Bayer’s plan for settling future Roundup cancer claims faces broad opposition

Print Email Share Tweet

Dozens of U.S. law firms have formed a coalition to fight a new $2 billion settlement proposal by Monsanto owner Bayer AG that aims to contain the company’s ongoing liability related to claims that Roundup herbicides cause a type of cancer known as non-Hodgkin lymphoma (NHL).

The settlement is designed to compensate people who have been exposed to Roundup products and either already have NHL or may develop NHL in the future, but who have not yet taken steps to file a lawsuit.

The small group of lawyers who put the plan together with Bayer say it will “save lives” and provide substantial benefits to people who believe they developed cancer from exposure to the company’s herbicide products.

But many lawyers criticizing the plan say if it is approved it would set a dangerous precedent for other types of litigation involving large numbers of people injured by the products or practices of powerful corporations.

“This is not the direction we want the civil justice system to go,” said attorney Gerald Singleton, whose firm has joined with more than 60 other law firms to oppose Bayer’s plan. “There is no scenario under which this is good for plaintiffs.”

Bayer’s settlement plan was filed with the U.S. District Court for the Northern District of California on Feb. 3, and must be approved by U.S. District Judge Vince Chhabria in order to become effective. A prior settlement plan submitted last year was scorned by Chhabria and then withdrawn. The judge has been overseeing the federal multidistrict Roundup litigation involving thousands of plaintiffs from around the United States.

Responses to the settlement plan are due March 3 and a hearing on the matter is set for March 31.

A key concern is that current Roundup users who may develop cancer and want to sue in the future will automatically be subject to terms of the class settlement unless they officially opt out of the settlement within a specific time period. One of the terms they would be subject to would bar them from seeking punitive damages in any future lawsuit.

Those terms and others laid out are wholly unfair to farm workers and others who are expected to develop cancer in the future from exposure to the company’s herbicide products, according to Singleton. The plan benefits Bayer and provides “blood money” to the four law firms that worked with Bayer to design the plan, he said.

Those firms working with Bayer to draft and administer the plan would receive a proposed $170 million if the plan takes effect.

Elizabeth Cabraser, one of the lawyers who crafted the new proposed settlement, said the criticism is not a fair description of the settlement. In truth, she said, the plan “provides significant and urgently-needed outreach, education, healthcare access, and compensation benefits” for people who have been exposed to Monsanto’s Roundup herbicides but have not yet developed non-Hodgkin lymphoma (NHL).

“We seek approval of this settlement because it will save lives and enhance quality of life through early diagnosis, assist people… inform them and raise public awareness about the link between Roundup and NHL…” she said.

A spokesman for Bayer did not respond to a request for comment.

The new proposed settlement is aimed at future cases and is separate from the $11 billion Bayer has earmarked to settle existing U.S. Roundup cancer claims. The people impacted by the class settlement proposal are only individuals who have been exposed to Roundup but are not yet in litigation and have taken no steps toward any litigation.

Bayer has been struggling to figure out how to put an end to the Roundup cancer litigation since buying Monsanto in 2018. The company lost all three trials held to date and lost the early rounds of appeals seeking to overturn the trial losses.

Juries in each of the trials found not only that Monsanto’s glyphosate-based herbicides cause cancer but also that Monsanto spent decades hiding the risks.

Though the proposed settlement states that it “addresses the four concerns the Court raised regarding the prior, withdrawn settlement,” Singleton and other lawyers involved in the opposition said the new settlement proposal is just as bad as the first.

In addition to the concerns that class members would not have the right to seek claims for punitive damages, the critics also object to the four-year “standstill” period blocking the filing of new lawsuits. The critics also say the plan for notifying people of the class settlement is not sufficient. Individuals would have 150 days following the notification to “opt out” of the class. If they do not opt out, they are automatically in the class.

Critics also object to the proposed formation of a science panel that would act as a “guidepost” for an “extension of compensation options into the future” and to provide evidence about the carcinogenicity – or not – of Bayer’s herbicides.  Given Monsanto’s documented history of manipulating scientific findings, the science panel work would be suspect, said Singleton.

The initial settlement period would run for at least four years and could be extended after that period.  If Bayer elects not to continue the compensation fund after the initial settlement period, it will pay an additional $200 million as an “end payment” into the compensation fund, the settlement summary states.

“Substantial compensation” offered

The law firms that drafted the agreement with Bayer said in their filing to the court that the settlement is structured to provide potential future plaintiffs with “what most serves their interests,” including an option for “substantial compensation” if they develop non-Hodgkin lymphoma.

The plan calls for the establishment of a compensation fund to make awards of between $10,000 and $200,000 per individual class member. “Accelerated Payment Awards” of $5,000 would be available on an expedited basis, requiring just a showing of exposure and diagnosis.

Those people first exposed to Roundup products at least 12 months prior to their diagnosis would be qualified for awards. Awards of  more than $200,000 could be made for “extraordinary circumstances.” Those qualified class members who were diagnosed with NHL before January 1, 2015, would not receive awards more than $10,000, according to the plan. 

The settlement would provide free legal advice and provide ”support to assist class members in navigating, registering, and applying for Settlement benefits.”

Additionally, the proposal states that the settlement will fund medical and scientific research into the diagnosis and treatment of NHL.

Notably, the plan states that no one will lose their right to sue unless they choose to accept compensation from the compensation fund, and no one needs to make that choice until that individual class member is diagnosed with NHL. They would not be able to seek punitive damages but could seek other compensation.

“Any class members who do not file a claim and accept individual compensation retain their right to sue Monsanto for compensatory damages on any legal theory, including personal injury, fraud, misrepresentation, negligence, fraudulent concealment, negligent misrepresentation, breach of warranty, false advertising, and violation of any consumer protection or unfair and deceptive acts or practices statute,” the plan states.

To alert people to the class action settlement, notices would be mailed/emailed to 266,000 farms, businesses and organizations and government entities where the company’s herbicides could have been used as well as to 41,000 people who have non-Hodgkin lymphoma and asked to receive information about their disease. Additionally posters would be mailed to 2,700 stores asking them to post notices of the class action settlement.

As part of the proposed settlement, Bayer said it would seek permission from the Environmental Protection Agency (EPA) to add information on the labels of its glyphosate-based products such as Roundup that would provide links to access to scientific studies and other information about glyphosate safety. But critics say providing a website links is inadequate and Bayer needs to put a straightforward warning of cancer risk on the weed killing products.

The proposed class action settlement threatens to affect “hundreds of thousands or even millions” of people who have been exposed to Roundup and “raises ‘unique’ and profound questions” under the U.S. Constitution, according to a court filing in opposition to the Bayer plan made by plaintiffs’ lawyer Elizabeth Graham.

Graham told the court that if the plan is approved it could have a “dramatic effect not only on this litigation, but on the future of mass tort litigation.”

Black farmers

 The National Black Farmers Association (NBFA) weighed in on the issue on Wednesday, submitting a lengthy filing with Chhabria’s court that states a “substantial proportion” of its more than 100,000 members “have been exposed to and potentially injured by Roundup, and its active ingredient glyphosate.”

Many of the farmers have already developed non-Hodgkin’s lymphoma they blame on Roundup use, and “an even larger proportion fear that they will soon develop symptoms,” the NBFA filing states.

The NBFA wants to see Roundup products removed from commerce or other changes made to protect farmers, the filing states.

The concerns of the NBFA need to be addressed by the court, particularly as Bayer looks to “settle a class action with a set of attorneys who purport to be representing the future interests of all farmers who have been exposed to Roundup but are yet to develop the cancers it causes.”

Lawsuits in Australia

As Bayer works to bring an end to Roundup litigation in the United States, the company is also dealing with similar claims by farmers and others in Australia. A class action filed against Monsanto is underway, and the lead plaintiff John Fenton, who applied Roundup as part of farm work. Fenton was diagnosed with non-Hodgkin lymphoma in 2008.

A series of key dates have been established: Monsanto has until March 1 to provide discovery documents to plaintiffs’ lawyers and June 4 is the deadline set for the exchange of expert evidence.  The parties are to enter into mediation by July 30 and if nothing is resolved the case would go to trial in March 2022.

Fenton said while he would “love the opportunity” to go to trial and tell his story, he hopes mediation will resolve the matter. “I think the consensus is starting to change thanks to what has been happening in the US. Farmers are more aware and I believe they do take more precautions than they used to.

Fenton said he hopes that Bayer ultimately will put a warning label on Monsanto’s glyphosate herbicides.

“At least with a warning the user can make up their own mind about what PPE (personal protective equipment) they choose to wear.”

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

Print Email Share Tweet

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

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

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

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

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

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

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

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

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

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

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

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

Court frowns on Bayer’s proposed Roundup class-action settlement

Print Email Share Tweet

A federal judge on Monday had harsh words for Bayer AG’s plan to delay potential future Roundup cancer lawsuits and block jury trials, criticizing the highly unusual proposal crafted by Bayer and a small group of plaintiffs’ attorneys as potentially unconstitutional.

The “Court is skeptical of the propriety and fairness of the proposed settlement, and is tentatively inclined to deny the motion,” reads the preliminary order issued by Judge Vince Chhabria of the U.S. District Court for the Northern District of California. The judge’s position appears to be a sharp blow to Bayer and the company’s efforts to resolve a legacy of litigation attached to Monsanto, which Bayer bought two years ago.

More than 100,000 people in the United States claim exposure to Monsanto’s glyphosate-based Roundup herbicides caused them to develop non-Hodgkin lymphoma (NHL) and that Monsanto long knew about and covered up the cancer risks.

Three jury trials have been held in the last two years and Monsanto lost all three with juries awarding more than $2 billion in damages. All the cases are now on appeal and Bayer has been scrambling to avoid future jury trials.

Last month Bayer said it had reached agreements to settle the majority of lawsuits currently filed and had crafted a plan for handling cases that likely would be filed in the future. To handle the current litigation Bayer said it will pay up to $9.6 billion to resolve roughly 75 percent of the current claims and will continue working to settle the rest.

In the plan for handling potential future cases, Bayer said it was working with a small group of plaintiffs’  attorneys who stand to make more than $150 million in fees in exchange for agreeing to a four-year “standstill” in filing cases. This plan would apply to people who may be diagnosed in the future with NHL they believe is due to Roundup exposure. In contrast to Monsanto’s settlement of the pending cases against it, settlement of this new “futures” class action requires court approval.

In addition to delaying more trials, the deal calls for the establishment of a five-member “science panel” that would take any future findings on cancer claims out of the hands of  juries. Instead, a “Class Science Panel” would be established to determine whether Roundup can cause non-Hodgkin lymphoma, and if so, at what minimum exposure levels.  Bayer would get to appoint two of the five panel members. If the panel determined there was no causal connection between Roundup and non-Hodgkin lymphoma then the class members would be barred from future such claims.

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

The plan requires the approval of Judge Chhabria, but the order issued Monday indicated he does not plan to grant approval.

“In an area where the science may be evolving, how could it be appropriate to lock in a
decision from a panel of scientists for all future cases?” the judge asked in his order.

The judge said he will hold a hearing on July 24 on the motion for preliminary approval of the class action settlement. “Given the Court’s current skepticism, it could be contrary to everyone’s interest to delay the hearing on preliminary approval,” he wrote in his order.

Below is an excerpt of the judge’s order:

EPA thumbs nose at court order, says farmers can still use illegal dicamba herbicides

Print Email Share Tweet

(UPDATES with comment from BASF)

The Environmental Protection Agency on Monday declared it would not immediately honor a court ruling handed down last week that banned certain herbicides made by three of the world’s largest chemical companies.

The move by the EPA amounts to a generous gift to BASF, Bayer and Corteva Agrisciences whose dicamba herbicides were deemed by the court to have been approved by the EPA illegally. The court specifically said in its order issued last week 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.

But the EPA announced Monday that it was issuing a “cancellation order” that would give farmers until July 31 to use existing stocks of Bayer’s Xtendimax, BASF’s Engenia, and Corteva’s FeXapan.

The ruling by the U.S. Court of Appeals for the Ninth Circuit found that the EPA made multiple errors in approving the dicamba products and came in response to a petition brought by the National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity, and Pesticide Action Network North America.

The Center for Food Safety (CFS), whose lawyers argued the case for petitioners, said in a statement that the EPA’s action was “disingenuous” and “ignores the well-documented and overwhelming evidence of substantial drift harm to farmers from another disastrous spraying season.” The EPA action also ignores the risks dicamba poses to hundreds of endangered species, CFS said.

“The Trump administration is again showing it has no regard for the rule of law. All users that continue to not seek alternatives should be on notice that they are using a harmful, defective, and unlawful product. We will bring the EPA’s failure to abide by the Court’s order to the Court as expeditiously as possible,” CFS said.

U.S. Secretary of Agriculture Sonny Perdue last week urged the EPA to figure out a way around the court ruling, echoing comments by Bayer, BASF and Corteva that called dicamba herbicides important “tools” for farmers growing genetically engineered soybean and cotton.

The EPA said in deciding to allow farmers to continue to use dicamba through the end of July it was responding to “numerous unsolicited phone calls and emails” telling the agency “there is a real concern and potential for devastation to cotton and soybean crops that could result in a crisis for the industry.”

The EPA did not acknowledge the scores of farmers growing crops other than dicamba-tolerant soybeans and cotton who have suffered crop losses from dicamba drift and fear another summer of crop damage.

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, which was bought by Bayer in 2018, 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 the 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.

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 were proven false amid widespread complaints of dicamba drift damage in recent years. More than one million acres of dicamba crop damage was reported last year in 18 states, the court noted.

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.

In a statement issued after the EPA announcement, BASF  said it supported the EPA’s decision to allow the continued use of existing stocks of BASF’s Engenia herbicide through July 31, but said “additional clarity and flexibility” was required.  The company said it had immediately suspended selling and shipping Engenia herbicide after last week’s ruling. 

The company said it  will continue to pursue re-registration of Engenia with the EPA and is assessing its options to pursue legal remedies to challenge the court order.