Settlement in Monsanto Roundup cancer litigation complicated by hold-out attorney

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What will it take to get Mike Miller to settle? That is the pressing question as one of the lead lawyers in the nationwide Roundup cancer litigation has thus far refused to align with fellow litigators in agreeing to settle cases on behalf of thousands of cancer patients who claim their diseases were caused by exposure to Monsanto’s herbicide products.

Mike Miller, head of the Orange, Virginia-based law firm that bears his name, has been unwilling to accept the terms of settlement offers discussed in mediation talks between Monsanto’s German owner Bayer AG and a team of plaintiffs’ attorneys. That recalcitrance is a critical sticking point that is interfering with a resolution, sources close to the litigation say.

Instead, Miller’s firm is launching two new trials this month, including one that started today in Contra Costa, California, and one that starts Tuesday in St. Louis, Missouri. It is possible that Miller could agree to a settlement at any point, interrupting trial proceedings, however. Miller also has a trial set for February in the U.S. District Court in San Francisco. That case, brought by cancer patient Elaine Stevick, would be the second trial to be held in federal court.

Miller’s move to continue to try cases separates him from other leading Roundup plaintiffs’ firms, including the Baum Hedlund Aristei & Goldman law firm of Los Angeles and the Denver, Colorado-based Andrus Wagstaff firm. Like the Miller firm, Baum Hedlund and Andrus Wagstaff represent several thousands plaintiffs.

Those firms have agreed to cancel or postpone multiple trials, including two that involved young children with cancer, in order to facilitate a settlement.

Some sources have pegged a potential settlement number at $8 billion-$10 billion, though some analysts have said that number would be hard to justify to Bayer investors, who are keeping a close eye on the developments.

Critics accuse Miller of acting in a way that could hurt the ability of thousands of plaintiffs to obtain payouts from Bayer, but supporters say he is championing his clients’ interests and refusing to accept terms he finds less than optimal. Miller is a veteran litigator who has a long history of taking on large companies, including pharmaceutical giants, over alleged product-related consumer injuries.

Mediator Ken Feinberg said it was unclear if there could be a global settlement achieved without Miller.

“Mike Miller has a view of what his cases are worth and is seeking what he thinks is appropriate compensation,” said Feinberg.  U.S. District Judge Vince Chhabria appointed Feinberg to act as a mediator between Bayer and the plaintiffs’ attorneys last May.

Monsanto has lost all three of the trials held so far. The Miller Firm handled two of those trials – bringing in Baum Hedlund lawyers to help with the case of  Dewayne “Lee” Johnson (after Mike Miller was severely injured in an accident just prior to trial) and also with the case of husband-and-wife plaintiffs, Alva and Alberta Pilliod.  Johnson was awarded $289 million and the Pilliods were awarded more than $2 billion though the trial judges in each case lowered the awards. The other trial that has thus far taken place, on claims brought by Edwin Hardeman, was handled by the Andrus Wagstaff firm and attorney Jennifer Moore.

Miller’s bid to push new trials carries several risks, including the fact that Monsanto could prevail in one or more of the cases, which could provide leverage to Bayer in settlement talks. Conversely, though, if Miller were to win the trials that could offer fresh leverage for the plaintiffs to ask for more money.

The pressure to settle has been ratcheting higher for both sides.  Complicating factors include a ballooning of the number of plaintiffs’ signed by law firms around the United States amid the publicity of a possible settlement. Some media reports have pegged the total number of plaintiffs at 80,000 while some sources have said the number is well over 100,000. A large part of that number, however, reflects plaintiffs that are signed but have not filed actions in court, and some who have filed but do not have  trial dates. Any settlement now would represent a large percentage of plaintiffs, but not likely all, sources said.

All the cases allege that the cancers were caused by exposure to Monsanto’s glyphosate-based herbicides, including the widely used Roundup brand. And all allege Monsanto knew about, and covered up, the risks.

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

In the California trial that started today, Kathleen Caballero alleges that she developed non-Hodgkin lymphoma after spraying Roundup from 1977 to 2018 as part of her work at a gardening and landscaping business, and in her operation of a farm.

In the trial set to start Tuesday in St. Louis, there are four plaintiffs- Christopher Wade, Glen Ashelman, Bryce Batiste and Ann Meeks.

A third trial is also set for this month in Riverside County Superior Court. That case was brought by Treesa Cotton, a woman who was diagnosed with non-Hodgkin lymphoma in 2015 that she blames on exposure to Monsanto’s Roundup.

St. Louis Monsanto Roundup Trial Postponed, Bayer stock climbs

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A highly anticipated Roundup cancer trial set to start later this month in the St. Louis area has been pulled from the docket, a court official said on Wednesday.

The trial, which was to pit a woman named Sharlean Gordon against Roundup maker Monsanto Co., was to start Jan. 27 in St. Louis County and was to be broadcast to the public. Notably, Gordon’s lawyers planned to put former Monsanto CEO Hugh Grant on the stand. St. Louis was the home of Monsanto’s corporate headquarters until the company was purchased by Bayer AG of Germany in June of 2018.

In taking the trial off the calendar, the judge in the case has ordered that a status conference be set for a month from now, said St. Louis County Court spokeswoman Christine Bertelson.

The Gordon trial was already postponed once – it originally was scheduled for August. It is one of several trials that have been postponed in the last several months as Bayer attempts to find a settlement to the mass of claims filed against Monsanto by people stricken with non-Hodgkin lymphoma they claim was caused by exposure to Monsanto Roundup and other glyphosate-based herbicides. Bayer officials have said that Monsanto is facing more than 42,700 plaintiffs in the United States.

Gordon developed non-Hodgkin lymphoma after using Roundup herbicides for 25 years at her residence in South Pekin, Illinois, and has suffered extensive debilitation due to her disease. Gordon’s stepfather, who also used Roundup at the family home, died of cancer.  The case  is actually derived from a larger case filed in July 2017 on behalf of more than 75 plaintiffs. Gordon was to be the first of that group to go to trial.

Monsanto and Bayer have denied that Monsanto’s herbicides can cause cancer, and assert the litigation is without merit but is being fueled by greedy plaintiffs’ attorneys.

According to sources close to the litigation, discussions are underway to postpone more Roundup cancer trials, possibly including one set to start January 21 in St. Louis City Court. Attorneys for Monsanto and for the plaintiffs in the upcoming January trials declined to comment.

Shares in Bayer hit a 52-week high and were up close to 3 percent Wednesday. Investors have been pushing the company to find a way to avoid future trials and to settle the litigation.

In the three Roundup cancer trials held so far, unanimous juries have found that exposure to Monsanto’s herbicides does cause non-Hodgkin lymphoma and that the company covered up the risks and failed to warn consumers. The three juries awarded a total of four plaintiffs more than $2 billion in damages, but the trial judges in each case have reduced the awards significantly.

No damages have yet been paid as Monsanto appeals the verdicts.

Bayer’s annual shareholders’ meeting is set for April 28 and analysts said investors would like to see either a settlement of the litigation by that time, or at least meaningful progress in containing the liability. Bayer’s stock took a dive, losing billions of dollars in value, after the first jury verdict in August 2018, and share prices remain depressed.

Attorney for Roundup Cancer Plaintiffs Arrested on Criminal Charges

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The legal drama surrounding the mass tort Roundup cancer litigation just got ratcheted up a notch.

Federal criminal charges were filed this week against attorney Timothy Litzenburg alleging the 37-year-old lawyer demanded $200 million in “consulting fees” in exchange for keeping quiet about information that he threatened would be potentially devastating to a chemical compound supplier to Monsanto.

Litzenburg was charged with one count each of attempted extortion, conspiracy and transmission of interstate communications with intent to extort. He was arrested Tuesday but has been released on bond.

Litzenburg was the attorney 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 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 been responsible for preparing 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 alleging Litzenburg engaged in self-dealing, and “disloyal and erratic conduct.” Litzenburg responded with a counter-claim. The parties recently negotiated a confidential settlement.

The new trouble for Litzenburg came in the form of a criminal complaint filed Monday in federal court in Virginia. The complaint does not name the company Litzenburg was demanding money from, referring  to it as “Company 1.”  According to the charges, Litzenburg contacted Company 1 in September of this year stating that he was preparing a lawsuit that would allege Company 1 and related companies supplied chemical compounds used by Monsanto to create its branded Roundup herbicide and that Company 1 knew the ingredients were carcinogenic but had failed to warn the public. He also attempted to involve an entity referred to in the complaint as Company 2, described by prosecutors as a U.S.  publicly traded company that bought Company 1 in 2018.

Earlier this year Litzenburg  told US Right to Know that he was drafting such a complaint against chemical supplier Huntsman International  and related entities, but it is not clear if Huntsman is involved in this action.

Litzenburg, who is now a partner with the firm of Kincheloe, Litzenburg & Pendleton, did not respond to a request for comment. Neither did his law partner Dan Kincheloe.  Litzenburg has claimed to be representing roughly 1,000 clients suing Monsanto over Roundup cancer causation allegations.

According to the complaint, Litzenburg told a lawyer for Company 1 that he believed if he filed an initial lawsuit many more would follow. To prevent that, Company 1 could enter into a “consulting arrangement” with Litzenburg, the lawyer allegedly told the company. As a consultant Litzenburg would have a conflict of interest that would prevent him from filing the threatened litigation.

According to information the complaint states was provided by an attorney for Company 1, Litzenburg said he would need a $5 million settlement of the drafted lawsuit and a consulting arrangement for $200 million for himself and an associate.  The criminal complaint states that Litzenburg put the terms of his demand in writing in an email to the company attorney, warning that if the company did not comply, Litzenburg would create “Roundup Two,” which would cause “an ongoing and exponentially growing problem” for Company 1.

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. At least two such “associates” were involved in the scheme, according to the complaint.

The attorney for Company 1 contacted the U.S. Department of Justice in October and investigators subsequently recorded a phone call with Litzenburg discussing the $200 million he was seeking, the complaint states.

According to the complaint, Litzenburg was 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…”

During other communications with Company 1, Litzenburg allegedly said that if he received the $200 million, he was willing to “take a dive” during a civil deposition of a Company 1 toxicologist to undermine the prospects for future plaintiffs to try to sue the company.

If Company 1 entered into a deal with him, Litzenburg allegedly said, it would mean Company 1 would “avoid the parade of horribles that has been the Roundup litigation for Bayer/Monsanto.”

Prosecuting the case for the U.S. Department of Justice are Assistant Chief L. Rush Atkinson and Principal Assistant Chief Henry P. Van Dyck of the Criminal Division’s Fraud Section.

Six Monsanto Roundup Cancer Trials Set for January

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After several months out of the headlines, lawyers for both sides of the nationwide Roundup cancer litigation are gearing up for overlapping trials in the new year as several more cancer patients seek to blame Monsanto for their diseases.

Six trials are currently set to take place starting in January, with one in February, two in March and additional trials scheduled almost every month from April through October 2021. Thousands of additional plaintiffs still are working to get trial dates set for their claims.

The plaintiffs in the upcoming January trials include two children who were stricken by non-Hodgkin lymphoma allegedly after being repeatedly exposed to Monsanto herbicides at very young ages. Also set for January is the trial for a woman named Sharlean Gordon who has suffered several debilitating recurrences of her cancer. Another trial will present the claims of five plaintiffs who claim Monsanto’s herbicides caused their cancers.

Notably, two of the trials in January will take place in the St. Louis, Missouri area – where Monsanto was headquartered for decades before its acquisition in June 2018 by Germany’s Bayer AG. Those two trials will be the first to go before jurors in Monsanto’s home town. Gordon’s case was supposed to go to trial in the area last August but was postponed, as were others set for the second half of 2019, as Bayer and plaintiffs’ attorneys initiated settlement talks.

It is still possible that some sort of settlement – individual case-specific, or larger – could happen before January, but the lawyers on both sides are preparing for a schedule that presents numerous logistical challenges. Each trial is expected to last several weeks, and not only are some lawyers involved in trying cases with overlapping trial schedules, but a small group of expert witnesses will be testifying in multiple cases taking place at the same time.

Three trials have taken place so far  in the sprawling mass tort litigation, which began in 2015 after the International Agency for Research on Cancer (IARC) classified a chemical called glyphosate as a probable human carcinogen with a particular association to non-Hodgkin lymphoma. Since the 1970s, glyphosate has been the active ingredient in Monsanto branded herbicides, and is currently considered the most widely used herbicide in the world.

Plaintiffs’ attorneys say that the current line-up of cases represent even stronger claims for damages than the prior three trials.  “These are very strong cases,” said lawyer Aimee Wagstaff, who represents Gordon. In March, Wagstaff client Edwin Hardeman won an $80 million jury verdict from a San Francisco jury in his lawsuit against Monsanto.

For the Gordon case, Wagstaff has subpoenaed former Monsanto chairman Hugh Grant to testify live at the trial. Grant has thus far only testified through deposition and not had to testify in front of a jury; nor have other high-level Monsanto executives because the trials were held in California. But with the trial in St. Louis, plaintiffs’ lawyers are hoping to get some Monsanto scientists and executives on the stand for questioning. Grant’s attorneys have objected the making him appear in person, and both sides are awaiting a ruling on that matter.

In the most recent trial to take place, a jury in Oakland, California ordered Monsanto to pay more than $2 billion in damages to Alberta and Alva Pilliod, a married couple who both suffer from NHL they blame on exposure to Roundup.  The first trial ended in August 2018 when jurors in state court in San Francisco ordered Monsanto to pay $289 million  in damages to school groundskeeper Dewayne “Lee” Johnson, who has been diagnosed with a terminal type of non-Hodgkin lymphoma.  The judges in all three of those cases ruled that the awards were excessive and reduced the damage amounts, though the verdicts are currently under appeal.

More than 42,000 people  in the United States are now suing Monsanto claiming that Roundup and other Monsanto’s herbicides cause non-Hodgkin lymphoma. The lawsuits allege that the company was well aware of the dangers for many years but did nothing to warn consumers, working instead to manipulate the scientific record to protect company sales.

Internal FDA Emails: Weedkiller Found in Granola and Crackers

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This article was originally published in the Guardian.

By Carey Gillam

US government scientists have detected a weedkiller linked to cancer in an array of commonly consumed foods, emails obtained through a freedom of information request show.

The Food and Drug Administration (FDA) has been testing food samples for residues of glyphosate, the active ingredient in hundreds of widely used herbicide products, for two years, but has not yet released any official results.

But the internal documents obtained by the Guardian show the FDA has had trouble finding any food that does not carry traces of the pesticide.

“I have brought wheat crackers, granola cereal and corn meal from home and there’s a fair amount in all of them,” FDA chemist Richard Thompson wrote to colleagues in an email last year regarding glyphosate. Thompson, who is based in an FDA regional laboratory in Arkansas, wrote that broccoli was the only food he had “on hand” that he found to be glyphosate-free.

That internal FDA email, dated January 2017, is part of a string of FDA communications that detail agency efforts to ascertain how much of the popular weedkiller is showing up in American food. The tests mark the agency’s first-ever such examination.

“People care about what contaminants are in their food. If there is scientific information about these residues in the food, the FDA should release it,” said Tracey Woodruff, a professor in the University of California San Francisco School of Medicine. “It helps people make informed decisions. Taxpayers paid for the government to do this work, they should get to see the information.”

The FDA is charged with annually testing food samples for pesticide residues to monitor for illegally high residue levels. The fact that the agency only recently started testing for glyphosate, a chemical that has been used for over 40 years in food production, has led to criticism from consumer groups and the Government Accountability Office (GAO). Calls for testing grew after the International Agency for Research on Cancer (IARC) classified glyphosate as a probable human carcinogen in 2015.

Glyphosate is best known as the main ingredient in Monsanto Co’s Roundup brand. More than 200m pounds are used annually by US farmers on their fields. The weedkiller is sprayed directly over some crops, including corn, soybeans, wheat and oats. Many farmers also use it on fields before the growing season, including spinach growers and almond producers.

Thompson’s detection of glyphosate was made as he was validating his analytical methods, meaning those residues will probably not be included in any official report.

Separately, FDA chemist Narong Chamkasem found “over-the-tolerance” levels of glyphosate in corn, detected at 6.5 parts per million, an FDA email states. The legal limit is 5.0 ppm. An illegal level would normally be reported to the Environmental Protection Agency (EPA), but an FDA supervisor wrote to an EPA official that the corn was not considered an “official sample”.

When asked about the emails and the agency’s testing, an FDA spokesman said only that the FDA had not found any illegal levels in corn, soy, milk or eggs, the four commodities it considers part of its glyphosate “special assignment”. He did not address the unofficial findings revealed in the emails.

The FDA’s official findings should be released later this year or early in 2019 as part of its 2016 annual residue report. The reports typically are released two to two and a half years after the data is collected.

Along with glyphosate, the agency has been trying to measure residues of the herbicides 2,4-D and dicamba because of projected increased use of these weedkillers on new genetically engineered crops. The FDA spokesman said that the agency has “expanded capacity” for testing foods for those herbicides this year.

Other findings detailed in the FDA documents show that in 2016 Chamkasem found glyphosate in numerous samples of honey. Chamkasem also found glyphosate in oatmeal products. The FDA temporarily suspended testing after those findings, and Chamkasem’s lab was “reassigned to other programs”, the FDA documents show. The FDA has said those tests were not part of its official glyphosate residue assignment.

Pesticide exposure through diet is considered a potential health risk. Regulators, Monsanto and agrochemical industry interests say pesticide residues in food are not harmful if they are under legal limits. But many scientists dispute that, saying prolonged dietary exposure to combinations of pesticides can be harmful.

Toxicologist Linda Birnbaum, who is director of the US National Institute of Environmental Health Sciences (NIEHS), said that current regulatory analysis of pesticide dangers does not account for low levels of dietary exposures.

“Even with low levels of pesticides, we’re exposed to so many and we don’t count the fact that we have cumulative exposures,” Birnbaum said.

The US Department of Agriculture was to start its own testing of foods for glyphosate residues in 2017 but dropped the plan.

The lack of government residue data comes as Monsanto attempts to bar evidence about glyphosate food residues from being introduced in court where the company is fighting off allegations its Roundup products cause cancer.

In a case set for trial on 18 June, San Francisco superior court judge Curtis Karnow recently denied the company’s motion to keep the jury from hearing about residues in food. The judge said that although Monsanto worries the information “will inflame the jury against Monsanto based on their own fear that they may have been exposed”, such information “should not be excluded”.