herbicide

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.

UPDATED -Court overturns EPA approval of Bayer dicamba herbicide; says regulator “understated the risks”

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Posted on by Carey Gillam

(UPDATES with statement from BASF)

In a stunning rebuke of the Environmental Protection Agency, a federal court on Wednesday overturned the agency’s approval of popular dicamba-based herbicides made by chemical giants Bayer, BASF and Corteva Agrisciences. The ruling effectively makes it illegal for farmers to continue to use the product.

The ruling by the U.S. Court of Appeals for the Ninth Circuit found that the EPA “substantially understated the risks” of the dicamba herbicides and “failed entirely to acknowledge other risks.”

“The EPA made multiple errors in granting the conditional registrations,” the court ruling states.

Monsanto and the EPA had asked the court, if it did agree with the plaintiffs, not to immediately overturn the approvals of the weed killing products. The court said simply: “We decline to do so.”

The lawsuit was brought by the National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity, and Pesticide Action Network North America.

The plaintiffs accused the EPA of breaking the law in evaluating the impacts of a system designed by Monsanto, which was bought by Bayer in 2018, that has triggered “widespread” crop damage over the last few summers and continues to threaten farms across the country.

“Today’s decision is a massive win for farmers and the environment,” said George Kimbrell of the Center for Food Safety, lead counsel in the case. “It is good to be reminded that corporations like Monsanto and the Trump Administration cannot escape the rule of law, particularly at a time of crisis like this. Their day of reckoning has arrived.”

The court found that among other problems, the EPA “refused to estimate the amount of dicamba damage, characterizing such damage as ‘potential’ and ‘alleged,’ when record evidence showed that dicamba had caused substantial and undisputed damage.”

The court also found that the EPA failed to acknowledge that restrictions it placed on the use of the dicamba herbicides would not be followed,  and it determined that the EPA “entirely failed to acknowledge the substantial risk that the registrations would have anticompetitive economic effects in the soybean and cotton industries.”

Finally, the court said, the EPA entirely failed to acknowledge the risk that the new use of dicamba herbicides set up by Monsanto, BASF and Corteva would “tear the social fabric of farming communities.”

Farmers have been using dicamba herbicides for more than 50 years but traditionally avoided applying the herbicide during hot summer months, and rarely if ever over large swaths of land due to the well-known propensity of the chemical to drift far from intended target areas where it could damage crops, gardens, orchards, and shrubs.

Monsanto upended that restraint when it launched dicamba-tolerant soybean and cotton seeds a few years ago, encouraging farmers to spray new formulations of dicamba “over the top” of these genetically engineered crops during warm-weather growing months.

Monsanto’s move to create genetically engineered dicamba-tolerant crops came after its glyphosate-tolerant crops and widespread spraying of glyphosate created an epidemic of weed resistance across U.S. farmland.

Farmers, agricultural scientists and other experts warned Monsanto and the EPA that introducing a dicamba-tolerant system would not only create more herbicide resistance but would lead to devastating damage to crops that are not genetically engineered to tolerate dicamba.

Despite the warnings, Monsanto, along with BASF and Corteva AgriScience all gained approval from the EPA to market new formulations of dicamba herbicides for this widespread type of spraying. The companies claimed their new versions of dicamba would not volatize and drift as older versions of dicamba weed killing products were known to do. But those assurances have proven false amid widespread complaints of dicamba drift damage since the introduction of the new dicamba-tolerant crops and the new dicamba herbicides. More than one million acres of crop damage was reported last year in 18 states, the court noted.

As predicted, there have been thousands of dicamba damage complaints recorded in multiple states. In its ruling, the court noted that in 2018, out of 103 million acres of soybeans and cotton planted in the United States, about 56 million acres were planted with seeds with Monsanto’s dicamba-tolerance trait, up from 27 million acres the year before in 2017.

In February, a unanimous jury awarded a Missouri peach farmer $15 million in compensatory damages and $250 million in punitive damages to be paid by Bayer and BASF for dicamba damage to his property.

Bayer issued a statement following the ruling saying it strongly disagreed with the court ruling and was assessing its options.

“The EPA’s informed science-based decision reaffirms that this tool is vital for growers and does not pose any unreasonable risks of off-target movement when used according to label directions,” the company said. “If the ruling stands, we will work quickly to minimize any impact on our customers this season.”

Corteva also said its dicamba herbicides were needed farmer tools and that it was assessing its options.

BASF called the court order “unprecedented” and said it “has the potential to be devastating to tens of thousands of farmers.”

Farmers could lose “significant revenue” if they are not able to kill weeds in their soybean and cotton fields with the dicamba herbicides, the company said.

“We will use all legal remedies available to challenge this Order,” BASF said.

An EPA spokesman said the agency was currently reviewing the court decision and “will move promptly to address the Court’s directive.”

The court acknowledged the decision could be costly for farmers who have already purchased and/or planted dicamba-tolerant seeds for this season and planned to use the dicamba herbicides on them because the ruling disallows that herbicide use.

“We acknowledge the difficulties these growers may have in finding effective and legal herbicides to protect their (dicamba-tolerant) crops…” the ruling states. “They have been placed in this situation through no fault of their own. However, the absence of substantial evidence to support the EPA’s decision compels us to vacate the registrations.”

Dicamba: Farmers fear another season of crop damage; court ruling awaited

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Posted on by Carey Gillam

With the turn of the calendar to June, farmers in the U.S. Midwest are wrapping up the planting of new soybean crops and tending to growing fields of young corn plants and vegetable plots. But many are also bracing to be hit by an invisible enemy that has wreaked havoc in farm country the last few summers – the chemical weed killer dicamba.

Jack Geiger, a certified organic farmer in Robinson, Kansas, describes the last few summer growing seasons as characterized by “chaos,” and said he partially lost certification for one field of organic crops due to contamination with dicamba sprayed from afar. Now he is pleading with neighbors who spray the weed killer on their fields to make sure the chemical stays off his property.

“There is dicamba everywhere,” Geiger said.

Geiger is only one of hundreds of farmers around the U.S. Midwest and several southern states who have reported crop damages and losses they claim were caused by drifting dicamba over the last few years.

Farmers have been using dicamba herbicides for more than 50 years but traditionally avoided applying the herbicide during hot summer months, and rarely if ever over large swaths of land due to the well-known propensity of the chemical to drift far from intended target areas.

That restraint was reversed after Monsanto launched dicamba-tolerant soybean and cotton seeds to encourage farmers to spray new formulations of dicamba “over the top” of these genetically engineered crops. Monsanto, which is now owned by Bayer AG, along with BASF and Corteva AgriScience all gained approval from the Environmental Protection Agency (EPA) to market new formulations of dicamba herbicides for spraying over the tops of growing dicamba-tolerant crops. The companies claimed their new versions of dicamba would not volatize and drift as older versions of dicamba weed killing products were known to do.

But those assurances have proven false amid widespread complaints of dicamba drift damage since the introduction of the new dicamba-tolerant crops and the new dicamba herbicides.

A consortium of farmer and consumer groups sued the EPA over its backing of the over-the-top use of the dicamba herbicides and is now awaiting a ruling by the ninth circuit court of appeals in San Francisco regarding their demand that the court overturn the EPA’s approval of the three company’s herbicides. Oral arguments were held in April.

The consumer and environmental groups allege the EPA broke the law by failing to analyze the “significant socioeconomic and agronomic costs to farmers” leading to “catastrophic” levels of crop damage.

The groups say the EPA seems more interested in protecting the business interests of Monsanto and the other companies than in protecting farmers.

Lawyers for Monsanto, representing the company as a unit of Bayer, said the plaintiffs have no credible argument. The company’s new dicamba herbicide, called XtendiMax, “has assisted growers in addressing a significant nationwide weed resistance problem, and soybean and cotton yields have hit record highs nationwide during this litigation,” according to a brief filed by the company’s lawyers on May 29.

“Petitioners’ request for an order immediately halting all sales and uses of the pesticide invites legal error and potentially disastrous real-world impacts,” the company said.

As they await the federal court’s decision, farmers are hoping that new restrictions put in place by some states will protect them. The Illinois Department of Agriculture has advised applicators that they can’t spray after June 20, that they should not spray dicamba products if the temperature is over 45 degrees Fahrenheit, and that they should only apply dicamba when the wind is blowing away from “sensitive” areas. Minnesota, Indiana, North Dakota and South Dakota are among other states putting in place cut-off dates for spraying dicamba.

Steve Smith, director of agriculture at Red Gold Inc, the world’s largest canned tomato processor, said even with the state restrictions he is “extremely concerned” about the upcoming season. More acres of being planting with the dicamba-tolerant soybeans developed by Monsanto so it is likely there will be more dicamba being sprayed, he said.

“We’ve worked hard to keep the message out there of not to get close to us, but someone, sometime, is going to make a mistake that could seriously cost us our business,”  he said.

Smith said he is hopeful the court will overturn the EPA approval and “stop this insanity of a system.”

Separately from the potential dicamba damage to crops, new research was recently published showing that farmers exposed to high levels of dicamba appear to have elevated risks of liver and other types of cancer.  Researchers said the new data showed that an association previously seen in the data between dicamba and lung and colon cancers was “no longer apparent” with the updated data.

As Roundup cancer lawsuits surge, Monsanto fights to keep PR work secret

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Posted on by Carey Gillam

As Monsanto continues to battle legal claims over alleged dangers of its widely used Roundup herbicides, the company is trying to block orders to turn over internal records about its work with public relations and strategic consulting contractors.

In a series of filings in St. Louis Circuit Court, Monsanto argues that it should not have to comply with discovery requests involving certain dealings between it and the global public relations firm FleishmanHillard, despite the fact that a special master has found Monsanto should hand those documents over. Monsanto is asserting that its communications with FleishmanHillard should be considered “privileged,” similar to attorney-client communications, and that Monsanto should not have to produce them as part of discovery to the lawyers representing the cancer patients suing Monsanto.

FleishmanHillard became the agency of record for Monsanto’s “corporate reputation work” in 2013, and its employees became deeply involved with the company, working “at Monsanto’s offices nearly every day” and gaining “access to online repositories of non-public confidential information,”  the company said. “The fact that some of these communications involve the creation of public messaging does not strip them of privilege,” Monsanto said in its court filing.

FleishmanHillard worked on two projects for Monsanto in Europe regarding re-registration of
glyphosate and worked with Monsanto lawyers on a “specific project for jury research.” The nature of the work done by the public relations firm “required privileged communications” with Monsanto’s legal counsel, the company said.

Earlier this year Monsanto owner Bayer AG said it was ending Monsanto’s relationship with FleishmanHillard after news broke that the public relations firm engaged in a Europe-wide data collection scheme for Monsanto, targeting journalists, politicians and other stakeholders to try to influence pesticide policy.

Monsanto has taken a similar position with respect to communications involving its work with corporate image management company FTI Consulting, which Monsanto hired in June 2016. “The absence of an attorney on a privileged document also does not automatically render that document susceptible to a privilege challenge,” Monsanto said in its filing.

Earlier this year, an FTI employee was caught impersonating a journalist at one of the Roundup cancer trials, trying to suggest story lines for other reporters to pursue that favored Monsanto.

The company also wants to avoid handing over documents involving its relationship with Scotts Miracle-Gro Company, which has been marketing and selling Monsanto’s Roundup lawn and garden products since 1998.

More than 40,000 cancer victims or their family members are now suing Monsanto blaming exposure to the company’s line of Roundup herbicides for their diseases, according to Bayer. The lawsuits allege that exposure to Monsanto’s herbicides caused the plaintiffs to develop non-Hodgkin lymphoma and that though Monsanto knew about the cancer risks, it intentionally did not warn consumers.

Bayer held a conference call with investors Wednesday to discuss its third quarter results and to update shareholders on the Roundup litigation.  Striking a reassuring tone, Bayer CEO Werner Baumann said that while investors might be surprised at the high number of lawsuits, it is “actually not that surprising.” He said plaintiffs’ attorneys in the United States have been spending tens of millions of dollars advertising for clients.

“This increase in the number of lawsuits does not change our conviction of the safety profile of glyphosate and is by no means a reflection of the merits of this litigation,” Baumann said. Appeals are underway after the company lost the first three trials, and the company is “constructively” engaging in mediation, according to Baumann. Bayer will only agree to a settlement that is “financially reasonable” and will bring “reasonable closure to the overall litigation,” he said.

Though the company refers to it as “glyphosate” litigation, the plaintiffs allege that their cancers were not caused by exposure to glyphosate alone, but by exposure to glyphosate-based formulated products made by Monsanto.

Many scientific studies have shown that the formulations are much more toxic than glyphosate by itself. The U.S. Environmental Protection Agency (EPA) has not required long-term safety studies on Roundup formulations throughout the 40-plus years the products have been on the market, and internal company  communications between Monsanto scientists have been obtained by plaintiffs’ attorneys in which the scientists discuss the lack of carcinogenicity testing for Roundup products.

Multiple trials that were scheduled for this fall in the St. Louis, Missouri area have been delayed until next year.

Trial in Monsanto’s Hometown Set for August After $2 Billion Verdict

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Posted on by Susan Lang

This article was originally published in Environmental Health News.

By Carey Gillam

After three stunning courtroom losses in California, the legal battle over the safety of Monsanto’s top-selling Roundup herbicide is headed for the company’s hometown, where corporate officials can be forced to appear on the witness stand, and legal precedence shows a history of anti-corporate judgments.

“The things that have gone on here, I want St. Louis juries to hear this stuff.”

Sharlean Gordon, a cancer-stricken woman in her 50s, is the next plaintiff currently set for trial. Gordon v. Monsanto starts Aug. 19 in St. Louis County Circuit Court, located just a few miles from the St. Louis, Missouri-area campus that was the company’s longtime world headquarters until Bayer bought Monsanto last June. The case was filed in July 2017 on behalf of more than 75 plaintiffs and Gordon is the first of that group to go to trial.

According to the complaint, Gordon purchased and used Roundup for at least 15 continuous years through approximately 2017 and was diagnosed with a form of non-Hodgkin lymphoma in 2006. Gordon has gone through two stem cell transplants and spent a year in a nursing home at one point in her treatment.

She is so debilitated that it is difficult for her to be mobile.

Her case, like that of the thousands of others filed around the United States, alleges use of Monsanto’s glyphosate-based herbicides caused her to develop non-Hodgkin lymphoma.

“She’s been through hell,” St. Louis attorney Eric Holland, one of the legal team members representing Gordon, told EHN. “She’s horribly injured. The human toll here is tremendous. I think Sharlean is really going to put a face on what Monsanto’s done to people.”

Holland said the hardest part about preparing for trial is determining what evidence to present to the jury within the three-week time span that the judge has set for the trial.

“This evidence against them, their conduct, is the most outrageous I’ve seen in my 30 years of doing this,” Holland said. “The things that have gone on here, I want St. Louis juries to hear this stuff.”

That Gordon trial will be followed by a September 9 trial also in St. Louis County in a case brought by plaintiffs Maurice Cohen and Burrell Lamb.

Monsanto’s deep roots in the community, including a large employment base and generous charitable donations throughout the area, could favor its chances with local jurors.

But on the flip side, St. Louis is regarded in legal circles as one the most favorable places for plaintiffs to bring lawsuits against corporations and there is a long history of large verdicts against major companies. St. Louis City Court is generally considered the most favorable but St. Louis County is also desired by plaintiffs’ attorneys.

The approach of the August and September trials comes on the heels of a stunning $2 billion verdict issued against Monsanto May 13. In that case, a jury in Oakland, California, awarded married couple Alva and Alberta Pilliod, who both suffer from cancer, $55 million in compensatory damages and $1 billion each in punitive damages.

The jury found that Monsanto has spent years covering up evidence that its herbicide causes cancer.

That verdict came only a little more than a month after a San Francisco jury ordered Monsanto to pay $80 million in damages to Edwin Hardeman, who also developed non-Hodgkin lymphoma after using Roundup. And last summer, a jury ordered Monsanto to pay $289 million to groundskeeper Dewayne “Lee” Johnson who received a terminal cancer diagnosis after using Monsanto herbicides in his job.

Aimee Wagstaff, who was co-lead counsel for Hardeman, is set to try the Gordon case in St. Louis with Holland. Wagstaff said she plans to subpoena several Monsanto scientists to appear on the witness stand to answer questions directly in front of a jury.

She and the other attorneys trying the California cases were not able to force Monsanto employees to testify live because of the distance. The law provides that witnesses cannot be compelled to travel more than 100 miles or out of state from where they live or work.

Mediation meeting

The trial losses have left Monsanto and its German owner Bayer AG under siege. Angry investors have pushed share prices to the lowest levels in roughly seven years, erasing more than 40 percent of Bayer’s market value.

And some investors are calling for Bayer CEO Werner Baumann to be ousted for championing the Monsanto acquisition, which closed in June of last year just as the first trial was getting underway.

Bayer maintains that there is no valid evidence of cancer causation associated with Monsanto’s herbicides, and says it believes it will win on appeal. But U.S. District Judge Vince Chhabria has ordered Bayer to begin mediation talks aimed at potentially settling the sprawling mass of lawsuits that includes roughly 13,400 plaintiffs in the United States alone.

All the plaintiffs are cancer victims or their family members and all allege Monsanto engaged in a range of deceptive tactics to hide the risks of its herbicides, including manipulating the scientific record with ghostwritten studies, colluding with regulators, and using outside individuals and organizations to promote the safety of its products while making sure they falsely appeared to be acting independently of the company.

A May 22 hearing is being held in part to define details of the mediation process. Bayer has indicated that it will comply with the order, but may not yet be ready to consider settling the litigation despite the courtroom losses.

Meanwhile, the litigation that originated in the United States has crossed the border into Canada where a Saskatchewan farmer is leading a class action lawsuit against Bayer and Monsanto making allegations that mirror those in the U.S. lawsuits.

“The Queen of Roundup”

Elaine Stevick of Petaluma, California was supposed to be the next in line to take on Monsanto at trial.

But in his order of mediation, Judge Chhabria also vacated her May 20 trial date. A new trial date is to be discussed at the hearing on Wednesday.

Stevick and her husband Christopher Stevick sued Monsanto in April of 2016 and said in an interview that they are eager to get their chance to confront the company over the devastating damage they say Elaine’s use of Roundup has done to her health.

She was diagnosed in December 2014 at the age of 63 with multiple brain tumors due to a type of non-Hodgkin lymphoma called central nervous system lymphoma (CNSL). Alberta Pilliod, who just won the most recent trial, also had a CNSL brain tumor.

The couple purchased an old Victorian home and overgrown property in 1990 and while Christopher worked on renovating the interior of the house, Elaine’s job was to spray weed killer over the weeds and wild onions that the couple said took over a good portion of the property.

She sprayed multiple times a year until she was diagnosed with cancer. She never wore gloves or other protective clothing because believed it to be as safe as advertised, she said.

Stevick is currently in remission but nearly died at one point in her treatment, Christopher Stevick said.

“I called her the ‘queen of Roundup’ because she was always walking around spraying the stuff,” he told EHN.

The couple attended parts of both the Pilliod and Hardeman trials, and said they are grateful the truth about Monsanto’s actions to hide the risks are coming into the public spotlight. And they want to see Bayer and Monsanto start warning users about the cancer risks of Roundup and other glyphosate-based herbicides.

“We want the companies to take responsibility for warning people—even if there is a chance that something would be harmful or hazardous for them, people should be warned,” Elaine Stevick told EHN.

Who Is Paying for Monsanto’s Crimes? We Are

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Posted on by Susan Lang

This article was originally published in The Guardian.

By Carey Gillam

The chickens are coming home to roost, as they say in farm country.

For the second time in less than eight months a US jury has found that decades of scientific evidence demonstrates a clear cancer connection to Monsanto’s line of top-selling Roundup herbicides, which are used widely by consumers and farmers. Twice now jurors have additionally determined that the company’s own internal records show Monsanto has intentionally manipulated the public record to hide the cancer risks. Both juries found punitive damages were warranted because the company’s cover-up of cancer risks was so egregious.

The juries saw evidence that Monsanto has ghost-written scientific papers, tried to silence scientists, scuttled independent government testing and cozied up to regulators for favorable safety reviews of glyphosate, the active ingredient in Roundup.

Even the US district judge Vince Chhabria, who oversaw the San Francisco trial that concluded Wednesday with an $80.2m damage award, had harsh words for Monsanto. Chhabria said there were “large swaths of evidence” showing that the company’s herbicides could cause cancer. He also said there was “a great deal of evidence that Monsanto has not taken a responsible, objective approach to the safety of its product … and does not particularly care whether its product is in fact giving people cancer, focusing instead on manipulating public opinion and undermining anyone who raises genuine and legitimate concerns about the issue.”

Monsanto’s new owner, the German pharmaceutical company Bayer, asserts that the juries and judges are wrong; the evidence of a cancer risk is invalid; the evidence of bad corporate conduct is misunderstood and out of context; and that the company will ultimately prevail.

Meanwhile, Monsanto critics are celebrating the wins and counting on more as a third trial got underway this week and 11,000 additional plaintiffs await their turn. As well, a growing number of communities and businesses are backing away from use of Monsanto’s herbicides. And investors are punishing Bayer, pushing share prices to a seven-year low on Thursday.

Susquehanna Financial Group analyst Tom Claps has warned shareholders to brace for a global settlement of between $2.5bn and $4.5bn.

“We don’t believe [Monsanto] will lose every single trial, but we do believe that they could lose a significant majority,” he told the Guardian.

Following the recent courtroom victories, some have cheered the notion that Monsanto is finally being made to pay for alleged wrongdoing. But by selling to Bayer last summer for $63bn just before the Roundup cancer lawsuits started going to trial, Monsanto executives were able to walk away from the legal mess with riches. The Monsanto chairman Hugh Grant’s exit package allowed him to pocket $32m, for instance.

Amid the uproar of the courtroom scuffles, a larger issue looms: Monsanto’s push to make use of glyphosate herbicides so pervasive that traces are commonly found in our food and even our bodily fluids, is just one example of how several corporate giants are creating lasting human health and environmental woes around the world. Monsanto and its brethren have targeted farmers in particular as a critical market for their herbicides, fungicides and insecticides, and now many farmers around the world believe they cannot farm without them.

Studies show that along with promoting illness and disease in people, these pesticides pushed by Bayer and Monsanto, DowDuPont and other corporate players, are endangering wildlife, soil health, water quality and the long-term sustainability of food production. Yet regulators have allowed these corporations to combine forces, making them ever more powerful and more able to direct public policies that favor their interests.

The Massachusetts senator Elizabeth Warren this week called for taking back some of that power. She announced on Wednesday a plan to break up big agribusinesses and work against the type of corporate capture of Washington we have seen in recent years.

It’s a solid step in the right direction. But it cannot undo the suffering of cancer victims, nor easily transform a deeply contaminated landscape to create a healthier future and unleash us from the chains of a pesticide-dependent agricultural system.

And while Bayer may dole out a few billion dollars in damages, who is really being made to pay?

We all are.