Roundup cancer trials still a threat to Bayer, but settlement talks progressing

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Lawyers for Monsanto owner Bayer AG and for plaintiffs suing Monsanto told a federal judge on Thursday that they were continuing to make progress in settling sweeping nationwide litigation brought by people who claim Monsanto’s Roundup caused them to develop cancer.

In a video hearing, Bayer lawyer William Hoffman told U.S. District Judge Vince Chhabria the company had reached deals – or was close to reaching deals – to resolve more than 3,000 lawsuits that are grouped together in multidistrict litigation (MDL) filed in U.S. District Court for the Northern District of California.

The company separately has already settled thousands of cases outside the MDL, cases that have been proceeding through state courts. But controversy and conflict have dogged the overall settlement offers, with allegations from some plaintiffs’ firms that Bayer reneged on agreements reached months ago, and some plaintiffs’ firms unwilling to agree to what they consider inadequate offers from Bayer.

There was no discussion of those complaints, however,  in Thursday’s hearing, with both sides expressing optimistic views.

“The company has moved forward and finalized several agreements with firms…. we’re also hopefully going to finalize additional agreements in the next several days,” Hoffman told the judge.

“Where we are right now… these figures are somewhat estimates but I think they are reasonably close: There are approximately 1,750 cases that are subject to agreements between the company and law firms and another approximately 1,850 to 1,900 cases that are in various stages of discussion right now,” Hoffman said. “We are working to put in place a program to accelerate discussions and hopefully bring agreements to fruition with those firms.”

Plaintiffs’ lawyer Brent Wisner told the judge it was important to note that there remain a “handful of cases” within the MDL that are not settled yet. But, he said – “We anticipate they will be shortly.”

Judge Chhabria said that given the progress he will continue a stay of the Roundup litigation until November 2 but that he will start moving cases to trial if they are not resolved by that point.

Bayer Bad Dealing Alleged

The cooperative tone expressed in Thursday’s hearing was a far cry from a hearing held last month when plaintiffs’ attorney Aimee Wagstaff  told Judge Chhabria that Bayer was not honoring tentative settlement agreements made in March and intended for finalization in July.

Bayer announced in June that it had reached a $10 billion settlement with U.S. law firms to resolve most of more than 100,000 Roundup cancer claims. But at that time the only major law firms leading the litigation that had final signed agreements with Bayer were The Miller Firm and Weitz & Luxenburg.

The Miller Firm’s deal alone totaled $849 million to cover the claims of more than 5,000 Roundup clients, according to settlement documents.

The  California-based Baum Hedlund Aristei &  Goldman law firm; the Andrus Wagstaff firm from Colorado; and the Moore Law Group of Kentucky had tentative deals but not final agreements.

According to a letter written by Wagstaff filed with the court, Bayer requested repeated extensions until the deal with her firm fell apart in mid-August. After reporting the issues to Judge Chhabria, the settlement talks resumed and were ultimately resolved with the three firms this month.

Some details of how the settlements will be administered were filed earlier this week in a court in Missouri. The Garretson Resolution Group, Inc., doing business as Epiq Mass Tort, will act as the
Lien Resolution Administrator,” for instance, for clients of Andrus Wagstaff whose settlement dollars will need to be used in part or in whole to repay cancer treatment expenses paid by Medicare.

Bayer bought Monsanto in 2018 just as the first Roundup cancer trial was getting underway. It has since lost all three of the 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 herbicides 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.

Bayer had threatened to file for bankruptcy if no nationwide settlement was reached, according to communications from the plaintiffs’ firms to their clients.

Thailand’s reversal on glyphosate ban came after Bayer scripted U.S. intervention, documents show

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A year ago Thailand was set to ban the widely used weed killing chemical glyphosate, a move applauded by public health advocates because of evidence the chemical causes cancer, along with other harms to people and the environment.

But under heavy pressure from U.S. officials, Thailand’s government reversed the planned ban on glyphosate last November and delayed imposing bans on two other agricultural pesticides despite the fact that the country’s National Hazardous Substances Committee said a ban was necessary to protect consumers.

A ban, particularly on glyphosate, would “severely impact” Thai imports of soybeans, wheat and other agricultural commodities, U.S. Department of Agriculture Undersecretary Ted McKinney warned Thailand Prime Minister Prayuth Chan-Ocha in pushing for the reversal. Imports could be impacted because those commodities, and many others, typically are laced with residues of glyphosate.

Now, newly revealed emails between government officials and Monsanto parent Bayer AG show that McKinney’s actions, and those taken by other U.S. government officials to convince Thailand not to ban glyphosate, were largely scripted and pushed by Bayer.

The emails were obtained through a Freedom of Information Act request by the Center for Biological Diversity, a nonprofit conservation organization. The group sued the U.S. Department of Agriculture (USDA) and the U.S. Department of Commerce on Wednesday seeking additional public records regarding the actions of the departments of trade and agriculture in pressuring Thailand on the glyphosate issue. There are several documents the government has thus far refused to release regarding communications with Bayer and other companies, the organization said.

“It’s bad enough that this administration has ignored independent science to blindly support Bayer’s self-serving assertions of glyphosate’s safety,” said Nathan Donley, a senior scientist at the Center for Biological Diversity. “But to then act as Bayer’s agent to pressure other countries to adopt that position is outrageous.”

Glyphosate is the active ingredient in Roundup herbicides and other brands developed by Monsanto, which are worth billions of dollars in annual sales. Bayer bought Monsanto in 2018 and has been struggling ever since to suppress mounting global concerns about scientific research showing that glyphosate herbicides can cause a blood cancer called non-Hodgkin lymphoma. The company is also fighting off lawsuits involving more than 100,000 plaintiffs who claim their development of non-Hodgkin lymphoma was caused by exposure to Roundup and other Monsanto glyphosate-based herbicides.

Glyphosate weed killers are the most widely used herbicides in the world, in large part because Monsanto developed genetically engineered crops that tolerate being sprayed directly with the chemical. Though useful to farmers in keeping fields free of weeds, the practice of spraying herbicide over the tops of growing crops leaves varying levels of the pesticide in both raw grain and finished foods. Monsanto and U.S. regulators maintain pesticide levels in food and livestock feed are not harmful to humans or livestock, but many scientists disagree and say even trace amounts can be dangerous.

Different countries set different legal levels for what they determine to be safe amounts of the weed killer in food and raw commodities. Those “maximum residue levels” are referred to as MRLs. The U.S. allows the highest MRLs of glyphosate in food when compared to other countries.

If Thailand banned glyphosate, the allowed level of glyphosate in food likely would be zero, Bayer warned U.S. officials.

High-level help

The emails show that in September 2019 and again in early October of 2019 James Travis, senior director for Bayer international government affairs and trade, sought assistance in reversing the glyphosate ban from multiple high-level officials from the USDA and the Office of the United States Trade Representative (USTR).

Among those Bayer sought aid from was Zhulieta Willbrand, who at that time was chief of staff of trade and foreign agricultural affairs at the U.S. Department of Agriculture.  After Thailand’s decision to reverse the ban on glyphosate, Willbrand was hired to work directly for Bayer on international trade matters.

When asked if the assistance from Willbrand while she was a government official helped her get a job at Bayer, the company said that it “ethically strives” to hire people from “all backgrounds” and any inference that she was hired for any reason other than the immense talent she brings to Bayer is false.”

In an email to Willbrand dated Sept. 18, 2019, Travis told her Bayer thought there was “real value” for U.S. government engagement on the glyphosate ban, and he noted that Bayer was organizing other groups to protest the ban as well.

“On our end, we are educating farmer groups, plantations and business partners so that they too can articulate concerns and the need for a rigorous, science based process,” Travis wrote to Willbrand. Willbrand then forwarded the email to McKinney, the USDA’s Under Secretary for Trade and Foreign Agricultural Affairs.

In an Oct. 8, 2019, email string with the subject line “Summary of Thailand Ban – Developments Moving Quickly,” Travis wrote to Marta Prado, deputy assistant U.S. Trade Representative for Southeast Asia and the Pacific, copying Willbrand and others, to update them on the situation.

Travis wrote that Thailand looked poised to ban glyphosate at a “dramatically” accelerated pace, by December 1, 2019. Along with glyphosate, the country was planning to also ban chlorpyrifos, an insecticide made popular by Dow Chemical that is known to damage babies’ brains; and paraquat, a herbicide scientists say causes the nervous system disease known as Parkinson’s.

Travis pointed out the risk a glyphosate ban would pose to sales of U.S. commodities because of the MRL issue and provided other background material the officials could use to engage with Thailand.

“In light of recent developments, we are growing more concerned that some policymakers and lawmakers are rushing the process and will not thoroughly consult all farming stakeholders nor fully consider the economic and environmental impact of banning glyphosate,” Travis wrote to the U.S. officials.

The email exchanges show that Bayer and U.S. officials discussed potential personal motivations of Thai officials and how such intelligence could be useful. “Knowing what motivates her may help with USG counter arguments,” one U.S. official wrote to Bayer about one Thai leader.

Travis suggested that U.S. officials engage much as they had with Vietnam when that country moved in April 2019 to ban glyphosate.

Shortly after the appeal from Bayer, McKinney wrote to the Thailand Prime Minister about the matter. In an Oct. 17, 2019 letter McKinney, who previously worked for Dow Agrosciences, invited Thailand officials to Washington for an in-person discussion about glyphosate safety and the Environmental Protection Agency’s determination that glyphosate “poses no meaningful risk to human health when used as authorized.”

“Should a ban be implemented it would severely impact Thailand’s imports of agricultural commodities such as soybean and wheat,” McKinney wrote. “I urge you to delay a decision on glyphosate until we can arrange an opportunity for U.S. technical experts to share the most relevant information to address Thailand’s concerns.”

A little more than a month later, on Nov. 27, Thailand reversed the planned glyphosate ban. It also said it would delay bans on paraquat and chlorpyrifos for several months.

Thailand did finalize bans of paraquat and chlorpyrifos on June 1, of this year. But glyphosate remains in use. 

When asked about its engagement with U.S. officials on the issue, Bayer issued the following statement:

Like many companies and organizations operating in highly regulated industries, we provide information and contribute to science-based policymaking and regulatory processes. Our engagements with all those in the public sector are routine, professional, and consistent with all laws and regulations.

The Thai authorities’ reversal of the ban on glyphosate is consistent with the science-based determinations by regulatory bodies around the world, including in the United StatesEuropeGermanyAustraliaKoreaCanadaNew ZealandJapan and elsewhere that have repeatedly concluded that our glyphosate-based products can be used safely as directed.

 Thai farmers have used glyphosate safely and successfully for decades to produce essential crops including cassava, corn, sugar cane, fruits, oil palm, and rubber. Glyphosate has helped farmers to improve their livelihoods and meet community expectations of safe, affordable food that is produced sustainably.”

 

Dying man asks California Supreme Court to restore jury award in Monsanto Roundup case

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The school groundskeeper who won the first-ever trial over allegations that Monsanto’s Roundup causes cancer is asking the California Supreme Court to restore $250 million in punitive damages awarded by the jury who heard his case but then slashed by an appeals court to $20.5 million.

Notably, the appeal by plaintiff Dewayne “Lee” Johnson has larger implications than his own individual case. Johnson’s lawyer are urging the court to address a legal twist that can leave people such as Johnson who are facing death in the near term with lower damage awards than others expected to live many years in suffering and pain.

“It is long past time for California courts to recognize, as other courts do, that life itself has value and that those who maliciously deprive a plaintiff of years of life should be made to fully compensate that plaintiff and be punished accordingly,” Johnson’s attorneys wrote in their request for the state supreme court review. “The jury ascribed meaningful value to Mr. Johnson’s life, and for that he is grateful. He asks this Court to respect the jury’s decision and restore that value. ”

A unanimous jury found in August 2018 that exposure to Monsanto’s glyphosate-based herbicides, known best by the brand name Roundup, caused Johnson to develop non-Hodgkin lymphoma. The jury further found that Monsanto acted to hide the risks of its products in conduct so egregious that the company should pay Johnson $250 million in punitive damages on top of $39 million in past and future compensatory damages.

Upon appeal from Monsanto, which was purchased by the German company Bayer AG in 2018, the trial judge reduced the $289 million to $78 million. Monsanto appealed seeking either a new trial or a reduced award. Johnson cross-appealed seeking reinstatement of his full damage award.

The appeals court in the case then cut the award to $20.5 million, citing the fact that Johnson was expected to live only a short time.

The appeals court reduced the damages award despite finding there was “abundant” evidence that glyphosate, together with the other ingredients in Roundup products, caused Johnson’s cancer and that “there was overwhelming evidence that Johnson has suffered, and will continue to suffer for the rest of his life, significant pain and suffering.”

The Johnson trial was covered by media outlets around the world and put a spotlight on Monsanto’s efforts to manipulate the scientific record on glyphosate and Roundup and its efforts to quiet critics and influence regulators.  Lawyers for Johnson presented jurors with internal company emails and other records showing Monsanto scientists discussing ghostwriting scientific papers to try to shore up support for the safety of the company’s products, along with communications detailing plans to discredit critics, and to quash a government evaluation of the toxicity of glyphosate, the key chemical in Monsanto’s products.

Johnson’s trial victory spurred a frenzied filing of tens of thousands of additional lawsuits. Monsanto lost three out of three trials before agreeing this June to pay more than $10 billion to settle close to 100,000 such claims.

The settlement is still in flux, however, as Bayer wrestles with how to forestall future litigation.

In an interview, Johnson said he knew the legal battle with Monsanto could continue for many more years but he was committed to trying to hold the company accountable. He has managed to keep his illness in check so far with regular chemotherapy and radiation treatments, but is not certain how long that will continue.

“I don’t think any amount would be enough to punish that company,” Johnson said.

Appeals court denies Monsanto bid for Roundup case rehearing

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A California appeals court on Tuesday rejected Monsanto’s effort to trim $4 million from the amount of money it owes a California groundskeeper who is struggling to survive cancer that a jury found was caused by the man’s exposure to Monsanto’s Roundup herbicides.

The Court of Appeal for the First Appellate District of California also rejected the company’s request for a rehearing of the matter.  The court’s decision followed its ruling last month slamming Monsanto  for its denial of the strength of the evidence that its glyphosate-based weed killers cause cancer. In that July ruling, the court said that plaintiff Dewayne “Lee” Johnson had presented “abundant” evidence that Monsanto’s weed killer caused his cancer.  “Expert after expert provided evidence both that Roundup products are capable of causing non-Hodgkin’s lymphoma…  and caused Johnson’s cancer in particular,” the appeals court stated in its July decision.

In that decision from last month, the appeals court did, however, cut the damage award owed to Johnson, ordering Monsanto to pay $20.5 million, down from $78 million ordered by the trial judge and down from $289 million ordered by the jury who decided Johnson’s case in August 2018.

In addition to the $20.5 million Monsanto owes Johnson, the company is ordered to pay $519,000 in costs.

Monsanto, which was bought by Bayer AG in 2018, had urged the court to cut the award to Johnson to $16.5 million.

Dicamba decision also stands

Tuesday’s court decision followed a decision issued Monday by the U.S. Court of Appeals for the Ninth Circuit denying a rehearing of the court’s June decision to vacate the approval of the dicamba-based weed killing product Bayer inherited from Monsanto. That June ruling also effectively banned dicamba-based herbicides made by BASF and Corteva Agriscience.

The companies had petitioned for a broader group of judges from the Ninth Circuit judges to rehear the case, arguing that the decision to revoke regulatory approvals for the products was unfair. But the court flatly rejected that rehearing request.

In its June decision, the Ninth Circuit said the Environmental Protection Agency (EPA) had violated the law when it approved the dicamba products developed by Monsanto/Bayer, BASF and Corteva.

The court ordered an immediate ban on use of each of the company’s dicamba products, finding that the EPA “substantially understated the risks” of the dicamba herbicides and “failed entirely to acknowledge other risks.”

The court decision banning the company’s dicamba products triggered an uproar in farm country because many soybean and cotton farmers planted millions of acres of genetically altered dicamba-tolerant crops developed by Monsanto with the intent of treating weeds in those fields with the dicamba herbicides made by the three companies. Similar to “Roundup Ready” glyphosate-tolerant crops, the dicamba-tolerant crops allow farmers to spray dicamba over their fields tyo kill weeds without harming their crops.

When Monsanto, BASF and DuPont/Corteva rolled out their dicamba herbicides a few years ago they  claimed the products would not volatize and drift into neighboring fields as older versions of dicamba weed killing products were known to do. But those assurances proved false amid widespread complaints of dicamba drift damage.

More than one million acres of crops not genetically engineered to tolerate dicamba were reported damaged last year in 18 states, the federal court noted in its June ruling.

New weed killer studies raise concern for reproductive health

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As Bayer AG seeks to discount concerns that Monsanto’s glyphosate-based herbicides cause cancer, several new studies are raising questions about the chemical’s potential impact on reproductive health.

An assortment of animal studies released this summer indicate that glyphosate exposures impact reproductive organs and could threaten fertility, adding fresh evidence that the weed killing agent might be an endocrine disruptor. Endocrine disrupting chemicals may mimic or interfere with the body’s hormones and are linked with developmental and reproductive problems as well as brain and immune system dysfunction.

In a paper published last month in Molecular and Cellular Endocrinology, four researchers from Argentina said that studies contradict assurances by the U.S. Environmental Protection Agency (EPA) that glyphosate is safe.

The new research comes as Bayer is attempting to settle more than 100,000 claims brought in the United States by people who allege exposure to Monsanto’s Roundup and other glyphosate-based herbicide products caused them to develop non-Hodgkin lymphoma. The plaintiffs in the nationwide litigation also claim Monsanto has long sought to hide the risks of its herbicides.

Bayer inherited the Roundup litigation when it bought Monsanto in 2018, shortly before the first of three trial victories for plaintiffs.

The studies also come as consumer groups work to better understand how to reduce their exposure to glyphosate through diet. A study published Aug. 11 found that after switching to an organic diet for just a few days, people could cut the levels of glyphosate found in their urine by more than 70 percent. Notably, the researchers found that the children in the study had much higher levels of glyphosate in their urine than did the adults. Both adults and children saw large drops in the presence of the pesticide following the diet change.

Glyphosate, the active ingredient in Roundup, is the most widely used weed killer in the world. Monsanto introduced glyphosate-tolerant crops in the 1990s to encourage farmers to spray glyphosate directly over whole fields of crops, killing weeds but not the genetically altered crops. The widespread use of glyphosate, by farmers as well as homeowners, utilities and public entities, has drawn growing concern over the years because of its pervasiveness and fears about what it could be doing to human and environmental health. The chemical is now found commonly in food and water and in human urine.

According to the Argentinian scientists, some of the reported effects of glyphosate seen in the new animal studies are due to exposure to high doses; but there is new evidence showing that even low dose exposure could also alter the development of the female reproductive tract, with consequences on fertility. When animals are exposed to glyphosate before puberty, alterations are seen in the development and differentiation of ovarian follicles and the uterus, the scientists said. Additionally, exposure to herbicides made with glyphosate during gestation could alter the development of the offspring. It all adds up to show that glyphosate and glyphosate-based herbicides are endocrine disruptors, the researchers concluded.

Agricultural scientist Don Huber, professor emeritus from Purdue University, said the new research expands on knowledge about the potential scope of damage associated with glyphosate and glyphosate-based herbicides and provides a “better grasp of understanding the seriousness of the exposure that is ubiquitous in our culture now.”

Huber has warned for years that Monsanto’s Roundup might be contributing to fertility problems in livestock.

One noteworthy study published online in July in the journal Food and Chemical Toxicology,  determined that glyphosate or glyphosate-based herbicides disrupted “critical hormonal and uterine molecular targets” in exposed pregnant rats.

A different study recently published in the journal Toxicology and Applied Pharmacology by researchers from Iowa State University looked at glyphosate exposure in mice. The researchers concluded that chronic low-level exposure to glyphosate “alters the ovarian proteome” (a set of expressed proteins in a given type of cell or organism) and “may ultimately impact ovarian function. In a related paper from the same two Iowa State researchers and one additional author, published in Reproductive Toxicology, the researchers said they did not find endocrine disrupting effects in the mice exposed to glyphosate, however.  

Researchers from the University of Georgia reported in the journal Veterinary and Animal Science that consumption by livestock of grain laced with glyphosate residues appeared to carry potential harm for the animals, according to a review of studies on the topic. Based on the literature review, glyphosate-based herbicides appear to act as “reproductive toxicants, having a wide range of effects on both the male and female reproductive systems,” the researchers said.

Alarming results were also seen in sheep. A study published in the journal Environmental Pollution looked at the impacts of glyphosate exposure on the development of the uterus in female lambs. They found changes that they said might affect the female reproductive health of sheep and show glyphosate-based herbicides acting as an endocrine disruptor.

Also published in Environmental Pollution, scientists from Finland and Spain said in a new paper that they had performed the first long-term experiment of the effects of “sub-toxic” glyphosate exposure on poultry. They experimentally exposed female and male quails to glyphosate-based herbicides from the ages of 10 days to 52 weeks.

The researchers concluded that the glyphosate herbicides could “modulate key physiological pathways, antioxidant status, testosterone, and the microbiome” but they did not detect effects on reproduction. They said the effects of glyphosate may not always be visible with “traditional, especially short-term, toxicology testing, and such testing may not fully capture the risks…”

Glyphosate and Neonicotinoids

One of the newest studies looking at glyphosate impacts on health was published this month in the International Journal of Environmental Research and Public Health.  Researchers concluded that glyphosate as well as the insecticides thiacloprid and imidacloprid, were potential endocrine disruptors.

The insecticides are part of the neonicotinoid class of chemicals and are among the most heavily used insecticides in the world.

The researchers said that they monitored the effect of glyphosate and the two neonicotinoids on two critical targets of the endocrine system: Aromatase, the enzyme responsible for estrogen biosynthesis, and estrogen receptor alpha, the main protein promoting estrogen signaling.

Their results were mixed. The researchers said with respect to glyphosate, the weed killer inhibited aromatase activity but the inhibition was “partial and weak.” Importantly the researchers said glyphosate did not induce estrogenic activity. The results were “consistent” with the screening program conducted by U.S. Environmental Protection Agency, which concluded that “there is no convincing evidence of a potential interaction with the estrogen pathway for glyphosate,” they said.

The researchers did see estrogenic activity with imidacloprid and thiacloprid, but at concentrations higher than the pesticide levels measured in human biological samples. The researchers concluded that “low doses of these pesticides should not be considered harmless,” however, because these pesticides, together with other endocrine disrupting chemicals, “might cause an overall estrogenic effect.”

The varying findings come as many countries and localities around the world evaluate whether or not to limit or ban continued use of glyphosate herbicides.

A California appeals court ruled last month that there was “abundant” evidence that glyphosate, together with the other ingredients in Roundup products, caused cancer.

U.S. study shows switch to organic diet can quickly clear pesticide from our bodies

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A new study published Tuesday found that after switching to an organic diet for just a few days, people could cut the levels of a pesticide linked to cancer found in their urine by more than 70 percent.

The researchers collected a total of 158 urine samples from four families –seven adults and nine children – and examined the samples for the presence of the weed killer glyphosate, which is the active ingredient in Roundup and other popular herbicides. The participants spent five days on a completely non-organic diet and five days on a completely organic diet.

“This study demonstrates that shifting to an organic diet is an effective way to reduce body burden of glyphosate… This research adds to a growing body of literature indicating that an organic diet may reduce exposure to a range of pesticides in children and adults,” states the study, which was published in the journal Environmental Research.

Notably, the researchers found that the children in the study had much higher levels of glyphosate in their urine than did the adults. Both adults and children saw large drops in the presence of the pesticide following the diet change. The mean urinary glyphosate levels for all subjects dropped 70.93 percent.

Despite its small size, the study is an important one because it shows people can markedly reduce their exposures to pesticides in food even without regulatory action, said Bruce Lanphear, Professor of Health Sciences at Simon Fraser University.

Lanphear noted that the study showed children appear to be more heavily exposed than adults, though the reason is unclear.  “If the food is contaminated with pesticides, they will have a higher body burden,” Lanphear said.

Roundup and other glyphosate herbicides are commonly sprayed directly over the top of growing fields of corn, soybeans, sugar beets, canola, wheat, oats and many other crops used to make food, leaving traces in finished food products consumed by people and animals.

The Food and Drug Administration has found glyphosate even in oatmeal  and honey, among other products. And consumer groups have documents glyphosate residues in an array of snacks and cereals.

But glyphosate and glyphosate-based herbicides such as Roundup have been linked to cancer and other illness and disease in several studies over the years and growing awareness of the research has led to growing fears about exposure to the pesticide through the diet.

Many groups have documented the presence of glyphosate in human urine in recent years. But there have been few studies comparing glyphosate levels in people eating a conventional diet versus a diet made up only of foods grown organically, without the use of pesticides such as glyphosate.

“The outcomes of this research validate the previous research in which organic diets could minimize the intakes of agrochemicals, such as glyphosate,” said Chensheng Lu, adjunct professor of the University of Washington School of Public Health and honorary professor, Southwest University, Chongqing China.

“In my opinion, the underlying message of this paper is to encourage producing more organic foods for people who want to protect themselves from the exposure of agrochemicals. This paper has proven again this absolute right pathway for prevention and protection,” Lu said.

The study was authored by John Fagan and Larry Bohlen, both of the Health Research Institute in Iowa, along with Sharyle Patton, director of the Commonweal Biomonitoring Resource Center in California and Kendra Klein, a staff scientist at Friends of the Earth, a consumer advocacy group.

The families participating in the study live in Oakland, California, Minneapolis, Minnesota, Baltimore, Maryland and Atlanta, Georgia.

The study is the second of a two-part research project. In the first, levels of 14 different pesticides were measured in the urine of participants.

Glyphosate is of particular concern because it is the most widely used herbicide in the world and is sprayed on so many food crops. The International Agency for Research on Cancer, part of the World Health Organization, said in 2015 that researched showed glyphosate to be a probable human carcinogen.

Tens of thousands of people have sued Monsanto claiming exposure to Roundup caused them to develop non-Hodgkin lymphoma, and many countries and localities around the world have recently limited or banned glyphosate herbicides or are considering doing so.

Bayer, which bought Monsanto in 2018, is attempting to settle more than 100,000 such claims brought in the United States. The plaintiffs in the nationwide litigation also claim Monsanto has long sought to hide the risks of its herbicides.

A California appeals court ruled last month that there was “abundant” evidence that glyphosate, together with the other ingredients in Roundup products, caused cancer.

Bayer asks appeals court to again cut Roundup damage award owed to California groundskeeper with cancer

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Bayer is asking a California appeals court to trim $4 million from the amount of money it owes a California groundskeeper struggling to survive cancer that a trial court found was caused by the man’s exposure to Monsanto’s Roundup herbicides.

In a “petition for rehearing” filed Monday with the Court of Appeal for the First Appellate District of California, lawyers for Monsanto and its German owner Bayer AG asked the court to cut from $20.5 million to $16.5 million the damages awarded to Dewayne “Lee” Johnson.

The appeals court “reached an erroneous decision based on a mistake of law,” according to the filing by Monsanto. The issue turns on how long Johnson is expected to live. Because evidence at trial found Johnson was expected to live “no more than two years,” he should not receive money for future pain and suffering allocated for any longer than two years – despite the fact that he continues to outlive predictions, the company argues.

Under the calculations requested by Monsanto, the court should cut from $4 million to $2 million the amount ordered for future non-economic damages, (pain and suffering.) That would reduce the overall compensatory damages (past and future) to $8,253,209. While still insisting it should not owe any punitive damages, if punitive damages are awarded they should be tallied at no more than a 1-to-1 ratio against the compensatory, bringing the total to $16,506,418, Monsanto argues in its filing.

Johnson was initially awarded $289 million by a jury in August 2018, making him the first plaintiff to win at the trial level over claims that exposure to Monsanto’s glyphosate-based herbicides causes non-Hodgkin lymphoma and that Monsanto hid the risks. The trial judge lowered the award to $78 million. Monsanto appealed seeking either a new trial or a reduced award. Johnson cross-appealed seeking reinstatement of his full damage award.

The appeals court ruled last month that there was “abundant” evidence that glyphosate, together with the other ingredients in Roundup products, caused Johnson’s cancer. And the court found that “there was overwhelming evidence that Johnson has suffered, and will continue to suffer for the rest of his life, significant pain and suffering.”

But the court said damages should be reduced to a total of $20.5 million because of the issue of Johnson’s short life expectancy.

Along with its demand for a further reduction in damages, Monsanto is asking the appeals court to grant a rehearing to “correct its analysis” and “either reverse the judgment with directions to enter judgment
for Monsanto or, at the very least, vacate the award of punitive damages.”

The Johnson trial was covered by media outlets around the world and put a spotlight on Monsanto’s efforts to manipulate the scientific record on glyphosate and Roundup and its efforts to quiet critics and influence regulators.  Lawyers for Johnson presented jurors with internal company emails and other records showing Monsanto scientists discussing ghostwriting scientific papers to try to shore up support for the safety of the company’s products, along with communications detailing plans to discredit critics, and to quash a government evaluation of the toxicity of glyphosate, the key chemical in Monsanto’s products.

Tens of thousands of plaintiffs have filed lawsuits against Monsanto making claims similar to Johnson’s, and two additional trials have taken place since the Johnson trial. Both those trials also resulted in large verdicts against Monsanto. Both are also under appeal.

Bayer’s actions to trim damage awards for Monsanto’s trial losses comes as the company seeks to settle close to 100,000 Roundup cancer claims pending around the United States in various courts. Some plaintiffs are unhappy with the settlement terms, and are threatening not to agree to the deal.

Action in Pilliod Appeal 

In separate appellate action related to the Roundup litigation, last week lawyers for Alva and Alberta Pilliod filed a brief asking the California appeals court to order damages awards for the married couple totaling $575 million. The elderly couple – both stricken with debilitating cancer they blame on exposure to Roundup – won more than $2 billion at trial, but the trial judge then lowered the jury award to $87 million.

The slashing of the damage award was excessive, according to lawyers representing the couple, and does not sufficiently punish Monsanto for its wrongdoing.

“The three California juries, four trial judges, and three appellate justices who have reviewed Monsanto’s misconduct have unanimously agreed there is “substantial evidence that Monsanto acted with a willful and conscious disregard of others’ safety,” the Pilliod brief states.  “Monsanto’s claim that it is the victim of “injustice” in this case rings increasingly hollow in light of these unanimous and repeated findings.”

The lawyers are asking the court to award a 10-to-1 ratio of punitive damages to compensatory damages.

“The true victims of injustice in this case are the Pilliods, who have both suffered from a devastating and debilitating disease because of Monsanto’s malfeasance,” the brief states. “The jury, in determining that decent citizens need not tolerate Monsanto’s reprehensible behavior, rightly concluded that only a substantial punitive damage could punish and deter Monsanto.”

Some U.S. Roundup plaintiffs balk at signing Bayer settlement deals; $160,000 average payout eyed

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Plaintiffs in the U.S. Roundup litigation are starting to learn the details of what Bayer AG’s $10 billion settlement of cancer claims actually means for them individually, and some are not liking what they see.

Bayer said in late June it had negotiated settlements with several major plaintiffs’ law firms in a deal that would effectively close out the bulk of more than 100,000 pending claims against Monsanto, which was purchased by Bayer in 2018. Plaintiffs in the litigation allege they developed non-Hodgkin lymphoma from exposure to Monsanto’s Roundup and other herbicides made with a chemical called glyphosate, and that Monsanto covered up the risks.

While the deal initially seemed like good news for the plaintiffs – some who’ve struggled for years with cancer treatments and others who sued on behalf of deceased spouses – many are finding they could end up with little to no money, depending upon a range of factors. The law firms, however, could pocket hundreds of millions of dollars.

“It’s a win for the law firms and a slap in the face of the harmed” said one plaintiff, who did not want to be named.

Plaintiffs are being told they must decide in the next few weeks if they’re going to accept the settlements, even though they won’t know how much they will personally be paid until much later. All the settlement deals order the plaintiffs not to talk publicly about the details, threatening them with sanctions if they discuss the settlements with anyone other than “immediate family members” or a financial advisor.

This has angered some who say they are considering rejecting the settlements in favor of seeking out other law firms to handle their claims. This reporter has reviewed documents sent to multiple plaintiffs.

For those who do agree, payments could be made as early as February, though the process of paying all the plaintiffs is expected to stretch out a year or more. Communications sent out from law firms to their Roundup clients sketch out both the process each cancer-stricken individual will need to go through to obtain a financial payout and what those payouts might amount to. The terms of the deals vary from law firm to law firm, meaning similarly situated plaintiffs may end up with vastly different individual settlements.

One of the stronger deals appears to be one negotiated by The Miller Firm, and even that is disappointing to some of the firm’s clients. In communications to clients, the firm said it was able to negotiate roughly $849 million from Bayer to cover the claims of more than 5,000 Roundup clients. The firm estimates the average gross settlement value for each plaintiff at roughly $160,000. That gross amount will further be reduced by the deduction of attorneys’ fees and costs.

Though attorneys’ fees can vary by firm and plaintiff, many in the Roundup litigation are charging 30-40 percent in contingency fees.

To be eligible for the settlement, plaintiffs must have medical records supporting diagnosis of certain types of non-Hodgkin lymphoma and be able to show they were exposed at least a year before their diagnosis.

The Miller Firm has been at the forefront of the Roundup litigation since the outset, unearthing many of the damning internal Monsanto documents that helped win all three Roundup trials held to date. The Miller Firm handled two of those trials, bringing in lawyers from the Los Angeles firm of Baum Hedlund Aristei & Goldman to help with the case of  Dewayne “Lee” Johnson after Miller Firm founder Mike Miller was severely injured in an accident just prior to trial. The two firms additionally worked together in winning the case of husband-and-wife plaintiffs, Alva and Alberta Pilliod.  Johnson was awarded $289 million and the Pilliods were awarded more than $2 billion though the trial judges in each case lowered the awards.

Earlier this month, a California appeals court rejected Monsanto’s effort to overturn the Johnson verdict, ruling that there was “abundant” evidence that Roundup products caused Johnson’s cancer but reducing Johnson’s award to $20.5 million. Appeals are still pending in the other two verdicts against Monsanto.

Scoring Plaintiffs

To determine how much each plaintiff receives from the settlement with Bayer, a third-party administrator will score each individual using factors that include the type of non-Hodgkin lymphoma each plaintiff  developed; the plaintiff’s age at diagnosis; the severity of the person’s cancer and the extent of treatment they endured; other risk factors; and the amount of exposure they had to Monsanto herbicides.

One element of the settlement that caught many plaintiffs off guard was learning that those who ultimately receive money from Bayer will have to use their funds to pay back part of the costs of their cancer treatments that were covered by Medicare or private insurance. With some cancer treatments running into the hundreds of thousands and even millions of dollars, that could quickly erase a plaintiff’s payout. The law firms are lining up third-party contractors who will negotiate with the insurance providers to seek discounted reimbursements, the plaintiffs have been told. Typically in this sort of mass tort litigation, those medical liens can be substantially reduced, the law firms said.

In one aspect of the deal welcomed by plaintiffs, the settlements will be structured to avoid tax liability, according to the information provided to plaintiffs.

Risks in Not Settling  

The law firms must get a majority of their plaintiffs to agree to the terms of the settlements in order for them to proceed. According to the information provided to plaintiffs, settlements are desired now because of a number of risks associated with continuing to pursue additional trials. Among the risks identified:

  • Bayer has threatened to file for bankruptcy, and if the company did take that route, settling Roundup claims would take far longer and likely ultimately result in far less money for plaintiffs.
  • The Environmental Protection Agency (EPA) issued a letter last August telling Monsanto that the agency won’t allow for a cancer warning on Roundup. That helps Monsanto’s future chances of prevailing in court.
  • Covid-related court delays mean additional Roundup trials are unlikely for a year or more.

It is not unusual for plaintiffs in mass tort litigation to walk away disappointed even with seemingly large settlements negotiated for their cases.  The 2019 book “Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation” by Elizabeth Chamblee Burch, the Fuller E. Callaway Chair of Law at the University of Georgia,  makes the case that a lack of checks and balances in mass tort litigation benefits nearly everyone involved except the plaintiffs.

Burch cites as an example litigation over the acid-reflux medicine Propulsid, and said she found that of the 6,012 plaintiffs who entered into the settlement program, only 37 ultimately received any money. The rest received no payouts but had already agreed to dismiss their lawsuits as a condition of entering into the settlement program. Those 37 plaintiffs collectively received little more than $6.5 million (roughly $175,000 each on average), while the lead law firms for the plaintiffs received $27 million, according to Burch,

Setting aside what individual plaintiffs may or may not walk away with,  some legal observers close to the Roundup litigation said a greater good has been achieved with the exposure of corporate wrongdoing by Monsanto.

Among the evidence that has emerged through the litigation are internal Monsanto documents showing the company engineered the publishing of scientific papers that falsely appeared to be created solely by independent scientists; the funding of, and collaborating with, front groups that were used to try to discredit scientists reporting harm with Monsanto’s herbicides; and collaborations with certain officials inside the Environmental Protection Agency (EPA) to protect and promote Monsanto’s position that its products were not cancer-causing.

Several countries around the world, as well as local governments and school districts, have moved to ban glyphosate herbicides, and/or other pesticides because of the revelations of the Roundup litigation.

(Story first appeared in Environmental Health News.)

Bayer backs away from plan to contain future Roundup cancer claims

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Monsanto owner Bayer AG is backing away from a plan to contain future Roundup cancer claims after a federal judge made it clear he would not approve the scheme, which would delay new trials and limit jury decision-making.

The plan concocted by Bayer and a small group of lawyers was filed last month in U.S. District Court for the Northern District of California as part of a effort by Bayer to put an end to sweeping litigation that has so far led to three losses in three jury trials, staggering punitive damage awards and shareholder discontent. More than 100,000 people in the United States claim exposure to Monsanto’s glyphosate-based Roundup herbicides caused them to develop non-Hodgkin lymphoma (NHL) and that Monsanto long knew about and covered up the cancer risks.

On Monday Judge Vince Chhabria issued an order setting a hearing on the matter for July 24 and making it clear he would not approve the settlement plan. He was “skeptical of the propriety and fairness of the proposed settlement,” Chhabria wrote in the order.

Prior to the judge’s order, multiple parties filed notices of their own opposition to the Bayer plan; citing “major deviations from ordinary practices” called for in the proposed settlement.

In response, on Wednesday the group of lawyers who had structured the deal with Bayer filed a notice of withdrawal of their plan.

The proposed settlement plan for future class action litigation was separate from the settlement agreement Bayer made with lawyers for plaintiffs who have already filed cases and is designed to help Bayer contain and manage future liability.  Under the structure put together by Bayer and a small group of plaintiffs’ lawyers the class action settlement would have applied to anyone exposed to Roundup who had not filed a lawsuit or retained a lawyer as of June 24, 2020, regardless of whether or not that person already had been diagnosed with cancer they believe was due to Roundup exposure.

The plan would have delayed the filing of new cases for four years, and called for the establishment of a five-member “science panel” that would take any future findings on cancer claims out of the hands of  juries. Instead, a “Class Science Panel” would be established to determine whether Roundup can cause non-Hodgkin lymphoma, and if so, at what minimum exposure levels.  Bayer would get to appoint two of the five panel members. If the panel determined there was no causal connection between Roundup and non-Hodgkin lymphoma then the class members would be barred from future such claims.

Judge Chhabria took issue with the whole idea of a science panel. In his order, the judge wrote:

“In an area where the science may be evolving, how could it be appropriate to lock in a decision from a panel of scientists for all future cases? For examine, imagine the panel decides in 2023 that Roundup is not capable of causing cancer. Then imagine that a new, reliable study is published in 2028 which strongly undermines the panel’s conclusion. If a Roundup user is diagnosed with NHL in 2030, is it appropriate to tell them that they’re bound by the 2023 decision of the panel because they did not opt out of a settlement in 2020?”

Bayer said it would set aside $1.25 billion for the arrangement. The money would be used to compensate class members diagnosed with NHL for the “effects of the delay” in litigation, and to fund research into the diagnosis and treatment of NHL, among other things.

The plaintiffs’  attorneys who put the plan together with Bayer stood to make more than $150 million in fees payable by Bayer. They are not the same law firms that have led the litigation to date. This group of law firms include Lieff Cabraser Heimann & Bernstein; Audet & Partners; The Dugan Law Firm; and lawyer Samuel Issacharoff, Reiss Professor of Constitutional Law at New York University School of Law.

Several members of the lead law firms who won the three Roundup cancer trials oppose the proposed class action settlement plan, saying it would deprive future plaintiffs of their rights while enriching those other lawyers who have not previously been at the forefront of the Roundup litigation.

It is not clear how the withdrawal of this proposed class action settlement plan might impact the larger settlement of existing claims. Bayer said last month it will pay up to $9.6 billion to resolve roughly 75 percent of the current claims and will continue working to settle the rest. That settlement does not require court approval.

Bayer issued a statement Wednesday saying it remains “strongly committed to a resolution that simultaneously addresses both the current litigation on reasonable terms and a viable solution to manage and resolve potential future litigation.”

U.S. regulators relied for years on flawed pesticide data provided by Dow Chemical

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For years, U.S. regulators relied on falsified data provided by Dow Chemical to allow unsafe levels of the chemical chlorpyrifos into American homes, according to a new analysis from University of Washington researchers.

The analysis reexamines work from the 1970s sponsored by Dow and submitted to the Environmental Protection Agency (EPA) to guide the agency in establishing what scientists refer to as a “no-observed-adverse-effect-level” or NOAEL. Such thresholds are used to determine what types of use and at what level a chemical exposure can be allowed and still be considered “safe.”

According to the new analysis, published online July 3 in the journal Environmental International, the inaccurate findings were the result of a chlorpyrifos dosing study conducted by researcher Frederick Coulston and colleagues from the Albany Medical College in the early 1970s for Dow.

The authors of the new paper reexamining that prior work are Lianne Sheppard, Seth McGrew and Richard Fenske of the Department of Environmental and Occupational Health Sciences, School of Public Health at the University of Washington.

While the study was authored by the Coulston group, the analysis was completed by a Dow statistician and concluded that 0.03 mg/kg-day was the chronic NOAEL level for chlorpyrifos in humans. But the new analysis by the University of Washington researchers found that wildly overstated the margin of safety. Had the data been properly analyzed a lower NOAEL of 0.014 mg/kg-day would have been found, they said.

The Coulston study did not undergo peer review but still was used by the EPA for risk assessments throughout much of the 1980′s and 1990′s, the University of Washington researchers reported.

The researchers concluded: “During that period, EPA allowed chlorpyrifos to be registered for multiple residential uses that were later cancelled to reduce potential health impacts to children and infants. Had appropriate analyses been employed in the evaluation of this study, it is likely that many of those registered uses of chlorpyrifos would not have been authorized by EPA. This work demonstrates that reliance by pesticide regulators on research results that have not been properly peer-reviewed may needlessly endanger the public.”

Widely used

Commonly known as the active ingredient in the brand name Lorsban, chlorpyrifos insecticides were introduced by Dow Chemical in 1965 and have been used widely in agricultural settings. The largest agricultural market for chlorpyrifos is corn but the pesticide is also used by farmers growing soybeans, fruit and nut trees, Brussels sprouts, cranberries, and cauliflower, as well as other row crops. Residues of the chemical are commonly found in food. Non-agricultural uses include golf courses, turf, green houses, and utilities.

Despite the science promoted by Dow, independent scientific research has shown mounting evidence of the dangers of chlorpyrifos, particularly to young children. Scientists have found that prenatal exposures to chlorpyrifos are associated with lower birth weight, reduced IQ, the loss of working memory, attention disorders, and delayed motor development.

The American Academy for Pediatrics, which represents more than 66,000 pediatricians and pediatric surgeons, has warned that continued use of the chemical puts developing fetuses, infants, children and pregnant women at great risk.

Chlorpyrifos is so dangerous that the European Food Safety Authority has stated that there is no safe exposure level.

The EPA reached an agreement with Dow in 2000 to phase out all residential uses of the chemical because of research showing the chemical is dangerous to the developing brains of babies and young children. In 2012, chlorpyrifos was banned from use around schools.

In February 2020, after pressure from consumer, medical, scientific groups and in face of growing calls for bans around the world, Corteva AgriScience, a successor corporation to a merger of Dow and DuPont, said it would phase out production of chlorpyrifos. The chemical, however, remains legal for other companies to make and sell.

Human subjects

The study that is the subject of the new paper by the University of Washington researchers was overseen in 1971 by the Albany Medical College’s Institute of Experimental Pathology and Toxicology. The study included 16 healthy adult male inmates from a pool of volunteers at Clinton Correctional Facility, a maximum-security prison in Dannemora, New York.

The volunteers were randomized into four experimental groups, including one control group, whose members received a daily placebo. The members of the three other groups received daily chlorpyrifos treatments at three different doses.  The study took place over 63 days.

The new analysis found several problems with the study, including the omission of eight valid baseline measurements for one of the three treatment groups.

“Such an omission of valid data without justification is a form of data falsification that violates all standard codes of ethical research practice and is classified as outright research misconduct,” the University of Washington researchers concluded.

The researchers said that chlorpyrifos “passed through the regulatory process without much debate,” even though there was “growing evidence that it might pose a health hazard in residential environments.”

“The Coulston Study misled regulators by omitting valid data,” and “may have adversely impacted public health” for several years, the University of Washington paper concludes.