herbicide

Bayer wins Roundup trial; plaintiff fails to prove exposure caused child’s disease

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Posted on by Carey Gillam

The former Monsanto Co., now owned by Bayer AG, notched its first win in the mass tort U.S. Roundup litigation on Tuesday, defeating at trial a mother who alleged her use of Roundup exposed her child to the pesticide and caused him to develop cancer.

Ezra Clark was born in May 2011 and diagnosed in 2016 with Burkitt’s lymphoma, a form of non-Hodgkin lymphoma (NHL) that has a high tendency to spread to the central nervous system, and can also involve the liver, spleen and bone marrow, according to the court filings. Ezra’s mother, Destiny Clark, is the plaintiff in the case, which was heard in Los Angeles County Superior Court. A different Roundup trial is underway in San Bernardino County Superior Court.

Ezra Clark was “directly exposed” to Roundup many times as he accompanied his mother while she sprayed Roundup to kill weeds around the property where the family lived, according to court documents. Ezra has autism and his mother said it calmed him to play outdoors while she worked in the yard, which meant he often played in areas freshly sprayed with Roundup, according to the court filings.

Fletch Trammell, lead attorney for Clark, said his case was subject to a bifurcation order that organized the case into two phases. In the first phase he was limited to presenting evidence that focused on the child’s personal exposure to Roundup and whether or not it could have been enough to have contributed to his disease. The case would have proceeded to a second phase had the plaintiff won the first phase, but the loss in the first phases ends the trial.

“This was nothing like any of the other three trials,” Trammell said.

The jury was asked to address one key question in the first phase: Whether or not the child’s exposure to  Roundup was a “substantial factor” in his development of Burkitt’s lymphoma.

In a 9 to 3 decision, the jury found that it was not.

Trammell said the jury decision was because the jury doubted the child’s exposure to Roundup could have been enough to cause cancer. The decision did not address the larger question of the alleged carcinogenicity of Roundup overall, he said.

But Bayer, which bought Monsanto in 2018 as the first Roundup trial was getting underway, said the jury’s decision was in line with scientific research showing glyphosate, the main ingredient in Roundup, is safe and does not cause cancer.

“The jury carefully considered the science applicable to this case and determined that Roundup was not the cause of his illness,” the company said in a statement.

80 hours

During the trial, Trammel presented evidence indicating Ezra was exposed to Roundup for about 80 cumulative hours over the years his mother sprayed with him at her side. He paired that with research showing there could ben an increased risk of NHL associated with repeated spraying of glyphosate herbicides, such as Roundup. And he noted language on Roundup labels in Canada that advise users to wear protective gloves and avoid getting the chemical on bare skin.

“The studies… they show that Roundup does three different things when it gets to your
lymphocyte cells…   It can kill cells, which is bad enough; but it also causes the exact DNA damage
that results in Burkitt’s lymphoma; it also, in a variety of ways, devastates your body’s ability to
repair DNA damage,” Trammell told jurors in his closing argument.

Trammell also sought to counter problems with deposition testimony given by Destiny Clark. Trammell said the mother also has suffered from cancer, a cervical cancer that metastasized to her brain. The illness and treatments she has undergone made it difficult for her to recall details and she “made a lot of mistakes” in the deposition she gave to Monsanto’s attorneys, Trammell told jurors. But she was very clear, he told jurors, on recalling her use of Roundup nearly “every weekend” when Ezra was young.

Monsanto attorney  Brian Stekloff told jurors that Ezra’s exposure was in doubt. He told jurors that while they might have sympathy for the family, they could not ignore inconsistencies in Destiny Clark’s testimony about how often her son was exposed, and could not ignore statements by other family members that they did not see her spraying around Ezra.

“And there is an old adage or old saying, and it goes like this: The truth is simple because there’s nothing to remember,” Stekloff told jurors. “When you tell the truth, you don’t mix up the facts. It’s when it didn’t happen that you can’t remember what you said the first time and the next time, and the next time, and the next time. And the inconsistencies start piling up and piling up, and the explanations start coming and piling up and piling up. And that’s what you have seen here in this trial.”

Stekloff told jurors the evidence did not support a finding that exposure to Roundup was a substantial factor in causing his cancer.

“This is not a popularity contest. This is not a referendum on Monsanto. It’s not even a referendum on Roundup,” he said in his closing argument. “Roundup did not cause Ezra Clark’s Burkitt’s lymphoma.”

Clark is one of tens of thousands of plaintiffs who filed U.S. lawsuits against Monsanto after the World Health Organization’s cancer experts in 2015 classified glyphosate – the active ingredient in Monsanto’s herbicides – as a probable human carcinogen with an association to NHL.

Monsanto lost each of the three previous trials, after lawyers for the plaintiffs presented jurors with multiple scientific studies finding potential health risks with glyphosate and Roundup  The plaintiffs lawyers also used internal Monsanto documents as evidence, arguing the so-called “Monsanto Papers” showed intentional efforts by the company to manipulate regulators and control scientific research.

The jury in the last trial ordered $2 billion in damages though the award was later shaved to $87 million.

Bayer has maintained that there is no cancer risk with the glyphosate herbicides it inherited from Monsanto, but it has agreed to pay close to $14 billion to try to settle the litigation and said it will remove glyphosate products from the U.S. consumer market by 2023. The company will continue to sell the herbicides to farmers and other commercial users.

Mike Miller, who heads the Virginia law firm that won two of the three previously held Roundup trials, i but who was not involved in the Clark case, said the verdict does not change anything about the litigation, nor Bayer’s liability.

“Nothing about that verdict change the fact: Roundup causes cancer,” he said.

See transcript of closing arguments in Clark v. Monsanto. 

Litigation against Syngenta grows; lawyers fight over evidence and trial dates

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Posted on by Carey Gillam

Syngenta AG is facing a growing number of U.S. lawsuits over allegations that its paraquat herbicide causes Parkinson’s disease, with a Fresno, California man pushing for an expedited trial that potentially would start within the next few months, and multiple plaintiffs’ lawyers jockeying for power and influence over future trial proceedings.

Plaintiff George Isaak used paraquat to treat weeds on orchard and vineyard property from 1964 through 2004, mixing, loading and spraying the pesticide routinely before he was diagnosed with Parkinson’s in May of 2020, according to his lawsuit.

Isaak used a 200-gallon “spraying rig” on the 60-acre farm where he raised peaches, nectarines, almonds, pistachios, and grapes before retiring in 2005. Isaak, 84, now has such severe Parkinson’s symptoms that he has suffered several falls, finds it hard to speak, and is confined to a wheelchair, according to his lawyers.

Isaak attorney Mike Miller said his client has been left with “horrible” injuries from Parkinson’s.

Isaak should now be given a trial date no later than January due to his decline in cognition and overall debilitation to his health, according to a court filing by The Miller Firm and co-counsel.

Isaak “had no reason to suspect that chronic, low-dose exposure to Paraquat could cause neurological diseases such as Parkinson’s disease,” the lawsuit states. But evidence will show, the lawsuit contends, that the paraquat use was a “substantial factor in causing Plaintiff George Isaak to suffer severe and permanent physical injuries, pain, mental anguish, and disability, and will continue to do so for the remainder of Plaintiff George Isaak’s life.”

Carol Isaak, George Isaak’s wife, is also a plaintiff in the lawsuit and is seeking a claim for loss of consortium.

There are hundreds of cases pending in state and federal courts around the country, according to a June 22 court filing. The plaintiffs in those cases all allege Syngenta was aware of the risks but failed to warn users.

Syngenta, which is owned by a Chinese chemical company, has denied the allegations, and is seeking to dismiss, or limit the lawsuits. The company filed a “partial motion to dismiss” in federal court on Sept. 13, citing various state law provisions in asking the court to dismiss claims “for breach of warranty, fraud, and violation of certain consumer protection statutes.”

Along with Syngenta, the defendants include Chevron Phillips Chemical Cmpany LP, and Chevron USA, Inc. All have denied any liability.

Infighting among plaintiffs’ lawyers

Syngenta said in a Sept. 17 court filing that it opposes the granting of an expedited trial, known as a “preference” trial, for Isaak.

“Mr. Isaak has presented no evidence regarding his alleged paraquat exposures, and his medical records and doctor’s declaration cast doubt on whether he actually has Parkinson’s disease,” the company said in its filing.

Syngenta noted that there are many other plaintiffs expected to request preference trials.

In addition to the objection from Syngenta, Isaak’s lawyers effort to obtain court approval for a preference trial has come into conflict with an effort by other attorneys representing other plaintiffs in the paraquat litigation.

Plaintiffs law firm Walkup, Melodia, Kelly & Schoenberger is seeking to create a special committee made up of plaintiffs’ lawyers that would evaluate and screen cases seeking preference trials. Typically such requests for expedited trials go directly to a judge.

The firm said a committee was needed because many of the plaintiffs in the overall paraquat litigation would “likely qualify” for preference. They are proposing a protocol implemented by a five-member committee of plaintiffs’ lawyers.

“The majority of the plaintiffs, including both filed and unfiled cases known to plaintiffs’ counsel, are over the age of 65. The reality of these cases is that there are many plaintiffs, as well as many potential plaintiffs, whose disease progression is unstable and who have a real and substantial danger of losing their ability to testify, or losing their ability to meaningfully utilize their compensation, if their trials are not prioritized,” the firm stated in a court filing.

The firm added in a separate filing: “An uncontrolled race to file competing preference motions risks sending a plaintiff to trial who does not represent the plaintiff population. And should the initial trials be ultimately unsuccessful, it jeopardizes the rights of all remaining plaintiffs in the proceeding.”

Isaak’s lawyers oppose the formation of such a committee and filed a memorandum explaining that opposition on Sept. 17, arguing that the use of a preference committee is “unconstitutional on its face.”

Whether or not a plaintiff meets the criteria deserving of a preference trial should not be left up to the arbitrary nature of a committee of other plaintiffs’ attorneys, they said.

The attorneys registering opposition to the preference committee additionally allege that the Walkup firm has a conflict of interest because it has already reached a “large, lucrative” settlement agreement with Syngenta for some of its clients, and until that deal is finalized, Syngenta and the other defendants still could walk away from the deal.

Thus, the Walkup firm is “a conflicted law firm,” the attorneys allege. In addition to The Miller Firm, the law firms registering opposition are the Wagstaff Law Firm and Brady Law Group.

A hearing on the matter is set for Sept. 30.

Battle over discovery documents

The lawyers for plaintiffs have also been fighting over access to internal Syngenta corporate documents and other evidence obtained as part of court-ordered “discovery.”

Over the last few years, Syngenta and the other defendants turned over millions of documents to Missouri lawyer Steve Tillery in his representation of a paraquat lawsuit titled Hoffman V. Syngenta, that was pending in St. Clair County, Illinois. The Hoffman case had been set to go to trial earlier this year but Tillery and the defendants agreed to a settlement and no trial was held.

The lawyers for the plaintiffs pursuing trials want to make use of the materials already turned over in the Hoffman case, including internal corporate documents as well as depositions and expert reports. Tillery and Syngenta objected to sharing some of the materials but were ordered to do so by the federal judge overseeing consolidated paraquat proceedings in the Northern District of California.

Scientific studies

Several scientific studies have linked paraquat to Parkinson’s, including a large study of U.S. farmers jointly overseen by multiple U.S. government agencies.  Farmers use paraquat in the production of many crops, including corn, soy and cotton. The Agricultural Health Study (AHS) said it found that “exposure to agricultural pesticides may increase a person’s risk of developing Parkinson’s disease.” In 2011, AHS researchers reported that “participants who used paraquat or rotenone were twice as likely to develop Parkinson’s disease as people who didn’t use these chemicals.”

Syngenta argues that newer and more robust research, including by AHS scientists, has discounted a tie between paraquat and Parkinson’s.

A recent paper from AHS researchers stated that “Extensive literature suggests an association between general pesticide use and Parkinson’s disease (PD). However, with few exceptions, little is known about associations between specific pesticides and PD.”

Because the paraquat litigation is expected to continue to grow, the U.S. Judicial Panel on Multidistrict Litigation (MDL) in Washington, D.C. approved the consolidation of pretrial proceedings in the Northern District of California, the same federal court that is overseeing the U.S. Roundup MDL.

Similarly, several other cases are consolidated in Judicial Council Coordination Proceedings in Contra Costa County Superior Court in California.

Covid delays one Roundup cancer trial while another looms

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Posted on by Carey Gillam

The California trial pitting an elderly cancer victim against Monsanto owner Bayer AG has been delayed due to concerns about the spread of Covid-19, with proceedings now expected to resume next week in a virtual format via Zoom.

Lawyers for plaintiff Donnetta Stephens say that she was a regular user of Monsanto’s glyphosate-based Roundup herbicide for more than 30 years, an extended exposure that caused her to develop non-Hodgkin lymphoma (NHL).

Before the trial interruption jury members heard expert witness testimony from former U.S. government scientist Christopher Portier, who told jurors of multiple scientific studies that support claims glyphosate herbicides cause NHL. Lawyers for Monsanto sought to discredit Portier, and discount his testimony, arguing he had a vested financial interest in helping plaintiffs’ attorneys.

Additional experts were due to testify this week before in-person proceedings were scuttled due to positive cases of the Covid-19 virus showing up among people in the courtroom.

Stephens was diagnosed with NHL in 2017 and has suffered from numerous health complications amid multiple rounds of chemotherapy since then. Because of her poor health,  a judge in December granted Stephens a trial “preference,” meaning her case was expedited, after her lawyers informed the court that Stephens is “in a perpetual state of pain,” and losing cognition and memory.

She is one of tens of thousands of plaintiffs who filed lawsuits against Monsanto after the World Health Organization’s cancer experts classified glyphosate as a probable human carcinogen with an association to non-Hodgkin lymphoma.

She and the others who have sued allege that Monsanto has known for decades of scientific research showing its glyphosate herbicides could cause cancer, but has failed to warn users of the risks, working instead to suppress information about potential dangers.

The company lost the three trials held to date.

Trial with child plaintiff is next

Though Bayer last year said it was moving to settle outstanding Roundup lawsuits, many remain active and headed toward trial.

A boy with non-Hodgkin lymphoma is the subject of a trial scheduled for Sept. 13 in Los Angeles County Superior Court. Ezra Clark was “directly exposed” to Roundup many times as he accompanied his mother while she sprayed Roundup to kill weeds around the property where the family lived, according to court documents. Ezra sometimes played in freshly sprayed areas, according to the court filings.

Ezra was diagnosed in 2016, at the age of 4, with Burkitt’s lymphoma, a form of NHL that has a high tendency to spread to the central nervous system, and can also involve the liver, spleen and bone marrow, according to the court filings.

Ezra’s mother, Destiny Clark, is the plaintiff in the case, filing on behalf of Ezra.

Expedited trial sought for dying man

U.S. District Judge Vince Chhabria, who has been overseeing thousands of Roundup cases through multidistrict litigation proceedings set up in 2016 in federal court in the Northern District of California, has set several upcoming deadlines for moving cases forward that are under his purview. According to a court document filed Monday,  close to 4,000 cases have come under Chhabria’s oversight since the inception of the litigation.

Chhabria has ordered lawyers in the litigation to submit to him by Wednesday a list of certain cases that have not yet settled, and proposed schedules for advancing those cases. He also set a case management conference for Sept. 8.

At least one plaintiff is seeking an expedited trial, asking Chhabria to approve trial preference already granted him by a state court judge. Plaintiff Donald Miller was diagnosed with Stage IV non-Hodgkin lymphoma after using Roundup product for over four decades, according to the court filings.

Miller’s doctor estimated he had a five-year overall survival expectancy of only thirty-seven percent as of
February, 2020, according to court filings. A hearing on the matter is set for Sept. 23.

Many more cases remain pending in state courts, with plaintiffs’ lawyers jockeying for trial dates.

Bayer last week petitioned the U.S. Supreme Court to review one of its trial losses. The company claims federal law preempts key claims made in the litigation.

Bayer, which bought Monsanto in 2018, insists that when used as directed, its glyphosate herbicides are safe and do not cause cancer. It says regulatory approvals support its position.

Federal court rejects Syngenta’s bid to toss lawsuit over paraquat herbicide

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Posted on by Carey Gillam

A federal judge has denied Swiss chemical company Syngenta’s effort to throw out one of a growing number of lawsuits alleging the company’s weed killing products cause Parkinson’s Disease. The decision offers a boost for the expanding number of law firms and plaintiffs making similar claims.

In an April 12 ruling, U.S. District Judge John Ross in the Eastern District of Missouri denied a motion filed by Syngenta and co-defendant Chevron that sought to dismiss a lawsuit brought by married Missouri couple Henry and Tara Holyfield.

“We were pleased that the court denied the motions to dismiss,” said Steven Crick, an attorney with the firm of Humphrey, Farrington & McClain who is representing the Holyfields. “We are also confident that the defendants’ efforts to dismiss or derail the case will continue.”

The lawsuit alleges Henry Holyfield developed Parkinson’s, a debilitating and incurable progressive nervous system disorder, due to his exposure to paraquat in his work as a crop duster. The suit alleges that paraquat was distributed “without adequate instructions on safe use” and “without instructions or warnings that the paraquat was dangerous to health and life and caused disease.”

Syngenta manufacturers and distributes paraquat-based Gramoxone, a widely used weed killer popular with American farmers but banned in more than 30 countries because it is known to be acutely toxic. Syngenta acknowledges the dangers of accidental poisoning associated with paraquat, and its products carry strict warning labels about precautions needed for safe use.

But the company has denied the validity of scientific research that has found associations between paraquat exposure and Parkinson’s Disease.

Chevron gained sales and distribution rights for Gramoxone paraquat product in the United States in an agreement with a Syngenta predecessor called Imperial Chemical Industries (ICI), which introduced paraquat-based Gramoxone in 1962. Under a license agreement, Chevron was granted rights to manufacture, use, and sell paraquat formulations in the U.S.

In their motion to dismiss the case, Syngenta and Chevron argued that the Holyfield claims were preempted by federal law governing regulation of paraquat by the Environmental Protection Agency (EPA).

“Paraquat has been heavily regulated by the EPA for decades under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)…” the motion states. “Through decades of scrutiny, the EPA’s judgment continues to be that paraquat is safe for sale and use so long as EPA-prescribed precautions are taken and instructions are followed. To ensure uniformity, FIFRA prohibits states from imposing any labeling requirements “in addition to or different from” FIFRA’s requirements and EPA-approved labels… But that is exactly what the complaint seeks to do.”

Judge Ross said the argument was flawed. FIFRA states that registration approval by the EPA “does not
constitute an absolute defense” to claims that a product was “mislabeled,” he wrote in his decision. Moreover, a 2005 U.S. Supreme Court ruling in a case titled Bates v. Dow Agrosciences established that the EPA’s approval of a product does not rule out claims of a failure to warn brought under state law.

“This Court is aware of no case since Bates in which a court has declined jurisdiction over a FIFRA-related claim pursuant to the doctrine of primary jurisdiction,” the judge wrote in his ruling. “The results of the EPA’s review of paraquat, moreover, will not dictate the success or failure of Plaintiffs’ claims.”

There are currently at least 14 lawsuits filed by eight different law firms in six different federal courts across the country. The lawsuits are all filed on behalf of plaintiffs who have been diagnosed with the neurodegenerative disorder, and they all allege exposure to Syngenta’s paraquat caused their conditions. Several other cases making the same allegations are pending in state courts as well.

New study finds glyphosate-related alterations in gut microbiome

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Posted on by Carey Gillam

A new animal study by a group of European researchers has found that low levels of the weed killing chemical glyphosate and the glyphosate-based Roundup product can alter the composition of the gut microbiome in ways that may be linked to adverse health outcomes.

The paper, published Wednesday in the journal Environmental Health Perspectives, is authored by 13 researchers, including study lead Dr. Michael Antoniou, head of the Gene Expression and Therapy Group within the Department of Medical and Molecular Genetics at King’s College in London, and Dr. Robin Mesnage, a research associate in computational toxicology within the same group.  Scientists from the Ramazzini Institute in Bologna, Italy, participated in the study as did scientists from France and the Netherlands.

The effects of glyphosate on the gut microbiome were found to be caused by the same mechanism of action by which glyphosate acts to kill weeds and other plants, the researchers said.

The microbes in the human gut include a variety of bacteria and fungi that impact immune functions and other important processes, and a disruption of that system can contribute to a range of diseases, the researchers said.

“Both the glyphosate and the Roundup did have an effect on gut bacterial population composition,” Antoniou said in an interview. “We know that our gut is inhabited by thousands of different types of bacteria and a balance in their composition, and more important in their function, is crucial for our health. So anything that disturbs, negatively disturbs, the gut microbiome… has the potential of causing ill health because we go from balanced functioning that is conducive to health to imbalanced functioning that may lead to a whole spectrum of different diseases.”

See Carey Gillam’s interview Dr. Michael Antonoiu and Dr. Robin Mesnage about their new study looking at glyphosate impact on the gut microbiome.

The authors of the new paper said they determined that, contrary to some assertions by critics of glyphosate use, glyphosate did not act as an antibiotic, killing off necessary bacteria in the gut.

Instead, they found – for the first time, they said – that the pesticide interfered in a potentially worrisome way with the shikimate biochemical pathway of the gut bacteria of the animals used in the experiment. That interference was highlighted by changes in specific substances in the gut. Analysis of  gut and blood biochemistry revealed evidence that the animals were under oxidative stress, a condition associated with DNA damage and cancer.

The researchers said it was not clear if the disturbance within the gut microbiome influenced the metabolic stress.

The indication of oxidative stress was more pronounced in experiments using a glyphosate-based herbicide called Roundup BioFlow, a product of Monsanto owner Bayer AG, the scientists said.

The study authors said they were conducting more studies to try to decipher if the oxidative stress they observed was also damaging DNA, which would raise the risk of cancer.

The authors said more research is needed to truly understand the health implications of glyphosate inhibition of the shikimate pathway and other metabolic disturbances in the gut microbiome and blood but the early findings could be used in the development of bio-markers for epidemiological studies and to understand if glyphosate herbicides can have biological effects in people.

In the study, female rats were given glyphosate and the Roundup product. The doses were delivered through the drinking water provided to the animals and were given at levels representing the acceptable daily intakes considered safe by European and U.S. regulators.

Antoniou said the study results build on other research that makes it clear regulators are relying on outdated methods when determining what constitutes “safe” levels of glyphosate and other pesticides in food and water. Residues of pesticides used in agriculture are commonly found in a range of regularly consumed foods.

“Regulators need to come into the twenty-first century, stop dragging their feet… and embrace the types of analyses that we have done in this study,” Antoniou said. He said molecular profiling, part of a branch of science known as “OMICS,” is revolutionizing the base of knowledge about the impacts chemical exposures have on health.

The rat study is but the latest in a series of scientific experiments aimed at determining if glyphosate and glyphosate-based herbicides – including Roundup – can be harmful to humans, even at levels of exposure regulators assert are safe.

Several such studies have found an array of concerns, including one published in November  by researchers from the University of Turku in Finland who said that they were able to determine, in a “conservative estimate,” that approximately 54 percent of species in the core of the human gut microbiome are “potentially sensitive” to glyphosate.

As researchers increasingly look to understand the human microbiome and the role it plays in our health, questions about potential glyphosate impacts on the gut microbiome have been the subject not only of debate in scientific circles, but also of litigation.

Last year, Bayer agreed to pay $39.5 million to settle claims that Monsanto ran misleading advertisements asserting glyphosate only effected an enzyme in plants and could not similarly impact pets and people. The plaintiffs in the case alleged glyphosate targeted an enzyme found in humans and animals that bolsters the immune system, digestion and brain function.

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

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

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

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

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Posted on by Carey Gillam

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

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

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

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

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

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

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

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

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

Bayer’s Monsanto headache persists

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Posted on by Carey Gillam

The migraine that is Monsanto doesn’t appear to be going away anytime soon for Bayer AG.

Efforts at settling the mass of lawsuits brought in the United States by tens of thousands of people who claim Monsanto’s Roundup herbicides gave them cancer continue to inch forward, but are not addressing all outstanding cases, nor are all plaintiffs offered settlements agreeing to them.

In a letter to U.S. District Judge Vince Chhabria, Arizona attorney David Diamond said that representations made by the lawyers leading settlement talks with Bayer on behalf of plaintiffs did not accurately reflect the situation for his own clients. He cited a “lack” of “settlement-related experiences” with Bayer and he requested that Judge Chhabria advance several of Diamond’s cases forward for trials.

“Leadership’s representations regarding settlement do not represent my clients’ settlement
related experiences, interests or position,” Diamond told the judge.

Diamond wrote in the letter that he has 423 Roundup clients, including 345 who have cases pending before Chhabria in the multidistrict litigation (MDL) in the U.S. District Court for the Northern District of California. Alongside the MDL are thousands of plaintiffs whose cases are pending in state courts.

Diamond’s outreach to the judge followed a hearing late last month in which several of the leading firms in the litigation and lawyers for Bayer told Chhabria they were close to resolving most, if not all, of the cases before the judge.

Bayer has reached important settlements with several of the leading law firms who collectively represent a significant share of the claims brought against Monsanto. In June, Bayer said it would provide $8.8 billion to $9.6 billion to resolve the litigation.

But controversy and conflict have dogged the overall settlement offers.

Several plaintiffs represented by the large firms and who spoke on condition that their names not be used, said they are not agreeing to the terms of the settlements, meaning their cases will be directed into mediation and, if that fails, to trials.

After buying Monsanto in 2018, Bayer has been struggling to figure out how to put an end to the litigation that includes more than 100,000 plaintiffs. The company 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 glyphosate-based herbicides, such as Roundup, do cause cancer and that Monsanto spent decades hiding the risks.

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

Problems Just Keep Mounting

Bayer has threatened to file for bankruptcy if it cannot quell the Roundup litigation and on Wednesday the company issued a profit warning and announced billions in cost cuts, citing a “lower than expected outlook in the agricultural market” amid other factors. The news sent shares in the company tumbling.

In reporting Bayer’s troubles Barron’s noted: “The problems just keep mounting for Bayer and its investors, who by now must be used to regular bouts of disappointing news. The stock has now fallen more than 50% since the Monsanto deal was closed in June 2018. “This latest update only adds to the case for the Monsanto deal being one of the worst in corporate history.”

Appeals court denies Monsanto bid for Roundup case rehearing

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Posted on by Carey Gillam

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.

Roundup cancer attorney pleads guilty to extortion attempt

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Posted on by Carey Gillam

A Virginia lawyer who helped represent the first Roundup cancer plaintiff to take Monsanto to trial pleaded guilty on Friday to trying to extort $200 million from a chemical compound supplier to Monsanto.

Timothy Litzenburg, 38, admitted to a scheme in which he and another lawyer threatened to inflict substantial “financial and reputational harm” on the supplier unless that company paid the two attorneys $200 million disguised as a “consulting agreement.”

According to the U.S. Department of Justice, Litzenburg allegedly told the company that if they paid the money, he was willing to “take a dive” during a deposition, intentionally undermining the prospects for future plaintiffs to try to sue.

Litzenburg was charged with one count each of attempted extortion, conspiracy and transmission of interstate communications with intent to extort. He pleaded guilty to one count of transmitting interstate communications with the intent to extort.

Lawyer Daniel Kincheloe, 41, pleaded guilty to the same charge for participating in the scheme.  The men are scheduled to be sentenced on Sept. 18 in U.S. District Court for the Western District of Virginia.

“This is a case where two attorneys blew well past the line of aggressive advocacy and crossed deep into the territory of illegal extortion, in a brazen attempt to enrich themselves by extracting millions of dollars from a multinational company,” Assistant Attorney General Brian A. Benczkowski said in a statement. He said that the plea shows that “when crimes are committed, members of the bar, like all members of the public, will be held accountable for their actions.”

Litzenburg was one of the attorneys for Dewayne “Lee” Johnson leading up to Johnson’s 2018 trial against Monsanto, which resulted in a $289 million jury award in Johnson’s favor. (The judge in the case lowered the verdict and the case is currently under appeal.)

The trial was the first of three that have taken place against Monsanto over allegations that the company’s glyphosate-based herbicides such as Roundup cause non-Hodgkin lymphoma. Monsanto, and its German owner Bayer AG, have lost all three trials to date but are appealing the verdicts.

Though Litzenburg had helped prepare Johnson for trial, he was not allowed to participate during the actual event because of concerns about his behavior held by The Miller Firm, which was his employer at the time.

The Miller firm subsequently fired Litzenburg and filed a lawsuit in early 2019 alleging Litzenburg engaged in self-dealing, and “disloyal and erratic conduct.” Litzenburg responded with a counter-claim. The parties  negotiated a confidential settlement.

The criminal complaint against Litzenburg did not name the company Litzenburg tried to extort, but said that he contacted the company in September of  2019 year stating that he was preparing a lawsuit that would allege the company supplied chemical compounds used by Monsanto to create Roundup and that the company knew the ingredients were carcinogenic but had failed to warn the public.

According to the federal charges, Litzenburg told a lawyer for the company he was trying to extort that the company should enter into a “consulting arrangement” with him so as to create a  conflict of interest that would prevent him from filing the threatened litigation.

Litzenburg wrote in the email that the $200 million consulting agreement for himself and an associate was “a very reasonable price,” according to the criminal complaint.

Federal investigators recorded a phone call with Litzenburg discussing the $200 million he was seeking, the complaint states. Litzenburg was allegedly recorded as saying: “The way that I guess you guys will think about it and we’ve thought about it too is savings for your side. I don’t think if this gets filed and turns into mass tort, even if you guys win cases and drive value down… I don’t think there’s any way you get out of it for less than a billion dollars. And so, you know, to me, uh, this is a fire sale price that you guys should consider…”

Litzenburg claimed to be representing roughly 1,000 clients suing Monsanto over Roundup cancer causation allegations at the time of his arrest last year.

Dicamba Fact Sheet

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Posted on by Carey Gillam

Latest news: The U.S. Environmental Protection Agency announced October 27 it will allow U.S. farmers to continue spraying crops with Bayer AG’s weedkiller used on dicamba-resistant GMO soybeans and cotton, despite a court order blocking sales. In June an appeals court ruled that EPA “substantially understated the risks” of dicamba weed killers. Dozens of farmers around the U.S. are suing Bayer (formerly Monsanto) and BASF in an effort to hold the companies accountable for millions of acres of crop damage the farmers claim is due to widespread use of dicamba. We are posting discovery documents and analysis of the trials on our Dicamba Papers page.

Overview

Dicamba (3,6-dichloro-2-methoxybenzoic acid) is a broad-spectrum herbicide first registered in 1967. The herbicide is used on agricultural crops, fallow land, pastures, turfgrass and rangeland. Dicamba is also registered for non-agricultural uses in residential areas and other sites, such as golf courses where it is primarily used to control broadleaf weeds such as dandelions, chickweed, clover and ground ivy.

More than 1,000 products sold in the United States that include dicamba, according to the National Pesticide Information Center. Dicamba’s mode of action is as an auxin agonist: it produces uncontrollable growth that leads to plant death.

Environmental Concerns 

Older versions of dicamba were known to drift far from where they were applied, and typically were not used widely during warm growing months when they could kill off-target crops or trees.

The Environmental Protection Agency approved the registration of new dicamba formulations in 2016, however, allowing for a new use of “over-the-top” applications on growing dicamba-tolerant cotton and soybean plants. Scientists warned the new uses would result in dicamba drift damage.

The new uses for dicamba came about because of the development of widespread weed resistance to glyphosate-based herbicides, including the popular Roundup brand, introduced by Monsanto in the 1970s. In the 1990s, Monsanto introduced glyphosate-tolerant crops, and encouraged famers to use its “Roundup Ready” cropping systems. Farmers could plant Monsanto’s genetically engineered glyphosate-tolerant soybeans, corn, cotton and other crops, and then spray glyphosate herbicides such as Roundup directly over the top of the growing crops without killing them. The system made weed management easier for farmers as they could spray the chemicals directly over their entire fields during the growing season, wiping out weeds that competed with the crops for moisture and soil nutrients.

The popularity of the Roundup Ready system led to a surge in weed resistance, however, leaving farmers with fields of hardy weeds that would no longer die when sprayed with glyphosate.

In 2011 Monsanto announced that glyphosate, had been “relied on too long by itself” and said it planned to collaborate with BASF and develop a cropping system of genetically engineered crops that would tolerate being sprayed with dicamba. It said it would introduce a new type of dicamba herbicide that would not drift far from fields where it was sprayed.

Since the introduction of the new system, complaints about dicamba drift damage have surged in several farm states, including hundreds of complaints from Illinois, Indiana, Iowa, Missouri and Arkansas.

In a report dated Nov. 1, 2017, the EPA said it had tallied 2,708 official dicamba-related crop injury investigations (as reported by state departments of agriculture). The agency said there were more than 3.6 million acres of soybeans impacted at that time. Other impacted crops were tomatoes, watermelon, cantaloupe, vineyards, pumpkins, vegetables, tobacco, residential gardens, trees and shrubs

In July 2017, the Missouri Department of Agriculture temporarily issued a “Stop Sale, Use or Removal Order,” on all dicamba products in Missouri.  The state lifted the order in September 2017.

These are some dicamba products:

On Oct. 31, 2018, the U.S. Environmental Protection Agency (EPA) announced an extension of Engenia, XtendiMax and FeXapan registrations through 2020 for “over-the-top” use in dicamba-tolerant cotton and soybean fields. EPA said it had enhanced the previous labels and put in place additional safeguards in an effort to increase the success and safe use of the product in the field.

The two-year registration is valid through Dec. 20, 2020. The EPA has stated the following provisions:

  • Only certified applicators may apply dicamba over-the-top (those working under the supervision of a certified applicator may no longer make applications)
  • Prohibit over-the-top application of dicamba on soybeans 45 days after planting or up until the R1 growth stage (first bloom), whichever comes first
  • Prohibit over-the-top application of dicamba on cotton 60 days after planting
  • For cotton, limit the number of over-the-top applications from four to two
  • For soybeans, the number of over-the-top applications remains at two
  • Applications will be allowed only from one hour after sunrise to two hours before sunset
  • In counties where endangered species may exist, the downwind buffer will remain at 110 feet and there will be a new 57-foot buffer around the other sides of the field (the 110-foot downwind buffer applies to all applications, not just in counties where endangered species may exist)
  • Enhanced tank clean-out instructions for the entire system
  • Enhanced label to improve applicator awareness on the impact of low pH on the potential volatility of dicamba
  • Label clean up and consistency to improve compliance and enforceability

U.S. Court of Appeals 9th Circuit Ruling 

On June 3, 2020. the U.S. Court of Appeals for the Ninth Circuit said the Environmental Protection Agency had violated the law in approving dicamba herbicides make by Bayer, BASF and Corteva Agrisciences. The court overturned the agency’s approval of the popular dicamba-based herbicides made by the three chemical giants. The ruling made it illegal for farmers to continue to use the product.

But the EPA flouted the court ruling, issuing a notice on June 8 that said growers could continue to use the companies’ dicamba herbicides until July 31, despite the fact that the court specifically said in its order that it wanted no delay in vacating those approvals. The court cited damage done by dicamba use in past summers to millions of acres of crops, orchards and vegetable plots across U.S. farm country.

On June 11, 2020, the petitioners in the case filed an emergency motion seeking to enforce the court order and to hold the EPA in contempt.

More details can be found here.

Food Residues 

Just as glyphosate applications in farm fields have been found to leave residues of glyphosate on and in finished foods, such as oatmeal, breads, cereals, etc., dicamba residues are expected to leave residues in food. Farmers whose produce has been contaminated with dicamba residues via drift have expressed concerns that their products might be rejected or otherwise harmed commercially because of the residue issue.

The EPA has set tolerance levels for dicamba is several grains and for the meat of livestock that consume grains, but not for a variety of fruits and vegetables. A tolerance for dicamba in soybeans is set at 10 parts per million, for instance, in the United States, and a 2 parts per million for wheat grain. Tolerances can be seen here. 

The EPA has issued this statement regarding dicamba residues in food: “EPA performed the analysis required by the Federal Food, Drug and Cosmetic Act (FFDCA) and determined that residues on food are “safe” – meaning that there is a reasonable certainty of no harm to people, including all reasonably identifiable subpopulations, including infants and children, from dietary and all other non-occupational exposure to dicamba.”

Cancer and Hypothyroidism 

The EPA states that dicamba is not likely to be carcinogenic, but some studies have found an increased risk of cancer for users of dicamba.

See these studies regarding the human health effects of dicamba:

Dicamba use and cancer incidence in the agricultural health study: an updated analysis International Journal of Epidemiology (05.01.2020) “Among 49 922 applicators, 26 412 (52.9%) used dicamba. Compared with applicators reporting no dicamba use, those in the highest quartile of exposure had elevated risk of liver and intrahepatic bile duct cancer and chronic lymphocytic leukaemia and decreased risk of myeloid leukaemia.”

Pesticide Use and Incident Hypothyroidism in Pesticide Applicators in the Agricultural Health Study.  Environmental Health Perspectives (9.26.18)
“In this large prospective cohort of farmers that were occupationally exposed to pesticides, we found that ever-use of four organochlorine insecticides (aldrin, chlordane, heptachlor, and lindane), four organophosphate insecticides (coumaphos, diazinon, dichlorvos, and malathion), and three herbicides (dicamba, glyphosate, and 2,4-D) was associated with increased risk of hypothyroidism.”

Hypothyroidism and pesticide use among male private pesticide applicators in the agricultural health study. Journal of Occupational Environmental Medicine (10.1.14)
“The herbicides 2,4-D, 2,4,5-T, 2,4,5-TP, alachlor, dicamba, and petroleum oil were all associated with an increased odds of hypothyroidism”

A review of pesticide exposure and cancer incidence in the Agricultural Health Study cohort.  Environmental Heath Perspectives (8.1.10)
“We reviewed 28 studies; most of the 32 pesticides examined were not strongly associated with cancer incidence in pesticide applicators. Increased rate ratios (or odds ratios) and positive exposure–response patterns were reported for 12 pesticides currently registered in Canada and/or the United States (alachlor, aldicarb, carbaryl, chlorpyrifos, diazinon, dicamba, S-ethyl-N,N-dipropylthiocarbamate, imazethapyr, metolachlor, pendimethalin, permethrin, trifluralin).”

Cancer Incidence among Pesticide Applicators Exposed to Dicamba in the Agricultural Health Study. Environmental Health Perspectives (7.13.06)
“Exposure was not associated with overall cancer incidence nor were there strong associations with any specific type of cancer. When the reference group comprised low-exposed applicators, we observed a positive trend in risk between lifetime exposure days and lung cancer (p = 0.02), but none of the individual point estimates was significantly elevated. We also observed significant trends of increasing risk for colon cancer for both lifetime exposure days and intensity-weighted lifetime days, although these results are largely due to elevated risk at the highest exposure level.”

Non-Hodgkin’s Lymphoma and Specific Pesticide Exposures in Men: Cross-Canada Study of Pesticides and Health.  Cancer Epidemiology, Biomarkers and Prevention (11.01)
“Among individual compounds, in multivariate analyses, the risk of NHL was statistically significantly increased by exposure to the herbicides…dicamba (OR, 1.68; 95% CI, 1.00–2.81); ….In additional multivariate models, which included exposure to other major chemical classes or individual pesticides, personal antecedent cancer, a history of cancer among first-degree relatives, and exposure to mixtures containing dicamba (OR, 1.96; 95% CI, 1.40–2.75)…were significant independent predictors of an increased risk for NHL”

Litigation 

The dicamba drift damage concerns have prompted lawsuits from farmers in many U.S. states. Details on the litigation can be found here.