Bayer AG suffered yet another setback this week in the company’s ongoing effort to undo at least one of the trial losses dealt to Monsanto Co. in U.S. litigation alleging that the company’s Roundup herbicide causes cancer and Monsanto spent decades covering up the risks.
Bayer, which bought Monsanto in 2018 just as the first Roundup trial was getting underway, petitioned the California Supreme Court in September seeking a review of the case of Pilliod v. Monsanto. The court rejected that petition for review on Wednesday.
Husband and wife Alva and Alberta Pilliod were awarded over $2 billion in 2019 after a trial in which their lawyers presented evidence that the non-Hodgkin lymphoma (NHL) suffered by both was caused by their long-term exposure to Roundup herbicide. Alberta was diagnosed with non-Hodgkin lymphoma brain cancer in 2015, while her husband Alva was diagnosed in 2011 with non-Hodgkin lymphoma that spread from his bones to his pelvis and spine. The couple had started using Roundup in the 1970s and used it for more than 30 years.
The trial judge then lowered the jury award to $87 million.
Alberta Pilliod told US Right to Know that she and her husband were very happy to hear of the court’s rejection of Bayer’s petition, and hope to soon see their judgment paid.
“We’ve jumped through all the hoops. We’d like to get to the final score,” she said.
Alva Pilliod, 79, remains in remission, and though 77-year-old Alberta is also currently in remission she has had multiple recurrences of her cancer and has to be hospitalized frequently for health problems, she said.
The California Supreme Court’s refusal to review the Pilliod case comes three months after the 1st Appellate District in the Court of Appeal for California rejected Monsanto’s bid to overturn the trial loss.
The appeals court ruling had scathing words for Monsanto: “We find that substantial evidence supports the jury’s verdicts,” the court stated. “Monsanto’s conduct evidenced reckless disregard of the health and safety of the multitude of unsuspecting consumers it kept in the dark. This was not an isolated incident; Monsanto’s conduct involved repeated actions over a period of many years motivated by the desire for sales and profit.”
The court also said there was substantial evidence that Monsanto acted with a “willful and conscious disregard for the safety of others,” supporting the awarding of punitive damages.
The evidence showed that Monsanto “failed to conduct adequate studies on glyphosate and Roundup, thus impeding discouraging, or distorting scientific inquiry concerning glyphosate and Roundup,” the court said.
The court specifically rejected the argument that federal law preempts such claims, an argument Bayer has told investors offers a potential path out of the litigation. Bayer has said it hopes it can get the U.S. Supreme Court to agree with its preemption argument.
Evidence laid out in the Pilliod trial and two previous trials included numerous scientific studies that showed what plaintiffs’ attorneys said was proof Monsanto’s herbicides cause NHL. As well, the attorneys presented jurors with many internal Monsanto communications obtained through court-ordered discovery that show Monsanto has intentionally manipulated the public record to hide the cancer risks.
Bayer has settled several other cases that were scheduled to go to trial over the last two years. And in 2020, the company said it would pay roughly $11 billion to settle about 100,000 existing Roundup cancer claims. This year, Bayer said it would set aside another $4.5 billion toward Roundup litigation liability.
Bayer also announced it would stop selling Roundup, and other herbicides made with the active ingredient glyphosate, to U.S. consumers by 2023. But the company continues to sell the products for use by farmers and commercial applicators.
Stephens trial drags on
Even as Bayer attempts to settle cases, it also is proceeding to trial with several. One trial that has turned into a sluggish, on-again-off-again, Zoom-based trial is the case of Donnetta Stephens v. Monsanto.
The case, in the Superior Court of San Bernardino County in California, has been held via Zoom due to concerns about the spread of Covid-19, but has been marred by numerous technical problems as well as scheduling conflicts.
The jury trial has generally only been in session 2-3 days per week after getting underway in July. The next session is set for Monday, which will be the 51st day of trial.
Stephens suffers from non-Hodgkin lymphoma she blames on her use of Roundup. Her trial is a “preference” case, meaning her case was expedited after her lawyers informed the court that Stephens was “in a perpetual state of pain” and losing cognition and memory due.