. “Accelerated Payment Awards” of $5,000 would be available on an expedited basis, requiring just a showing of exposure and diagnosis.

Those people first exposed to Roundup products at least 12 months prior to their diagnosis would be qualified for awards. Awards of  more than $200,000 could be made for “extraordinary circumstances.” Those qualified class members who were diagnosed with NHL before January 1, 2015, would not receive awards more than $10,000, according to the plan. 

The settlement would provide free legal advice and provide ”support to assist class members in navigating, registering, and applying for Settlement benefits.”

Additionally, the proposal states that the settlement will fund medical and scientific research into the diagnosis and treatment of NHL.

Notably, the plan states that no one will lose their right to sue unless they choose to accept compensation from the compensation fund, and no one needs to make that choice until that individual class member is diagnosed with NHL. They would not be able to seek punitive damages but could seek other compensation.

“Any class members who do not file a claim and accept individual compensation retain their right to sue Monsanto for compensatory damages on any legal theory, including personal injury, fraud, misrepresentation, negligence, fraudulent concealment, negligent misrepresentation, breach of warranty, false advertising, and violation of any consumer protection or unfair and deceptive acts or practices statute,” the plan states.

To alert people to the class action settlement, notices would be mailed/emailed to 266,000 farms, businesses and organizations and government entities where the company’s herbicides could have been used as well as to 41,000 people who have non-Hodgkin lymphoma and asked to receive information about their disease. Additionally posters would be mailed to 2,700 stores asking them to post notices of the class action settlement.

As part of the proposed settlement, Bayer said it would seek permission from the Environmental Protection Agency (EPA) to add information on the labels of its glyphosate-based products such as Roundup that would provide links to access to scientific studies and other information about glyphosate safety. But critics say providing a website links is inadequate and Bayer needs to put a straightforward warning of cancer risk on the weed killing products.

The proposed class action settlement threatens to affect “hundreds of thousands or even millions” of people who have been exposed to Roundup and “raises ‘unique’ and profound questions” under the U.S. Constitution, according to a court filing in opposition to the Bayer plan made by plaintiffs’ lawyer Elizabeth Graham.

Graham told the court that if the plan is approved it could have a “dramatic effect not only on this litigation, but on the future of mass tort litigation.”

Black farmers

 The National Black Farmers Association (NBFA) weighed in on the issue on Wednesday, submitting a lengthy filing with Chhabria’s court that states a “substantial proportion” of its more than 100,000 members “have been exposed to and potentially injured by Roundup, and its active ingredient glyphosate.”

Many of the farmers have already developed non-Hodgkin’s lymphoma they blame on Roundup use, and “an even larger proportion fear that they will soon develop symptoms,” the NBFA filing states.

The NBFA wants to see Roundup products removed from commerce or other changes made to protect farmers, the filing states.

The concerns of the NBFA need to be addressed by the court, particularly as Bayer looks to “settle a class action with a set of attorneys who purport to be representing the future interests of all farmers who have been exposed to Roundup but are yet to develop the cancers it causes.”

Lawsuits in Australia

As Bayer works to bring an end to Roundup litigation in the United States, the company is also dealing with similar claims by farmers and others in Australia. A class action filed against Monsanto is underway, and the lead plaintiff John Fenton, who applied Roundup as part of farm work. Fenton was diagnosed with non-Hodgkin lymphoma in 2008.

A series of key dates have been established: Monsanto has until March 1 to provide discovery documents to plaintiffs’ lawyers and June 4 is the deadline set for the exchange of expert evidence.  The parties are to enter into mediation by July 30 and if nothing is resolved the case would go to trial in March 2022.

Fenton said while he would “love the opportunity” to go to trial and tell his story, he hopes mediation will resolve the matter. “I think the consensus is starting to change thanks to what has been happening in the US. Farmers are more aware and I believe they do take more precautions than they used to.

Fenton said he hopes that Bayer ultimately will put a warning label on Monsanto’s glyphosate herbicides.

“At least with a warning the user can make up their own mind about what PPE (personal protective equipment) they choose to wear.”

Another Roundup study finds links to potential human health problems

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(Updated February 17, adding criticism of study)

A new scientific paper examining the potential health impacts of Roundup herbicides found links between exposure to the weed killing chemical glyphosate and an increase in a type of amino acid known to be a risk factor for cardiovascular disease.

The researchers made their determinations after exposing pregnant rats and their newborn pups to glyphosate and Roundup through drinking water. They said they looked specifically at the effects of glyphosate-based herbicides (GBH) on urinary metabolites and interactions with the gut microbiome in the animals.

The researchers said they found a significant increase of an amino acid called homocysteine in male rat pups exposed to glyphosate and Roundup.

“Our study provides initial evidence that exposures to commonly used GBH, at a currently acceptable human exposure dose, is capable of modifying urine metabolites in both rat adults and pups,” the researchers stated.

The paper, titled “Low-dose exposure of glyphosate-based herbicides disrupt the urine metabolome and its interaction with gut microbiota,” is authored by five researchers affiliated with the Icahn School of Medicine at Mount Sinai in New York and four from the Ramazzini Institute in Bologna, Italy. It was published in the journal Scientific Reports February 5.

The authors acknowledged many limitations with their study, including a small sample size, but said their work showed that “gestational and early-life low-dose exposure to glyphosate or Roundup significantly altered multiple urine metabolomic biomarkers, in both dams and offspring.”

The study is the first on urinary metabolomic changes induced by glyphosate-based herbicides at doses currently considered safe in humans, the researchers said.

The paper follows the publication last month of a study in the journal Environmental Health Perspectives that found glyphosate and a Roundup product can alter the composition of the gut microbiome in ways that may be linked to adverse health outcomes. Scientists from the Ramazzini Institute were also involved in that research.

Robin Mesnage, one of the authors of the paper published last month in Environmental Health Perspectives, took issue with the validity of the new paper. He said the data analysis showed the differences detected between the animals exposed to glyphosate and those not exposed – the control animals – could have been similarly detected with randomly generated data.

“Overall, the data analysis doesn’t support the conclusion that glyphosate disrupts the urine metabolome and the gut microbiota of the exposed animals,” said Mesnage. “This study will only further confuse a bit more the debate on the toxicity of glyphosate.”

Several recent studies on glyphosate and Roundup have found an array of concerns.

Bayer, which inherited Monsanto’s glyphosate-based herbicide brand and its glyphosate-tolerant genetically engineered seed portfolio when it bought the company in 2018, maintains that an abundance of scientific study over decades confirms that glyphosate does not cause cancer. The U.S. Environmental Protection Agency and many other international regulatory bodies also do not consider glyphosate products to be carcinogenic.

But the World Health Organization’s International Agency for Research on Cancer in 2015 said a review of scientific research found ample evidence that glyphosate is a probable human carcinogen.

Bayer has lost three out of three trials brought by people who blame their cancers on exposure to Monsanto’s herbicides, and Bayer last year said it would pay roughly  $11 billion to settle more than 100,000 similar claims.

 

 

Bayer makes new $2 billion plan to head off future Roundup cancer claims

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Monsanto owner Bayer AG said Wednesday it was attempting again to manage and resolve potential future Roundup cancer claims, laying out a $2 billion deal with a group of plaintiffs’ attorneys that Bayer hopes will win approval from a federal judge who rejected a prior plan last summer.

Notably, the deal calls for Bayer to seek permission from the Environmental Protection Agency (EPA) to add information on the labels of its glyphosate-based products such as Roundup that would provide  links to access to scientific studies and other information about glyphosate safety.

Additionally, according to Bayer, the plan calls for establishment of a fund that would compensate “qualified claimants” over a four-year program; setting up an advisory science panel whose findings could be used as evidence in potential future litigation; and development of research and diagnostic programs for medical and/or scientific research into the diagnosis and treatment of non-Hodgkin lymphoma.

The plan must be approved by U.S. District Judge Vince Chhabria of the U.S. District Court for the Northern District of California. Chhabria has been overseeing the Roundup multidistrict litigation.

Bayer said qualifying class members over the next four years would be eligible for levels of compensatory awards based on guidelines set forth in the agreement. The “settlement class” refers to people who were exposed to Roundup products but have not yet filed a lawsuit claiming injury from that exposure.

Settlement class members would be eligible for compensation between $10,000 and $200,000, Bayer said.
According to the agreement, the distribution of the settlement fund would break out as follows:
* Compensation Fund – At least $1.325 billion
* Diagnostic Accessibility Grant Program – $210 million
* Research Funding Program – $40 million
* Settlement Administration Costs, Advisory Science Panel Costs, Settlement Class Notice Costs, Taxes,
and Escrow Agent Fees and Expenses – Up to $55 million
The proposed settlement plan for future class action litigation is separate from the settlement agreement Bayer made with lawyers for tens of thousands of plaintiffs who have already brought claims alleging exposure to Roundup and other Monsanto glyphosate-based weed killers caused them to develop non-Hodgkin lymphoma.
Bayer has been struggling to figure out how to put an end to the Roundup cancer litigation since buying Monsanto in 2018. The company lost all three trials held to date and lost the early rounds of appeals seeking to overturn the trial losses.
Juries in each of the trials found not only that Monsanto’s glyphosate-based herbicides cause cancer but also that Monsanto spent decades hiding the risks.

New study examines Roundup herbicide impact on honeybees

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A group of Chinese researchers has found evidence that commercial glyphosate-based herbicide products are harmful to honeybees at or below recommended concentrations.

In a paper published in the online journal Scientific Reports, researchers affiliated with the Chinese Academy of Agricultural Sciences in Beijing and the Chinese Bureau of Landscape and Forestry, said they found a range of negative impacts on honeybees when exposing the bees to Roundup – a glyphosate-based product sold by Monsanto owner Bayer AG.

The memory of the honeybees was “significantly impaired after exposure to Roundup” suggesting that chronic honeybee exposure to the weed killing chemical “may have a negative impact on the search and collection of resources and the coordination of foraging activities” by bees, the researchers said.

As well, the “climbing ability of honeybees significantly decreased after treatment with the recommended concentration of Roundup,” the researchers found.

The researchers said there is a need for a “reliable herbicide spraying early warning system” in rural areas of China because beekeepers in those areas are “usually not informed before herbicides are sprayed” and “frequent poisoning incidents of honeybees” occur.

The production of many important food crops is dependent upon honeybees and wild bees for pollination, and noted declines in bee populations has raised concerns around the world about food security.

A paper out of Rutgers University published last summer warned that “crop yields for apples, cherries and blueberries across the United States are being reduced by a lack of pollinators.”

A death and a settlement as Bayer continues trying to end Roundup litigation

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Seven months after Bayer AG announced plans for a sweeping settlement of U.S. Roundup cancer litigation, the German owner of Monsanto Co. continues to work to settle tens of thousands of claims brought by people suffering from cancer they say was caused by Monsanto’s weed killing products. On Wednesday, one more case appeared to find closure, though the plaintiff did not live to see it.

Lawyers for Jaime Alvarez Calderon, agreed earlier this week to a settlement offered by Bayer after U.S. District Judge Vince Chhabria on Monday denied summary judgment in favor of Monsanto, allowing the case to move closer to a trial.

The settlement will go to Alvarez’s four sons because their 65-year-old father, a longtime winery worker in Napa County, California, died just over a year ago from non-Hodgkin lymphoma he blamed on his work spraying Roundup around winery property for years.

In a hearing held in federal court Wednesday, Alvarez family lawyer David Diamond told Judge Chhabria that the settlement would close out the case.

After the hearing, Diamond said Alvarez had worked in the wineries for 33 years, using a backpack sprayer to apply Monsanto’s glyphosate-based herbicides to sprawling acreage for the Sutter Home group of wineries. He would often go home in the evenings with clothing wet with herbicide due to leaks in the equipment and weed killer that drifted in the wind.  He was diagnosed in 2014 with non-Hodgkin lymphoma, undergoing multiple rounds of chemotherapy and other treatments before dying in December 2019.

Diamond said he was happy to settle the case but has “400 plus” more Roundup cases still unresolved.

He is not alone. At least half a dozen other U.S. law firms have Roundup plaintiffs they are seeking trial settings for in 2021 and beyond.

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

In addition to efforts to resolve claims currently pending, Bayer also hopes to create a mechanism for resolving potential claims that it could face from Roundup users who develop non-Hodgkin lymphoma in the future. Its initial plan for handling future litigation was rejected by Judge Chhabria and the company has yet to announce a new plan.

International Life Sciences Institute (ILSI) is a Food Industry Lobby Group

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The International Life Sciences Institute (ILSI) is a corporate-funded nonprofit organization based in Washington DC, with 17 affiliated chapters around the world. ILSI describes itself as a group that conducts “science for the public good” and “improves human health and well-being and safeguards the environment.” However, investigations by academics, journalists and public interest researchers show that ILSI is a lobby group that protects the interests of the food industry, not public health.

Recent news

  • Coca-Cola has severed its longtime ties with ILSI. The move is “a blow to the powerful food organization known for its pro-sugar research and policies,” Bloomberg reported in January 2021.  
  • ILSI helped Coca-Cola Company shape obesity policy in China, according to a September 2020 study in the Journal of Health Politics, Policy and Law by Harvard Professor Susan Greenhalgh. “Beneath ILSI’s public narrative of unbiased science and no policy advocacy lay a maze of hidden channels companies used to advance their interests. Working through those channels, Coca Cola influenced China’s science and policy making during every phase in the policy process, from framing the issues to drafting official policy,” the paper concludes.

  • Documents obtained by U.S. Right to Know add more evidence that ILSI is a food industry front group. A May 2020 study in Public Health Nutrition based on the documents reveal “a pattern of activity in which ILSI sought to exploit the credibility of scientists and academics to bolster industry positions and promote industry-devised content in its meetings, journal, and other activities.” See coverage in The BMJ, Food and drink industry sought to influence scientists and academics, emails show  (5.22.20)

  • Corporate Accountability’s April 2020 report examines how food and beverage corporations have leveraged ILSI to infiltrate the U.S. Dietary Guidelines Advisory Committee, and cripple progress on nutrition policy around the globe. See coverage in The BMJ, Food and soft drink industry has too much influence over US dietary guidelines, report says (4.24.20) 

  • New York Times investigation by Andrew Jacobs reveals that a trustee of the industry-funded nonprofit ILSI advised the Indian government against going ahead with warning labels on unhealthy foods. The Times described ILSI as a “shadowy industry group” and “the most powerful food industry group you’ve never heard of.” (9.16.19) The Times cited a June study in Globalization and Health co-authored by Gary Ruskin of U.S. Right to Know reporting that ILSI operates as a lobby arm for its food and pesticide industry funders.

  • The New York Times revealed the undisclosed ILSI ties of Bradley C. Johnston, a co-author of five recent studies claiming red and processed meat don’t pose significant health problems. Johnston used similar methods in an ILSI-funded study to claim sugar is not a problem. (10.4.19)

  • Marion Nestle’s Food Politics blog, ILSI: true colors revealed (10.3.19)

ILSI ties to Coca-Cola 

ILSI was founded in 1978 by Alex Malaspina, a former senior vice president at Coca-Cola who worked for Coke from 1969-2001. Coca-Cola has kept close ties with ILSI. Michael Ernest Knowles, Coca-Cola’s VP of global scientific and regulatory affairs from 2008–2013, was president of ILSI from 2009-2011. In 2015, ILSI’s president was Rhona Applebaum, who retired from her job as Coca-Cola’s chief health and science officer (and from ILSI) in 2015 after the New York Times and Associated Press reported that Coke funded the nonprofit Global Energy Balance Network to help shift blame for obesity away from sugary drinks.  

Corporate funding 

ILSI is funded by its corporate members and company supporters, including leading food and chemical companies. ILSI acknowledges receiving funding from industry but does not publicly disclose who donates or how much they contribute. Our research reveals:

  • Corporate contributions to ILSI Global amounting to $2.4 million in 2012. This included $528,500 from CropLife International, a $500,000 contribution from Monsanto and $163,500 from Coca-Cola.
  • A draft 2013 ILSI tax return shows ILSI received $337,000 from Coca-Cola and more than $100,000 each from Monsanto, Syngenta, Dow Agrisciences, Pioneer Hi-Bred, Bayer CropScience and BASF.
  • A draft 2016 ILSI North America tax return shows a $317,827 contribution from PepsiCo, contributions greater than $200,000 from Mars, Coca-Cola, and Mondelez, and contributions greater than $100,000 from General Mills, Nestle, Kellogg, Hershey, Kraft, Dr. Pepper, Snapple Group, Starbucks Coffee, Cargill, Uniliver and Campbell Soup.  

Emails show how ILSI seeks to influence policy to promote industry views 

A May 2020 study in Public Health Nutrition adds evidence that ILSI is a food industry front group. The study, based on documents obtained by U.S. Right to Know via state public records requests, reveals how ILSI promotes the interests of the food and agrichemical industries, including ILSI’s role in defending controversial food ingredients and suppressing views that are unfavorable to industry; that corporations such as Coca-Cola can earmark contributions to ILSI for specific programs; and, how ILSI uses academics for their authority but allows industry hidden influence in their publications.

The study also reveals new details about which companies fund ILSI and its branches, with hundreds of thousands of dollars in contributions documented from leading junk food, soda and chemical companies.

A June 2019 paper in Globalization and Health provides several examples of how ILSI advances the interests of the food industry, especially by promoting industry-friendly science and arguments to policymakers. The study is based on documents obtained by U.S. Right to Know via state public records laws.  

The researchers concluded: “ILSI seeks to influence individuals, positions, and policy, both nationally and internationally, and its corporate members deploy it as a tool to promote their interests globally. Our analysis of ILSI serves as a caution to those involved in global health governance to be wary of putatively independent research groups, and to practice due diligence before relying upon their funded studies and/or engaging in relationship with such groups.”   

ILSI undermined obesity fight in China

In January 2019, two papers by Harvard Professor Susan Greenhalgh revealed ILSI’s powerful influence on the Chinese government on issues related to obesity. The papers document how Coca-Cola and other corporations worked through the China branch of ILSI to influence decades of Chinese science and public policy on obesity and diet-related illnesses such as Type 2 diabetes and hypertension. Read the papers:

ILSI is so well-placed in China that it operates from inside the government’s Centre for Disease Control and Prevention in Beijing.

Professor Geenhalgh’s papers document how Coca-Cola and other Western food and beverage giants “helped shape decades of Chinese science and public policy on obesity and diet-related diseases” by operating through ILSI to cultivate key Chinese officials “in an effort to stave off the growing movement for food regulation and soda taxes that has been sweeping the west,” the New York Times reported.  

Additional academic research from U.S. Right to Know about ILSI 

The UCSF Tobacco Industry Documents Archive has over 6,800 documents pertaining to ILSI.  

ILSI sugar study “right out of the tobacco industry’s playbook”

Public health experts denounced an ILSI-funded sugar study published in a prominent medical journal in 2016 that was a “scathing attack on global health advice to eat less sugar,” reported Anahad O’Connor in The New York Times. The ILSI-funded study argued that warnings to cut sugar are based on weak evidence and cannot be trusted.  

The Times story quoted Marion Nestle, a professor at New York University who studies conflicts of interest in nutrition research, on the ILSI study: “This comes right out of the tobacco industry’s playbook: cast doubt on the science,” Nestle said. “This is a classic example of how industry funding biases opinion. It’s shameful.” 

Tobacco companies used ILSI to thwart policy 

A July 2000 report by an independent committee of the World Health Organization outlined a number of ways in which the tobacco industry attempted to undermine WHO tobacco control efforts, including using scientific groups to influence WHO’s decision-making and to manipulate scientific debate surrounding the health effects of tobacco. ILSI played a key role in these efforts, according to a case study on ILSI that accompanied the report. Findings indicate that ILSI was used by certain tobacco companies to thwart tobacco control policies. Senior office bearers in ILSI were directly involved in these actions,” according to the case study. See: 

The UCSF Tobacco Industry Documents Archive has more than 6,800 documents pertaining to ILSI

ILSI leaders helped defend glyphosate as chairs of key panel 

In May 2016, ILSI came under scrutiny after revelations that the vice president of ILSI Europe, Professor Alan Boobis, was also chairman of a UN panel that found Monsanto’s chemical glyphosate was unlikely to pose a cancer risk through diet. The co-chair of the UN Joint Meeting on Pesticide Residues (JMPR), Professor Angelo Moretto, was a board member of ILSI’s Health and Environment Services Institute. Neither of the JMPR chairs declared their ILSI leadership roles as conflicts of interest, despite the significant financial contributions ILSI has received from Monsanto and the pesticide industry trade group. See: 

ILSI’s cozy ties at U.S. Centers for Disease Control and Prevention  

In June 2016, U.S. Right to Know reported that Dr. Barbara Bowman, director of a CDC division charged with preventing heart disease and stroke, tried to help ILSI’s founder Alex Malaspina influence World Health Organization officials to back off policies to reduce sugar consumption. Bowman suggested people and groups for Malaspina to talk to, and solicited his comments on some CDC summaries of reports, the emails show. (Bowman stepped down after our first article was published reporting on these ties.)

This January 2019 study in the Milbank Quarterly describes key emails of Malaspina cozying up to Dr. Bowman. For more reporting on this topic, see: 

ILSI influence on the U.S. Dietary Guidelines Advisory Committee

report by the nonprofit group Corporate Accountability documents how ILSI has major influence on U.S. dietary guidelines via its infiltration of the U.S. Dietary Guidelines Advisory Committee.  The report examines the pervasive political interference of food and beverage transnationals like Coca-Cola, McDonald’s, Nestlé, and PepsiCo, and how these corporations have leveraged the International Life Sciences Institute to cripple progress on nutrition policy across the globe.

ILSI influence in India 

The New York Times reported on ILSI’s influence in India in its article titled, “A Shadowy Industry Group Shapes Food Policy Around the World.”

ILSI has close ties to some Indian government officials and, as in China, the nonprofit has pushed similar messaging and policy proposals as Coca-Cola – downplaying the role of sugar and diet as a cause of obesity, and promoting increased physical activity as the solution, according to the India Resource Center. 

Members of ILSI India’s board of trustees include Coca-Cola India’s director of regulatory affairs and representatives from Nestlé and Ajinomoto, a food additive company, along with government officials who serve on scientific panels that are tasked with deciding about food safety issues.  

Longstanding concerns about ILSI 

ILSI insists it is not an industry lobby group, but concerns and complaints are longstanding about the group’s pro-industry stances and conflicts of interest among the organization’s leaders. See, for example:

Untangle food industry influences, Nature Medicine (2019)

Food agency denies conflict-of-interest claim. But accusations of industry ties may taint European body’s reputation, Nature (2010)

Big Food Vs. Tim Noakes: The Final Crusade, Keep Fitness Legal, by Russ Greene (1.5.17) 

Real Food on Trial, by Dr. Tim Noakes and Marika Sboros (Columbus Publishing 2019). The book describes “the unprecedented prosecution and persecution of Professor Tim Noakes, a distinguished scientist and medical doctor, in a multimillion rand case that stretched over more than four years. All for a single tweet giving his opinion on nutrition.”

Bayer’s bid to settle U.S. Roundup cancer claims making progress

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Monsanto owner Bayer AG is making progress toward a sweeping settlement of thousands of U.S. lawsuits brought by people alleging they or their loved ones developed cancer after exposure to Monsanto’s Roundup herbicides.

Recent correspondence from plaintiffs’ lawyers to their clients underscored that progress, confirming a large percentage of plaintiffs are opting to participate in the settlement, despite complaints by many plaintiffs that they are facing unfairly small payout proposals.

By some calculations, the average gross settlement will leave little to no compensation, perhaps a few thousand dollars, for individual plaintiffs after attorneys’ fees are paid and certain insured medical costs are reimbursed.

Nevertheless, according to a letter sent to plaintiffs in late November by one of the lead law firms in the litigation, more than 95 percent of the “eligible claimants” decided to participate in the settlement plan negotiated by the firm with Bayer. A “settlement administrator” now has 30 days to review the cases and confirm the plaintiffs’ eligibility to receive settlement funds, according to the correspondence.

People can choose to opt out of the settlement and take their claims to mediation, followed by binding arbitration if they wish or try to find a new lawyer who would take their case to trial. Those plaintiffs could have a difficult time finding a lawyer to help them take their case to trial because the law firms agreeing to the settlements with Bayer have agreed not to try any more cases or assist in future trials.

One plaintiff, who asked not to be identified by name due to the confidentiality of the settlement proceedings, said he is opting out of the settlement in hopes of obtaining more money through mediation or a future trial. He said he requires ongoing tests and treatments for his cancer and the proposed settlement structure would leave him nothing to cover those ongoing costs.

“Bayer wants a release by paying as little as possible without going to trial,” he said.

The rough estimate on average gross payouts per plaintiff is about $165,000, lawyers and plaintiffs involved in the discussions have said.  But some plaintiffs could receive far more, and some less, depending upon the details of their case. There are many criteria determining who can participate in the settlement and how much money that person may receive.

To be eligible, the Roundup user has to be a U.S. citizen, have been diagnosed with non-Hodgkin lymphoma (NHL), and had exposures to Roundup for at least one year prior to being diagnosed with NHL.

The settlement agreement with Bayer will be complete when the administrator confirms that more than 93 percent of claimants qualify, according to the terms of the deal.

If the settlement administrator finds a plaintiff ineligible, that plaintiff has 30 days to appeal the decision.

For plaintiffs deemed eligible the settlement administrator will award each case a number of points based on specific criteria. The amount of money each plaintiff will receive is based on the number of points calculated for their individual situation.

Basis points are established using the age of the individual at the time they were diagnosed with NHL and the level of severity of the “injury” as determined by the degree of treatment and outcome. The levels run 1-5. Someone who died from NHL is assigned basis points for a level 5, for instance. More points are given to younger people who suffered multiple rounds of treatment and/or died.

In addition to the basis points, adjustments are allowed that give more points to plaintiffs who had more exposure to Roundup. There are also allowances for more points for specific types of NHL. Plaintiffs diagnosed with a type of NHL called Primary Central Nervous System (CNS) lymphoma receive a 10 percent boost to their points tally, for example.

People can also have points deducted based on certain factors. Here are a few specific examples from the points matrix established for the Roundup litigation:

  • If a Roundup product user died before January 1, 2009, the total points for the claim brought on their behalf will be reduced by 50 percent.
  • If a deceased plaintiff had no spouse or minor children at the time of their death there is a deduction of 20 percent.
  • If a plaintiff had any prior blood cancers before using Roundup their points are cut by 30 percent.
  • If the span of time between a claimant’s Roundup exposure and the diagnosis of NHL was less than two years the points are cut 20 percent.

The settlement funds should begin to flow to participants in the spring with final payments hopefully made by summer, according to lawyers involved.

Plaintiffs can also apply to be part of an “extraordinary injury fund,” set up for a small group of plaintiffs who suffer from severe NHL-related injuries. A claim may be eligible for the extraordinary injury fund if the individual’s death from NHL came after three or more full courses of chemotherapy and other aggressive treatments.

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

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

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

Trial Appeals Continue

Even as Bayer aims to head off future trials with settlement dollars, the company continues to try to overturn the outcomes of the three trials the company lost.

In the first trial loss – the Johnson v. Monsanto case – Bayer lost efforts to overturn the jury finding that Monsanto was liable for Johnson’s cancer at the appellate court level, and in October, the California Supreme Court refused to review the case.

Bayer now has 150 days from that decision to ask for the matter to be taken up by the U.S. Supreme Court. The company has not made a final decision regarding that move, according to a Bayer spokesman, but has indicated previously that it does intend to take such action.

If Bayer does petition the U.S. Supreme Court, Johnson’s attorneys are expected to file a conditional cross-appeal asking the court to examine the judicial actions that slashed Johnson’s jury award from $289 million to $20.5 million.

Other Bayer/Monsanto court cases

In addition to the liability Bayer faces from Monsanto’s Roundup cancer litigation, the company is struggling with Monsanto liabilities in PCB pollution litigation and in litigation over crop damage caused by Monsanto’s dicamba herbicide-based crop system.

A federal judge in Los Angeles last week rejected a proposal by Bayer to pay $648 million to settle class-action litigation brought by claimants alleging contamination from polychlorinated biphenyls, or PCBs, made by the Monsanto.

Also last week, the trial judge in the case of Bader Farms, Inc. v. Monsanto rejected Bayer’s motions for a new trial.  The judge cut the punitive damages awarded by the jury, however, from $250 million to $60 million, leaving intact compensatory damages of $15 million, for a total award of $75 million.

Documents obtained through discovery in the Bader case revealed that Monsanto and chemical giant BASF were aware for years that their plans to introduce a dicamba herbicide-based agricultural seed and chemical system would probably lead to damage on many US farms.

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