glyphosate

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

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Posted on by Carey Gillam

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Whalley left Taylor & Francis in October of 2018.

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

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

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

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

“Serious, Deadly Injury” Cited in New Appeals Court Filing Over Roundup Cancer Claims

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Posted on by Carey Gillam

 A California appeals court should reject efforts by Monsanto to overturn a jury verdict awarding millions of dollars to a school groundskeeper and approve $250 million in punitive damages the jury ordered a year ago this month in the first Roundup cancer trial, according to a brief in the case filed Monday.

The brief filed by lawyers for Dewayne “Lee” Johnson responds to arguments by Monsanto made in the appeal and cross-appeal lodged in the state appellate court. The appeal was initiated last year by Monsanto following an Aug. 10, 2018 jury decision that marked the first of three courtroom losses for the agrochemical giant and its owner Bayer AG. The jury in the Johnson case awarded $289 million in total damages, including $250 in punitive damages. The trial judge then lowered the punitive amount to $39 million for total damages of $78 million.

While Monsanto wants the entire jury decision thrown out, Johnson’s attorneys are asking for the total of $289 million to be restored by the appeals court.

Johnson is one of roughly 18,400 people suing Monsanto over allegations that Monsanto’s glyphosate-based herbicides such as Roundup cause non-Hodgkin lymphoma (NHL) and claims that Monsanto has spent decades covering up the risks.

Both sides in the Johnson appeal are awaiting the scheduling of oral arguments, which are expected within the next couple of months. A decision by the appeals court could come before the end of the year.

The appellate decision could be pivotal. Bayer shares plummeted after the Johnson verdict and have continued to be weighed down by two more jury decisions against Monsanto in two subsequent trials. Bayer has indicated it is ready to talk about a global settlement of the Roundup cancer litigation, and a decision by the appeals court could substantially impact the direction and outcome of settlement talks.

In the brief filed Monday, Johnson’s lawyers argued that Monsanto’s conduct was so “reprehensible” as to warrant much more than a “slap on the wrist,” and cited precedent court decisions finding that punitive damage awards equal to 5 percent of a defendant’s net worth is appropriate for “minimally reprehensible behavior.”

Based on Monsanto’s stipulated net worth of $6.8 billion, the punitive damage award of $250 million equals 3.8% and is “a light punishment considering Monsanto’s highly reprehensible behavior,” lawyers for Johnson stated in their brief. The punitive damage award of $250 million “is not unreasonable and it appropriately serves California’s goals of protecting public health, deterring future corporate malfeasance and punishing Monsanto,” the brief states.

The Johnson argument goes into great detail about evidence obtained through discovery, including internal Monsanto emails in which company scientists discussed ghostwriting scientific literature, Monsanto worries about how to counter building evidence of genotoxicity with its herbicides, the company’s failure to do carcinogenicity testing of its formulations, Monsanto’s cultivation of friendly officials within the Environmental Agency (EPA) for backing, and the company’s secret payments to front groups like the American Council on Science and Health (ACSH) to promote the safety of Monsanto’s herbicides.

Johnson’s attorneys say Monsanto’s deceptive conduct has been similar to that of the tobacco industry.

“The Serious, Deadly Injury Suffered by Johnson Supports a Finding that Monsanto’s Conduct Was Highly Reprehensible,” the Johnson brief states. Johnson’s terminal diagnosis and his very painful physical condition warrants the jury award of $289 million, his lawyers wrote.

“Johnson is suffering from extremely painful, disfiguring lesions all over his body, a consequence of the fatal NHL induced by Roundup,” the brief states. “In light of the high reprehensibility of Monsanto’s behavior, the deathly harm to Johnson, and the high net worth of Monsanto, the punitive damages award of $250 million dollars awarded by the jury comports with due process and should be upheld.”

Monsanto’s brief contradicts the Johnson position on every point and states that there is no legal reason to reinstate the $250 million punitive damage award. The company asserts that because the EPA and other international regulators back the safety of its herbicides, the courts should do the same.

“Monsanto had no duty to warn of a risk that, far from being a prevailing scientific view, worldwide regulators agree does not exist,” the Monsanto brief states. “Reinstatement of the $250 million punitive damage verdict would result in the largest judicially approved award of punitive damages in California history, in a case with exceedingly “thin” evidence of malice or oppression. There is no basis for an award of punitive damages in this case, much less the $250 million awarded by the jury.”

Johnson has additionally failed to establish that Roundup “actually caused his cancer,” according to Monsanto. “Even if Plaintiff introduced some evidence to support a failure-to-warn claim, the worldwide regulatory consensus that glyphosate is not carcinogenic establishes the utter lack of clear and convincing evidence that Monsanto acted with malice,” the company’s brief states.

“The jury’s unusually large compensatory award is just as flawed. It is based on a straightforward legal error—that a plaintiff can recover pain-and-suffering damages for decades beyond his life expectancy—that was induced by counsel’s flagrant attempts to inflame the jury.

“In short, virtually everything in this trial went wrong,” the Monsanto brief states. “Plaintiff is entitled to sympathy, but not to a verdict that ignores sound science, distorts the facts, and subverts controlling law.”

Speculation Over Settlement as Roundup Cancer Trial Postponed

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Posted on by Carey Gillam

The mysterious delay of what was supposed to be a closely watched St. Louis showdown over claims that Monsanto’s Roundup herbicides cause cancer has stirred speculation that a settlement may be in the offing and heartened investors in Monsanto’s German owner Bayer, who feared a fourth trial loss.

The trial in St. Louis, Monsanto’s former long-time hometown, was set to begin Aug. 19 and feature live testimony from several Monsanto executives subpoenaed by the legal team representing plaintiff Sharlean Gordon. Gordon is one of roughly 18,000 plaintiffs suing Monsanto alleging not only that the company’s glyphosate-based herbicides cause non-Hodgkin lymphoma and that the company knew about the risks but rather than warning users instead acted to suppress and manipulate scientific research.

The three previous trials, which Monsanto lost, were all held in California courts where Monsanto executives could not be compelled to testify live in front of a jury. But in St. Louis they would almost certainly be forced to appear. Plaintiff’s counsel had plans to call former Monsanto Chairman Hugh Grant, as well as company scientists William Heydens, Donna Farmer, and William Reeves. Larry Kier, a Monsanto consultant who became caught up in a ghost-writing scandal, was also on the plaintiff’s list to be called as a witness.

Bayer had its own firepower headed for St. Louis in the form of famed attorney Phil Beck. The company has tried three different legal teams for the three trials so far, adding Beck to the case this summer. Beck, of the Chicago-based Barlit Beck law firm, headed George W. Bush’s trial team in the Florida recount litigation that determined the 2000 presidential election. Beck was tapped to represent the United States in United States v. Microsoft,  in one phase of the Microsoft antitrust action.

It was late Monday afternoon when St. Louis County Court Judge Brian May informed court personnel that the Gordon v. Monsanto trial would be postponed until January. May said he would issue an order at a later date, according to court spokeswoman Christine Bertelson.

Judge May is on vacation this week but wanted to make his intentions clear now because the process of gathering a jury pool for the trial was getting underway. He wanted that process halted to avoid wasting court time and resources and the time of prospective jurors given the trial was being delayed, Bertelson said.

Legal observers said the judge would not delay a trial this close to the opening unless both parties had agreed to the continuance. Neither would comment publicly on whether or not settlement talks were underway for the Gordon case.

Both parties have made it known that they wish to negotiate a global settlement in the Roundup litigation, though sources associated both with Bayer and plaintiffs’ counsel said potential settlement talks may focus initially on the Gordon case alone, or possibly Gordon’s claims along with additional St. Louis plaintiffs.

In a call with investors on July 30, Bayer CEO Werner Baumann said  the company was “constructively engaging in the mediation process” and would “only consider a settlement if financially reasonable and if we can achieve finality of the overall litigation.”

Baumann has come under withering criticism for his touting of the $63 billion acquisition of Monsanto. Within only two months after closing the deal, Bayer share prices plummeted when the first Roundup cancer trial resulted in a unanimous jury verdict of $289 million against the company. Total jury awards in the three trials to date have surpassed $2 billion in punitive damages alone, though judges in the three cases have lowered the punitive awards.

Investors lodged a vote of no confidence against Baumann earlier this year due to the roughly 40 percent drop in share value attributed to the Monsanto litigation.

Investors generally would welcome a global settlement of the litigation, according to investment analysts following Bayer. There has been speculation in the analyst community that a settlement could top $10 billion.

Gordon, 52, was expected to be a particularly compelling plaintiff, according to her attorney Aimee Wagstaff. Gordon, a mother of two, has suffered multiple rounds of unsuccessful cancer treatment for diffuse large B-cell lymphoma and follicular lymphoma, as the cancer has spread through her body over many years. She recently suffered a setback with a diagnosis of myelodysplastic syndrome (MDS).

Gordon developed non-Hodgkin lymphoma after using Roundup herbicides for 25 years at her residence in South Pekin, Illinois. Gordon’s stepfather, who also used Roundup at the family home, 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.

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

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Posted on by Carey Gillam

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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Posted on by Carey Gillam

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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Posted on by Carey Gillam

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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Posted on by Carey Gillam

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.

Nina Fedoroff: Mobilizing the authority of American science to back Monsanto

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Posted on by Stacy Malkan
  • As a president and board chair of AAAS from 2011-2013, Dr. Fedoroff advanced agrichemical industry policy objectives. She now works for a lobbying firm.
  • Documents obtained by U.S. Right to Know show how public relations and lobbying efforts are coordinated behind the scenes among the agrichemical industry, front groups and academics who appear independent.

Nina Fedoroff, PhD, is one of the most influential scientists advocating for the proliferation and deregulation of genetically engineered foods. She is a former president of the American Association for the Advancement of Science (2011-2012) and former chair of the AAAS Board of Directors (2012-2013). She is a senior science advisor since 2015 at OFW Law, a lobbying firm whose clients have included Syngenta and the Council for Biotechnology Information, a trade group representing Bayer (which owns Monsanto), BASF, Corteva (a division of DowDuPont) and Syngenta.

From 2007-2010, Dr. Fedoroff served as science and technology advisor to the Secretary of State and the Administrator of USAID under the George W. Bush and Obama administrations. Prior to that, she was a board member of the Sigma-Aldrich Corporation, a multinational chemical and biotech firm; and an advisory board member of Evogene, a biotechnology company that partnered with DuPont, Syngenta, Bayer and Monsanto.

A 2017 event to promote the American Council on Science and Health’s “junk science” book featured Dr. Fedoroff and two scientists affiliated with groups that deny climate science.

As Secretary of State Hillary Clinton’s “science czar,” Dr. Fedoroff served as diplomat for the “GMO all the way” thrust of U.S. foreign policy, Tom Philpott reported in Grist in 2008 and 2009. Pesticide Action Network of North America has described Dr. Fedoroff as “literally the U.S. ambassador” for genetic engineering. According to Greenpeace, Dr. Fedoroff has been “a fervent advocate for the global proliferation of GM (genetically modified) foods throughout her career.”

During her tenure as president and chairman of AAAS, the world’s largest multidisciplinary scientific society, Dr. Fedoroff leveraged those roles to provide political aid to the agrichemical industry: for example, the AAAS Board of Directors under her chairmanship issued a politically timed statement to oppose GMO labeling in 2012. While president of the scientific organization in 2011, Dr. Fedoroff helped defeat a U.S. EPA proposal that would have required additional health and safety data for GMO crops, according to emails described below. See, Nina Fedoroff, AAAS and the agrichemical industry lobby. Dr. Fedoroff and AAAS have not responded to requests for response.

Affiliations with deceptive industry front groups and PR efforts

Dr. Fedoroff has promoted and helped to legitimize groups that claim to be independent voices for science but work behind the scenes with the agrichemical industry in ways that mislead the public − including two groups that helped Monsanto try to discredit the scientists who served on the World Health Organization’s International Agency for Research on Cancer (IARC) expert panel that classified glyphosate as a probable human carcinogen in 2015.

American Council on Science and Health (ACSH) is funded by chemical, pharmaceutical and tobacco companies, according to leaked internal documents that document how the group pitches its services to corporations for product-defense campaigns. Emails released via court proceedings show that Monsanto agreed to fund ACSH in 2015, and asked the group to write about the IARC cancer report on glyphosate; ACSH later claimed the cancer report was a “scientific fraud.”     

Dr. Fedoroff helped promote this group as a legitimate science source in a 2017 National Press Club event to launch the ACSH’s “Little Black Book of Junk Science.” Appearing alongside Dr. Fedoroff at the press event were two scientists affiliated with groups that deny climate science and lobby for tobacco products:

Genetic Literacy Project: Dr. Fedoroff is listed as a board member on the website of the Genetic Literacy Project, a group that claims to be independent but partners with Monsanto on PR and lobbying projects, according to documents obtained by U.S. Right to Know. Documents released in court filings show that Monsanto listed this group among the “industry partners” it planned to engage in a strategy to “orchestrate outcry” against IARC’s glyphosate assessment in order to “protect the reputation and FTO of Roundup.” Genetic Literacy Project has since posted more than 200 articles critical of the cancer research agency, including numerous personal attacks on the scientists involved in the glyphosate report, accusing them of conspiracy, fraud, lying, corruption, secrecy, and being motivated by “profit and vanity.”

In an award-winning series in Le Monde about Monsanto’s “effort to destroy the UN cancer agency by any means possible,” journalists Stéphane Foucart and Stéphane Horel described Genetic Literacy Project and ACSH as “well-known propaganda websites” and said GLP is “fed by PR people linked to the pesticides and biotechnology industries.” GLP was launched in 2011 by Jon Entine, who owns a public relations firm that had Monsanto as a client at that time.

Attacks on cancer researchers on the Genetic Literacy Project website that lists Dr. Fedoroff as a “board member”:

Academics Review: Dr. Fedoroff promoted Academics Review as a trustworthy science source in a 2012 article in Trends in Genetics and a 2016 interview with the Washington Examiner about poor science journalism. Documents obtained by U.S. Right to Know show that Academics Review was set up as a front group with the help of Monsanto to discredit critics of genetic engineering and pesticides, while keeping corporate fingerprints hidden. The group, which claimed to be independent but was funded by agrichemical companies, attacked the organic industry as a “marketing scam.”

Biotech Literacy Boot Camp: Dr. Fedoroff was listed as a core faculty member of a Biotech Literacy Project “boot camp” held at UC Davis in 2015. The event was organized by two PR groups, Genetic Literacy Project and Academics Review, and secretly funded by agrichemical companies to “train scientists and journalists to frame the debate over GMOs and the toxicity of glyphosate,” reported Paul Thacker in The Progressive. Speakers included a familiar list of industry PR allies including Jay Byrne, Jon Entine, Bruce Chassy, David Tribe, Hank Campbell of ACSH and a keynote by the “Sci Babe.”

AgBioWorld: In her 2012 Trends and Genetics article, Dr. Fedoroff promoted the website AgBioWorld as “another invaluable resource” to learn about science. In a 2002 article in the Guardian, George Monbiot described how Monsanto’s PR team used the AgBioWorld website and fake social media accounts to discredit scientists and environmentalists who raised concerns about GM crops. Monbiot reported: 

“At the end of last year, Jay Byrne, formerly [Monsanto’s] director of internet outreach, explained to a number of other firms the tactics he had used at Monsanto. He showed how, before he got to work, the top GM sites listed by an internet search engine were all critical of the technology. Following his intervention, the top sites were all supportive ones (four of them established by Monsanto’s PR firm Bivings). He told them to ‘think of the internet as a weapon on the table. Either you pick it up or your competitor does, but somebody is going to get killed.’

While he was working for Monsanto, Byrne told the internet newsletter Wow that he ‘spends his time and effort participating’ in web discussions about biotech. He singled out the site AgBioWorld, where he ‘ensures his company gets proper play.’ AgBioWorld is the site on which [fake online personality Mary] Smetacek launched her campaign.”

Attack on Greenpeace: Dr. Fedoroff spoke at a 2016 press event for a group calling itself “Support Precision Agriculture,” which presented a letter signed by over 100 Nobel laureates criticizing Greenpeace for their opposition to GMOs. Agrichemical industry allies helped out with the campaign, including Monsanto’s former Communications Director Jay Byrne; former biotech trade group VP Val Giddings; and Matt Winkler, who funds the PR group Genetic Literacy Project and is listed as a board member along with Dr. Fedoroff on the group’s website. The .com version of the supposedly independent “Support Precision Agriculture” website redirected to the Genetic Literacy Project for years (it was delinked after we called attention to it in 2019). In emails from 2011, Byrne identified Greenpeace on a “targets” list he was developing for Monsanto with names of industry critics they could confront from behind the cover of an industry-funded academic group that appeared independent.

Friend of GMO Answers: Dr. Fedoroff is an independent expert for GMO Answers, a PR campaign developed by Ketchum public relations, which has a history of using deceptive tactics to influence the public. Although Ketchum claimed the GMO Answers campaign would “redefine transparency,” the group scripted answers for an “independent” expert and was listed among the “industry partners” in Monsanto’s PR plan to protect Roundup from cancer concerns. A “resources” section (page 4) pointed to GMO Answers and Monsanto links that communicate the company message that “Glyphosate is not carcinogenic.” In 2016, Dr. Fedoroff spoke on a panel sponsored by GMO Answers, Scientific American and the Cornell Alliance for Science about media coverage of science featuring industry-friendly journalists Keith Kloor and Tamar Haspel. See “Monsanto’s Media Machine Comes to Washington,” by Paul Thacker.

Opposed investigation to uncover industry-academic ties

In 2015, Dr. Fedoroff and two other former AAAS presidents, Peter Raven and Phillip Sharp, promoted their AAAS leadership roles, but failed to disclose any of their industry ties, in a Guardian op-ed opposing a public records investigation that sought to uncover undisclosed partnerships and financial arrangements between agrichemical companies, their PR groups and publicly funded professors. The investigation by U.S. Right to Know uncovered some of the key documents described in this fact sheet.

Although the Guardian later added a disclosure that Dr. Fedoroff works at the lobby firm OFW Law, it did not disclose that OFW Law’s client at the time was the agrichemical industry trade group, whose member companies were a focus of the public records investigation. The former AAAS presidents argued in their op-ed that the investigation to uncover undisclosed industry-academic conflicts of interest was “taking a page out of the Climategate playbook” and involved “science denialism,” the same claims made by industry PR groups described in this fact sheet.

Using the AAAS to advance agrichemical industry policy objectives

During her tenure as president of the American Association for the Advancement of Science (AAAS) from 2011-2012 and as Chair of the Board of Directors from 2012-2013, Dr. Fedoroff worked with agrichemical industry allies to advance key policy objectives: keeping genetically engineered foods unlabeled and defeating a proposal by the U.S. Environmental Protection Agency that would have required additional data on the health and environmental impacts of genetically engineered crops that are classified as pesticides.

AAAS helped persuade voters to oppose GMO labeling

In 2012, the AAAS Board of Directors under Dr. Fedoroff’s chairmanship took the unusual step of taking a position on a contentious political issue just two weeks before voters in California went to the polls to decide on Proposition 37, a ballot initiative to label GMOs. A review of the many political statements made by AAAS found no other examples of the organization attempting to influence voters ahead of a state election. (The AAAS and Dr. Fedoroff did not respond to requests for comment. Also disclosure: the USRTK co-directors worked on the pro-labeling campaign.)

The AAAS board’s statement opposing GMO labeling was controversial. It contained inaccuracies, according to longtime AAAS members, several of whom denounced the anti-labeling statement as a “paternalistic” attack on consumer rights that misled the public by omitting important scientific and regulatory context. An AAAS spokeswoman at the time, Ginger Pinholster, called the criticisms “unfair and without merit.” She told a reporter she was in the room when the board passed the statement: “We are not an advocacy group. We make our statements based on scientific evidence,” Pinholster said. “I can tell you that our statement is not the work of nor was it influenced by any outside organization.”

Some observers noted the similarities in language used by the AAAS and the industry-funded campaign to defeat Proposition 37. “Is a major science group stumping for Monsanto?” Michele Simon asked in Grist. Simon described the board’s statement as “non-scientific but very quote-worthy,” and noted that the accompanying AAAS press release contained “talking points” that matched No on 37 campaign literature.

“appearing to be less than transparent is a really bad idea for the scientific community”

In a 2013 letter to Science magazine, another group of 11 scientists raised concerns that the AAAS board’s statement on GMO foods “could backfire.” They wrote, “we are concerned that AAA’s position represents a poorly informed approach to communicating science …  appearing to be less than transparent is a really bad idea for the scientific community.”

Dr. Fedoroff was an early supporter of the industry-backed No on 37 campaign, which listed her on its website in June 2012 as one of four scientists representing the “scientific and academic community” who opposed GMO labeling. The campaign later asked Dr. Fedoroff to help recruit more academics to their cause, which she did according to an October 1, 2012 email to Meghan Callahan of BCF Public Affairs, “I’ve forwarded your [request for academic supporters] to an international group of biotechnology supporting academics. I suspect you’ll be hearing from many corners of the world,” Dr. Fedoroff wrote.

Helped kill data requirements for pesticide-producing plants

In 2011 while serving as AAAS president, Dr. Fedoroff worked with agrichemical industry allies and an industry lobbyist to stop the U.S. Environmental Protection Agency from requiring companies to provide additional health and safety data for genetically engineered foods that are classified as pesticides, according to emails described below.

The EPA proposal stemmed from a 2009 EPA Scientific Advisory Panel discussion about ways to improve the agency’s ability to make regulatory decisions about plants that are genetically engineered to produce or contain pesticides, which EPA refers to as “plant-incorporated protectants” (PIPs). Panel members were asked to evaluate current and proposed EPA data requirements for PIPs in the following areas:

  • data to assess potential similarities between PIPs and allergens, toxins, anti-nutrients and other hazardous proteins;
  • testing for synergistic effects on health and non-target organisms, when two or more GMO traits are combined (stacked trait GMOs);
  • potential impacts on microbial populations in soil ecosystems; and
  • data to better address the impacts of gene flow.

According to notes from an October 2009 EPA meeting, the proposed rules would “mostly codify existing data requirements that are currently applied on a case-by-case basis,” and would encompass five categories of data and information: product characterization, human health, non-target effects, environmental fate and resistance management. EPA announced the proposed rules in the Federal Register in March 2011.

Emails obtained by U.S. Right to Know via public records requests show how industry allies mobilized to defeat the proposal.

The emails show conversations between Bruce Chassy, a University of Illinois professor at the time, Eric Sachs of Monsanto and other industry reps discussing activities and meetings that involved Dr. Fedoroff. Chassy described himself in the emails (page 66) as the liaison between industry and academics in the effort to oppose the EPA data requirements. Interspersed in his emails to Sachs were queries about whether Monsanto had sent a check to the University of Illinois Foundation in support of Chassy’s “biotechnology outreach and education activities.” (For more details about the undisclosed funds Chassy received from Monsanto for years as he promoted biotechnology, see reporting by Monica Eng in WBEZ and emails posted by the New York Times.)

On July 5, Dr. Chassy emailed Eric Sachs of Monsanto to report that Dr. Fedoroff had sent a letter to EPA over her signature co-signed by 60 members of the National Academy of Sciences. “Nina really picked up the ball and moved it down the field,” Chassy wrote. He described the EPA proposal as a “train wreck.”

The emails show that on August 19, industry trade group representatives were surprised and pleased (page 19) to see a New York Times op-ed from Dr. Fedoroff arguing against regulations for genetic engineering; “who got Nina’s op ed placed?” Adrienne Massey of BIO asked Dr. Chassy and two other industry allies, Henry Miller and Val Giddings. Chassy responded:

Massey forwarded Dr. Chassy the letter BIO sent to the EPA “hoping to build on the academics’ letter and short-circuit any dismissive response of EPA to that letter.” Their efforts did not succeed as they hoped. On August 24, Dr. Chassy wrote to Eric Sachs (page 14) that Dr. Fedoroff “got a response from EPA that is an insult.” He described plans to ratchet up the pressure.

 

In September, Chassy organized a conference call with Fedoroff, Monsanto’s Eric Sachs, Adrienne Massey of BIO and their lobbyist Stanley Abramson, among others. According to Chassy’s notes from the call, “Finding a way to ensure that the EPA proposal never sees the light of day would be the best possible outcome we could hope for. Next best would be to make sure it is DOA, but if needs be we must be willing to continue the fight.”

He also shared the problem that, “The EPA does not believe that the academic community can mount a sustained opposition to their proposed rule making; they believe that only a small handful are behind the petition and that most of the signatories are not committed to the issue.” The group decided they needed to “build a core of leading scientists who are in fact willing to speak out and devote time to this issue.”

By October, the group was more hopeful. Chassy emailed Sachs to report on a “surprisingly productive” meeting he and Dr. Fedoroff attended with Steve Bradbury of EPA. The meeting had been set up by Massey and the lobbyist Abramson. The EPA proposal to require data for GMO PIPs never did see the light of day, according to Michael Hansen, PhD, senior scientist at Consumers Union, who participated in the public meetings with the agency.

Full email chains, via the UCSF Industry Documents Library:

Related reporting 

“I Was Barred from a Nobel Laureate Press Conference by a PR Consultant with Monsanto Ties,” by Tim Schwab, Food & Water Watch (2016)

“The Puppetmasters of Academia,” by Jonathan Latham, PhD, Independent Science News (2015)

“20 years later: the biotech brigade marches on,” Pesticide Action Network (2012)

“Engineering food for whom?” by Marcia Ishii-Eitemann, PhD, senior scientist at Pesticide Action Network North America (2011)

“Sorry, NY Times: GMOs still won’t save the world,” by Anna Lappe, Grist (2011)

“In which I go toe to toe with H. Clinton’s science czar over GMOs,” by Tom Philpott, Grist (2009)

“Genetically Modified Diplomat: U.S. Foreign Policy GMO All the Way,” by Tom Philpott, Grist (2008)

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

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Posted on by Carey Gillam

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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Posted on by Carey Gillam

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.