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

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

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

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

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

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

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

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

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

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

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

80 hours

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

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

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

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

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

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

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

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

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

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

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

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

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

See transcript of closing arguments in Clark v. Monsanto. 

Bayer seeks U.S. Supreme Court review of Roundup trial loss

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Monsanto owner Bayer AG on Monday filed a petition with the U.S. Supreme Court, seeking the high court’s review of one of its trial losses in the nationwide Roundup cancer litigation.

The move is widely seen as Bayer’s best hope for putting an end to claims that exposure to Monsanto’s glyphosate-based herbicides, such as the popular Roundup brand, cause non-Hodgkin lymphoma, and the company failed to warn users of the risks. The company has thus far lost three out of three trials, and there are currently more than 100,000 existing plaintiffs as well as many more potential future plaintiffs expected to bring similar claims. Bayer has been trying to settle the cases and come up with a plan to limit, block or settle future claims.

Bayer’s writ of certiorari asks the court to review the Ninth Circuit Court of Appeals’ decision in the case of Hardeman v. Monsanto. 

During the month-long trial in 2019, lawyers for plaintiff Edwin Hardeman presented jurors with a range of scientific research showing cancer connections to Monsanto’s herbicides as well as evidence of many Monsanto strategies aimed at suppressing the scientific information about the risks of its products. Internal Monsanto documents showed the company’s scientists had engaged in secretly ghost-writing scientific papers that the company then used to help convince regulators of product safety.

The plaintiffs’ attorneys argued that Monsanto should have warned consumers about the risks that its products could cause cancer. Lawyers in the other trials Monsanto lost presented similar arguments and evidence of cancer risk.

FIFRA fight

Bayer has said it hopes the Supreme Court will agree with Bayer’s position that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), which governs the registration, distribution, sale, and use of pesticides in the United States, preempts those “failure-to-warn” claims that are central to the Roundup lawsuits. Because the Environmental Protection Agency (EPA) has approved labels with no cancer warning, the failure-to-warn claims should be barred, the company maintains.

The petition filed Monday urges the Supreme Court to review the Ninth Circuit Court of Appeals’ decision upholding the Hardeman trial loss on the grounds that FIFRA preempts a state-law failure to-warn claim “where the warning cannot be added to a product without EPA approval and EPA has repeatedly concluded that the warning is not appropriate.”

The petition also asks the court to address whether or not the Ninth Circuit’s standard for admitting expert testimony “is inconsistent with this Court’s precedent and Federal Rule of Evidence 702.” Bayer argues that the admission of expert testimony in the Hardeman case “departed from federal standards, enabling plaintiff’s causation witnesses to provide unsupported testimony on the principal issue in the case, Roundup’s safety profile.”

In its petition, Bayer argues: “The Ninth Circuit’s errors mean that a company can be severely punished for marketing a product without a cancer warning when the near-universal scientific and regulatory consensus is that the product does not cause cancer, and the responsible federal agency has forbidden such a warning.”

Hardeman lawyer Aimee Wagstaff said her legal team had been preparing for Bayer’s bid for Supreme Court review.

“While paying out billions of dollars to settle claims, Monsanto continues to refuse to pay Mr. Hardeman’s verdict.  That doesn’t seem fair to Mr. Hardeman.  Even so, this is Monsanto’s last chance Hail Mary,” Wagstaff said. “We are eager and ready to beat Monsanto at the Supreme Court and put this baseless preemption defense behind us once and for all.”

Bayer cites broad impact

The petition states that the decision in the Hardeman case, which was part of the multidistrict litigation handled in federal court, will “undoubtedly influence still others pending across the country.”

Bayer said in a statement: “The Petition underscores that consistent regulatory assessments in the U.S. and worldwide, and the overwhelming weight of scientific evidence, support the conclusion that glyphosate-based herbicides are safe and not carcinogenic. In light of the EPA’s approval of the Roundup label without a cancer warning, any state-law failure-to-warn claims premised on such warning would plainly conflict with federal law and thus are preempted. Courts across the U.S. have divided on this basic question of when federal law preempts state law, which makes review by the U.S. Supreme Court both important and necessary. Indeed, it has been 16 years since the Supreme Court ruled on FIFRA preemption, and the prior case did not involve a warning that EPA had rejected.”

Lawyers for Hardeman did not respond to a request for comment.

Bayer has so far said it has earmarked more than $16 billion toward settling the Roundup litigation.

Elderly woman to take on Monsanto in next trial over cancer claims

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An elderly California woman who was a regular user of Monsanto’s Roundup weed killer for more than 30 years is set as the next person to try to prove that exposure to the chemical causes non-Hodgkin lymphoma, a claim already won by plaintiffs in three previous trials.

The case of Donnetta Stephens v. Monsanto is set for trial July 19 in San Bernardino County Superior Court in California. Stephens from Yucaipa, California was diagnosed with non-Hodgkin lymphoma (NHL) in 2017 and has suffered from numerous health complications amid multiple rounds of chemotherapy since then. Because of her poor health,  a judge in December granted Stephens a trial “preference,” meaning her case was expedited, after her lawyers informed the court that Stephens is “in a perpetual state of pain,” and losing cognition and memory.

Several other cases have either already been granted preference trial dates or are seeking trial dates for other plaintiffs, including at least two children, suffering from NHL the plaintiffs allege was caused by exposure to Roundup products.

Monsanto was purchased by Bayer AG in 2018 and is no longer a stand-alone company but is the named defendant in ongoing litigation, which began in 2015 after cancer experts consulted by a unit of the World Health Organization determined glyphosate, the active ingredient in Monsanto’s  Roundup, is a probable human carcinogen with a particular association to NHL.

Some old evidence, some new

The Stephens case is expected to involve many of the same expert witnesses and same documents and deposition testimony that helped plaintiffs win the prior trials, said Stephens’ lawyer Fletch Trammell. Two new experts who have not testified previously in Roundup trials will be called, however, said Trammell. They are Barry Boyd, an oncologist from Yale Cancer Center, and Luoping Zhang, an adjunct professor of toxicology at the School of Public Health at the University of California, Berkeley.

Zhang is the lead author of a meta-analysis published in 2019 that determined research showed “a compelling link” between exposures to glyphosate-based herbicides, such as Roundup, and increased risk for NHL.  The analysis found that people with high exposures to the popular pesticides have a 41 percent increased risk of developing NHL.

Monsanto has long maintained that there is no legitimate scientific research showing a definitive association between glyphosate and NHL or any type of cancer. A 2020 meta-analysis could be useful to  Monsanto’s defense. That report concluded that there is “no overall evidence of an increased risk” for NHL “in subjects occupationally exposed to glyphosate.”

The Environmental Protection Agency has supported the safety of glyphosate products, saying the agency’s analysis of scientific evidence shows the chemical is “not likely” to cause cancer.

The company claims the scientists with the International Agency for Research on Cancer (IARC),  who classified glyphosate as a probable human carcinogen, engaged in improper conduct and failed to give adequate weight to several important studies.

But the juries in the three prior trials found the evidence so overwhelming in favor of plaintiffs that they awarded the plaintiff in the first trial $289 million; the plaintiff in the second trial $80 million; and more than $2 billion to the husband-and-wife plaintiffs in the third trial. All the awards were reduced sharply by judges involved in the cases but the verdicts assigning blame to Monsanto for the cancers have not been overturned.

Bayer settlement issues

Bayer said last year that it had agreed to pay close to $11 billion to settle close to 100,000 Roundup cancer claims, but many law firms have dismissed the individual offers for their clients as insufficient, and they continue to press for more trials.

Additionally, Bayer has thus far failed to get court approval for varying proposals to try to create a class action settlement program for people who bring cancer claims in the future. After a stinging rebuke of its plans issued last month by a federal judge overseeing much of the litigation, Bayer said it is now considering pulling Roundup products from the U.S. market for residential users, though not from farm use.

There are thousands of plaintiffs still awaiting either settlement offers or trial settings, and as they wait, the deaths mount. Another woman who was granted a trial preference in a December court order, died only a month later, in January. 

The last trial held concluded in May 2019. Since then several other trials have been scheduled but Monsanto settled each case before the trials started.

Trammell said so far Monsanto has not made any settlement offer for the Stephens case and has made only what he called “nuisance value” five-figure offers for other clients he represents.

“She used Roundup for over 30 years, and had heavy exposure,” Trammell said of Stephens. “There is no non-Hodgkin anywhere in her family tree.  They are rolling out the same defenses and I think they’re going to lose on the same grounds.”

According to court filings, Stephens health has deteriorated significantly in the last year:

“The pain and weakness Ms. Stephens experiences in her feet and legs cause her to stumble and fall frequently, and she relies on her husband to walk behind her in case she should fall. Id. Because of this pain and weakness, Ms. Stephens is no longer able to drive a car. Ms. Stephens also suffers from
severe vertigo and very regularly passes out due to the intense dizziness she experiences. 
Formerly, Ms. Stephens was an active individual who loved to tend to her neighbors’ gardens.
Now, she can barely walk and must use a cane or walker to support herself.  Her physician
has informed her that she will need a wheelchair in the near future. Using her own word, Ms.
Stephens describes the pain she experiences as though she is getting shot through with electricity.
As this description reflects, the pain Ms. Stephens experiences is relentless, unabated, and all-consuming, causing this once former active individual to live her life in a perpetual state of fear of undertaking the simple task of movement.”

Bayer did not respond to a request for comment.

The case is Stephens v. Monsanto CIVSB2104801 in the Superior Court of California – County of San Bernardino.

Key Court Hearing Wednesday in Bayer Cancer Liability Litigation

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(UPDATED May 18 with pretrial order)

As Bayer AG works to put an end to costly litigation over alleged connections between Roundup herbicide and cancer, the company faces a critical hearing on Wednesday in federal court in San Francisco.

At issue in the hearing is a proposed $2 billion class action settlement structured by Bayer in coordination with a small team of plaintiffs’ lawyers as a means to address potential future lawsuits.

Proponents of the proposed class action plan say it “will save lives,” and provide “speedy compensation” to people who get NHL.

But the plan has generated widespread opposition from law firms around the country who say the proposal actually does little for cancer patients while benefiting Bayer and the lawyers who structured the proposal and who will be paid millions of dollars in fees if the plan goes through.

The class action settlement would apply to people exposed to Roundup products as of Feb. 3, 2021 who have not yet sued Monsanto or retained a lawyer to do so. The settlement plan would set up a framework for addressing new claims brought by those exposed individuals who develop non-Hodgkin lymphoma (NHL) they attribute to their Roundup exposure.

The class action plan, which is separate from an $11 billion settlement of Roundup litigation announced by Bayer last June to address already filed lawsuits, needs approval from U.S. District Judge Vince Chhabria.  A prior class action 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.

On Tuesday, Judge Chhabria issued a pretrial order stating that Wednesday’s hearing “will focus on big-picture concerns” with the proposed settlement.

Bayer bought Monsanto in 2018 and has been struggling ever since to defend the line of glyphosate-based herbicide products such as Roundup that Bayer inherited in the acquisition. Cancer victims have won three trials held to date and tens of thousands of other plaintiffs have filed lawsuits alleging exposure to Monsanto’s herbicides caused them to develop non-Hodgkin lymphoma while Monsanto spent decades hiding the risks.

A “Big Prize”

Likening the class action settlement proposal to a “carnival barker hawking a ‘big prize,’” veteran consumer attorney Gerson Smoger told the court in a recent filing: “This is not merely an unfair deal.  It is a deal designed to allow Monsanto to poison future generations. Monsanto knows it can only do this if it can put shackles on our system of justice. After four attempts, it should be clear that this proposed settlement cannot be remedied. This Court should deny preliminary approval and end this exercise in allowing a corporation to buy its own justice system.”

Smoger is one of more than 160 lawyers from more than 90 law firms who have notified the court they object to the proposed class action settlement, which has been rewritten multiple times already to try to appease objections.

At the heart of the objections is the view that if approved, the class action plan could limit the due process rights of people to go to trial and seek punitive damages awards in the future if they are diagnosed with NHL after Roundup exposure, while allowing Bayer to keep selling Roundup products with no express warning of a cancer risk on the label.

The limiting of plaintiffs’ ability to seek punitive damages while not limiting Bayer’s ability to keep selling Roundup distinguishes this settlement from any similar class action, according to an opposition brief filed by the nonprofit legal group Public Justice. The plan is a “blueprint for how manufacturers can cut off victims’ rights to seek punitive damages from injuries caused by hazardous pesticides, the group said.

“Importantly, there has never been a release of punitive damages in a class action settlement involving a hazardous product that was still on the market. If this Court approves this Settlement, it would be the first time that has ever happened in the history of American jurisprudence,” the Public Justice brief states.

The critics also object to the proposed formation of a science panel designed to provide evidence about whether or not the company’s glyphosate-based herbicides actually are carcinogenic, a four-year stay of future litigation, and many other components of the plan.

Proponents Cite Plan Benefits

The legal team pushing the class action settlement forward, counters that the plan actually is a good thing for people who may develop NHL in the future.

“This settlement will save lives. It will deliver notice, outreach, and information, including on the product label itself, to Roundup users—among them those overlooked by the tort system to date—that they may be at risk and should take action,” the proponents of the plan said in a court filing.

According to the class action settlement proponents, the plan will

  • Alert potential class members to be evaluated for NHL, and provide them diagnostic assistance to do so through a medical-monitoring program
  • Provide an option for “significant and speedy compensation” if a class member gets NHL
  • Provide access to free legal services
  • Fund research into treatment and diagnosis of NHL.
  • Allow class members the right to sue Monsanto for compensatory damages if the class member prefers

Judge Chhabria said in an order issued May 10 that along with hearing from the proponents of the plan, he will allow oral arguments from all those who have filed objections to the plan in Wednesday’s hearing.

In his pretrial order issued May 18, Chhabria said several questions would need to be addressed. Among the questions posed by the judge are these:

  • Why is it in the interest of the class to agree in advance to the admission in future trials of
    the conclusions of a court-appointed independent science panel, given how well the trials
    have been going for plaintiffs without such a panel?
  • If the Court understands the settlement correctly, it binds anyone exposed to Roundup
    before February 3, 2021 (assuming they do not opt out), but contemplates that the
    compensation fund and medical monitoring program can be terminated a few years after
    the settlement is approved. Why would it be in the interest of people exposed to Roundup
    before February 2021 to bind themselves to a fund and program that expires so quickly?
  • Is it appropriate to certify a class for settlement purposes when it is obvious that the class could never be certified for litigation purposes?

Paraquat litigation grows, first trial set for May 10

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Six more lawsuits alleging Syngenta’s weed killing pesticide paraquat causes Parkinson’s Disease were filed last week in Pennsylvania, California and Illinois, adding to more than a dozen similar lawsuits already filed in U.S. courts.

The lawsuits all allege that exposure to paraquat,  which is banned in more than 30 countries though not in the United States, causes the incurable and progressive Parkinson’s disorder that affects nerve cells in the brain, leading in advanced cases to severe physical debilitation and often dementia and death.

Many Parkinson’s experts say the disease can be caused by a range of factors, including exposure to pesticides such as paraquat, as well as other chemicals.

The first trial set to take place in the United States is to begin on May 10 in St. Clair County Circuit Court in Illinois. Missouri lawyer Steve Tillery  is representing the plaintiffs in Hoffman V. Syngenta and said he plans to introduce evidence that includes internal company records showing Syngenta has known for decades that its product causes Parkinson’s Disease.

The defendants in the Hoffman case, as well as the other cases filed, name the Swiss-based Syngenta and Chevron USA as defendants.

Both Chevron and Syngenta deny there is a connection between the disease and the weed killer.

Chevron distributed and sold paraquat products in the United States starting with an agreement with a Syngenta predecessor called Imperial Chemical Industries (ICI), which introduced a paraquat-based herbicide called Gramoxone in 1962. Under a license agreement, Chevron had the right to manufacture, use, and sell paraquat formulations in the U.S.

Syngenta says that its paraquat products have been approved as “safe and effective” for more than 50 years and it will “vigorously” defend the lawsuits. Syngenta is owned by China National Chemical Corporation, known as ChemChina.

The complaints were filed on April 30 by a team of law firms: DiCello Levitt Gutzler, Saltz Mongeluzzi & Bendesky, P.C. and  Searcy Denney.

Mark DiCello, one of the plaintiffs’ attorneys bringing the cases, said Chevron and Syngenta have “long known they were peddling this poison,” and that the science surrounding paraquat “is conclusively on the side of the plaintiffs.”

Jeffrey Goodman, another of the plaintiffs’ attorneys helping bring the litigation said the filings so far are but the “tip of the iceberg” of what he expects to expand into a major mass tort case.

“The manufacturers of paraquat knew for decades that their product was linked to Parkinson’s disease yet chose to hide this information from regulators and the public,” Goodman said.

The newly filed cases are:

The new cases join at least 14 lawsuits filed by eight different law firms in six different federal courts across the country.

Trial lawyers accuse Monsanto, Bayer of “pay-to-appeal scheme,” allege “fraud”

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The lawyers who led the nationwide U.S. Roundup litigation through three trial victories and forced Monsanto owner Bayer AG into an $11 billion settlement have notified a federal court that they have uncovered evidence of fraud in a secret deal between Monsanto and a lone plaintiff’s lawyer who has not been active in the litigation until recently.

In a series of filings made Thursday with the U.S. Court of Appeals for the 11th Circuit, lawyers from three firms involved in the three successful Roundup trials alerted the court to what they said was an effort by Monsanto to “buy” a favorable appellate court ruling.

The agreement between Monsanto and one plaintiff and his attorney is a “pay-to-appeal scheme,” according to plaintiffs’ lawyers Aimee Wagstaff, Brent Wisner and Jennifer Moore.  The legal team asks the court to dismiss the appeal they allege is the focus of the scheme.

The lawyer involved in cutting the deal with Monsanto is Ashleigh Madison of Southeast Law LLC in Savannah, Georgia.  Madison confirmed various terms of the arrangement with Monsanto to Wagstaff’s firm in an email and phone conversations recounted in a declaration, according to the filings made Thursday.

When contacted for comment, Madison denied the allegations and said her client’s best interests are her “top priority.” She said she looks “forward to further addressing the matter before a court of law, as our system of justice intends.”

Bayer, which bought Monsanto in 2018, also said the claims made by Wagstaff, Wisner and Moore are false.  The company issued a statement saying it has been “completely transparent about its desire to appeal Roundup failure-to-warn cases on federal preemption grounds,” and the deal with Madison and her client is “an appropriate path for such an appeal.”

Monsanto has lost all appeals associated with the first case that went to trial, Johnson v. Monsanto, and has appeals pending in the two subsequent trials it lost. Juries in the three trials found the company’s glyphosate-based weed killers such as Roundup caused non-Hodgkin lymphoma suffered by plaintiffs, and that Monsanto failed to warn of the risks.

The company’s primary hope at this point is to get a U.S. Supreme Court finding that the U.S. Environmental Protection Agency’s approval of its products, and stance that those products are not likely to cause cancer, essentially bars complaints that Monsanto didn’t warn of any cancer risk with its herbicides. Monsanto is asserting the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempts state laws and a duty to warn.

But a 2005 U.S. Supreme Court ruling in a case titled Bates v. Dow Agrosciences established that the EPA’s approval of a product does not rule out claims of a failure to warn brought under state law, and FIFRA expressly states that EPA approval doesn’t constitute an absolute defense. Citing the law and the precedent, more than a dozen federal and state courts have rejected the preemption argument, according to the filing submitted Thursday by the plaintiffs’ lawyers.

If Bayer can force one of the weaker cases to the U.S. Supreme Court and win on preemption, it would thwart the key claims brought by tens of thousands of plaintiffs and likely save Bayer from significant ongoing legal liability costs.

Georgia judge decision

At the heart of the matter is one case, that of Carson v. Monsanto, filed in 2017. The case alleged that plaintiff John Carson developed malignant fibrous histiocytoma (MFH) from exposure to Roundup. The legal team for the nationwide litigation point out in their filing this week that while there is robust scientific evidence associating Roundup exposure to NHL, there is a lack of scientific evidence associating Roundup to MFH, differentiating the case from the bulk of others filed against the company.

The case languished until Monsanto filed a motion with U.S. District Judge R. Stan Baker in Savannah, Georgia seeking a judgment in its favor on the issue of federal preemption. The district court judge found in favor of Monsanto, agreeing the Carson claim was preempted and the company had no duty to warn of a cancer risk. The judge ruled in favor of Carson, however, on claims that Monsanto was negligent and the design of Roundup products was defective.

Monsanto has since told Carson and his attorney to drop the claims they won on and appeal the preemption ruling they lost, according to the declaration filed by David Wool, a lawyer in the Andrus Wagstaff plaintiffs’ firm.

“Monsanto’s counsel, Martin Calhoun of Hollingsworth LLP, told Madison that Monsanto would never pay her client anything unless he appealed the District Court’s preemption decision – a decision that Monsanto won – and that Monsanto was offering to pay Carson money to appeal the decision,” the declaration states.

Monsanto agreed to pay Carson an undisclosed sum only if he will appeal the decision, according to the new court filing. If he does not drop the claims he won and appeal the preemption matter Monsanto has threatened to make him pay nearly $100,000 in legal fees and costs, according to information turned up by Wagstaff, Wisner and Moore’s law firms.

Carson is required by the deal to appeal only the preemption issue and no other elements of his claims, the legal challenge states:

“While Monsanto’s Civil Appeal Statement suggests it paid Carson to settle his claims not subject to this appeal, in truth, it did no such thing. Payment of the first sum was tied to noticing the appeal, not dismissal of any of Carson’s claims. Carson’s attorney openly admits that Monsanto would never pay Carson unless he appealed the district court’s preemption ruling and corroborated, in writing, that the settlement agreement requires Carson to appeal. If Carson does not appeal, he does not get paid. Indeed, his appeal is so central to getting paid that if he elects to not appeal, he is not only bereft of any settlement, but he is also subject to hefty  liquidated damages. Monsanto is paying Carson to appeal and then threatening him if he does not follow through.

“This appeal should be dismissed—any other result would set a dangerous precedent of appellate review being “for sale” to deep-pocketed litigants. This appeal should be dismissed—any other result would set a dangerous precedent of appellate review being “for sale” to deep-pocketed litigants.”

Allowing the Monsanto-manufactured appeal to go forward “risks turning the justice system on its head by allowing deep-pocketed parties to attempt to broaden the scope of favorable rulings they receive by coercing their adversaries to appeal. This Court’s decisions should not be for sale,” the plaintiffs’ team states in their filing. “This sort of judicial manipulation must be loudly and forcefully rejected.”

Monsanto “ulterior motives”

The declaration filed by Wool recounts conversations with Madison, Carson’s attorney. He states: “On March 15, 2021 I called attorney Ashleigh Madison. During the conversation, Madison confirmed her client’s settlement agreement with Monsanto in the Carson case, and stated that the “first payment” was triggered by filing a notice of appeal.  I expressed my concern that Monsanto had concocted this settlement agreement in an attempt to create favorable appellate law for itself. Madison confirmed that this was her understanding as well, stating that she believed Monsanto had “ulterior motives.”

According to Wool, Madison said her client had only a “very slim chance” of winning the appeal Monsanto was inducing them to file. Still, her client would obtain a “high” value from Monsanto, she told Wool, according to the declaration.

In their letter brief to the court, the trial lawyers said because Carson’s counsel admits that Monsanto is paying Carson to appeal a decision Monsanto won at in order to create appellate precedent, the case “warrants immediate dismissal.”

Litigants “cannot buy appellate review of decisions they won. The Court should reject this attempt to manipulate our judicial system and dismiss the appeal with prejudice because Carson and Monsanto are
deceiving the Court by claiming that an actual case or controversy exists when, in truth, this
appeal was bought and paid for by Monsanto,” they wrote. The Carson agreement “erodes the very foundation of our justice system, which is premised on the principle that opposing parties are actually adversarial—not paying each other to manufacture controversies and seek advisory opinions.”

Bayer said in its statement that the trio of trial lawyers are mischaracterizing the facts.

“Under the settlement, the company agreed to pay Carson $100,000 to drop the surviving design defect claims and to pursue the preemption ruling against him,” Bayer said in the statement. “If he succeeds in the appeal, he gets an additional substantial payment. If Carson drops the appeal, he would simply have to return the $100,000 settlement payment because he would be in breach of its terms. Thus, plaintiffs’ characterization of the $100,000 as a ‘penalty’ in a court filing is completely false, and nothing more than an effort to block this appeal on federal preemption grounds which threatens their interests in this litigation.”

Move to consolidate U.S. paraquat litigation as cases mount against Syngenta

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Lawyers suing Swiss chemical company Syngenta are asking a U.S. judicial panel to consolidate more than a dozen similar lawsuits under the oversight of a federal judge in California. The move is a telling sign of the expansion of litigation that alleges the company’s weed killing products cause Parkinson’s Disease.

According to the motion, filed April 7 by the Texas-based Fears Nachawati law firm with the U.S. Judicial Panel on Multidistrict Litigation, there are currently at least 14 lawsuits filed by eight different law firms in six different federal courts across the country. The lawsuits are all filed on behalf of plaintiffs who have been diagnosed with the neurodegenerative disorder, and they allege exposure to Syngenta’s weed killers made with a chemical called paraquat for the disease. Several other cases making the same allegations are pending in state courts.

“The cases are excellent candidates for coordinated pretrial proceedings because they arise from the same poisonous toxin causing the same crippling disease resulting from the wrongful conduct of the same three defendants,” the Fears Nachawati brief in support of its motion states. “Movant expects that the number of similar cases filed in state and federal courts across the country will expand rapidly.”

The motion seeks transfer specifically to Judge Edward Chen in the U.S. District Court for the Northern District of California.

Majed Nachawati, a partner with the Fears Nachawati firm, said the firm was still investigating the size and scope of the overall litigation but believes the paraquat litigation against Syngenta “will be significant and material in nature…”

“Very soon, there is going to be litigation in dozens of federal courts across the country,” Nachawati said.

The plaintiffs’ lawyers will be seeking internal corporate documents as well as depositions of corporate officials related to the “testing, design, labeling, marketing, and safety of paraquat herbicides,” along with corporate research and evaluations of the toxicity and safety of its paraquat products.

The Miller Firm of Virginia, which helped lead the Roundup cancer litigation against Monsanto that resulted in an $11 billion settlement with Monsanto owner Bayer AG, is among the law firms joining in the paraquat litigation. The Miller firm supports the effort to consolidate the federal actions in California, where thousands of Roundup cases were also consolidated for pretrial proceedings, according to the firm’s lead attorney Mike Miller.

“We are confident that science strongly supports the causal connection between paraquat and the devastation of Parkinson’s disease,” Miller said of the motion. “The Northern District of California is well equipped to handle these cases.”

The cases against Syngenta also name Chevron Phillips Chemical Co. as a defendant. Chevron distributed and sold Gramoxone paraquat products in the United States starting with an agreement with a Syngenta predecessor called Imperial Chemical Industries (ICI), which introduced paraquat-based Gramoxone in 1962. Under a license agreement, Chevron had the right to manufacture, use, and sell paraquat formulations in the U.S.

Syngenta and Chevron have denied the allegations.

Syngenta says that its paraquat products have been approved as “safe and effective” for more than 50 years and it will “vigorously” defend the lawsuits. Syngenta is owned by China National Chemical Corporation, known as ChemChina.

Scientific studies

Parkinson’s is an incurable progressive disorder that affects nerve cells in the brain, leading in advanced cases to severe physical debilitation and often dementia. Many Parkinson’s experts say the disease can be caused by a range of factors, including exposure to pesticides such as paraquat, as well as other chemicals.

Several scientific studies have linked paraquat to Parkinson’s, including a large study of U.S. farmers jointly overseen by multiple U.S. government agencies. That 2011 research reported that people who used paraquat were twice as likely to develop Parkinson’s disease as people who did not use it.

“Numerous epidemiological and animal studies have linked paraquat to Parkinson’s disease,” said Ray Dorsey, a professor of neurology and director of the Center for Human Experimental Therapeutics at University of Rochester in New York. Dorsey is also the author of a book about prevention and treatment of Parkinson’s Disease.

“The evidence linking paraquat to Parkinson’s disease is probably the strongest of any pesticide commonly used,” he said.

Some studies have not found any clear links between paraquat and Parkinson’s and Syngenta asserts that the most recent and authoritative research does not show a connection.

Indeed, a study published in 2020 found connections between some other pesticides and Parkinson’s, but no strong evidence showing paraquat causes the disease.

Upcoming trial

One case filed in a state court is scheduled to go to trial next month. Hoffman V. Syngenta is slated for trial May 10 in St. Clair County Circuit Court in Illinois. A status conference is scheduled for the end of this month.

Missouri lawyer Steve Tillery, who is representing the plaintiffs in the Hoffman case as well as several other plaintiffs in other paraquat lawsuits, said despite Syngenta’s assertions to the contrary, he has accumulated evidence that includes internal company records showing Syngenta has known for decades that its product causes Parkinson’s Disease.

“They shouldn’t be selling this product, said Tillery. “This chemical should be off the market.”

New Roundup cancer trials loom despite Bayer settlement efforts

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Ken Moll is girding for battle.

Moll, a Chicago-based personal injury attorney, has dozens of lawsuits pending against the former Monsanto Co., all alleging the company’s Roundup weed killers cause non-Hodgkin lymphoma, and he is now preparing several of those cases for trial.

Moll’s firm is one of a handful that have refused settlement offers made by Monsanto owner Bayer AG, deciding instead to take the fight over the safety of Monsanto’s glyphosate-based herbicide products back into courtrooms around the country.

Though Bayer has assured investors it is bringing closure to the costly Roundup litigation through settlement deals totaling more than $11 billion, new Roundup cases are still being filed, and notably several are positioned for trial, with the earliest set to start in July.

“We’re going forward,” Moll said. “We’re doing this.”

Moll has lined up many of the same expert witnesses who helped win the three Roundup trials held to date. And he plans to rely heavily on the same internal Monsanto documents that provided shocking revelations of corporate misconduct that led juries to award hefty punitive damages to the plaintiffs in each of those trials.

Trial set for July 19

One case with a trial date looming involves a 70-year-old woman named Donnetta Stephens from Yucaipa, California who was diagnosed with non-Hodgkin lymphoma (NHL) in 2017 and has suffered from numerous health complications amid multiple rounds of chemotherapy. Stephens was recently granted a trial “preference,” meaning her case has been expedited, after her lawyers informed the court that Stephens is “in a perpetual state of pain,” and losing cognition and memory. The case is set for trial July 19 in San Bernardino County Superior Court in California.

Several other cases have either already been granted preference trial dates, or are seeking trial dates, for elderly people and at least one child suffering from NHL the plaintiffs allege was caused by exposure to Roundup products.

The litigation is not over. It is going to be a continued headache for Bayer and Monsanto,” said Andrew Kirkendall, whose Texas-based firm is helping represent Stephens and other clients seeking speedy trials.

Kirkendall said his firm has lawsuits moving forward to trial in California, Oregon, Missouri, Arkansas and Massachusetts.

This has the potential to be the next asbestos litigation,” he said, referring to decades of lawsuits brought over asbestos-related health problems.

Bayer rejection

Bayer bought Monsanto in June 2018 just as the first Roundup cancer trial was getting underway. Juries in each of the cases that went to trial found that Monsanto’s herbicides do cause cancer and that Monsanto spent decades hiding the risks. Jury awards totaled well over $2 billion, though the judgments have been ordered reduced in the appeals process.

After coming under intense pressure from investors to find a way to cap liability, Bayer announced in June that it had reached a $10 billion settlement to resolve most of more than 100,000 Roundup cancer claims in the United States. Since that time it has been signing deals with law firms around the country, including the firms that have led the litigation since the first suits were filed in 2015. The company is also trying to get court approval for a separate $2 billion plan to try to keep Roundup cancer cases that could be filed in the future from going to trial.

Bayer has been unable to settle with all of the firms with Roundup cancer clients, however. According to multiple plaintiffs’ attorneys, their firms rejected settlement offers because the amounts generally ranged from $10,000 to $50,000 per plaintiff – compensation the attorneys deemed inadequate.

“We said absolutely no,” Moll said.

Another law firm pushing cases forward for trial is the San Diego, California-based Singleton Law Firm, which has roughly 400 Roundup cases pending in Missouri and about 70 in California.

The firm is seeking an expedited trial now for 76-year-old Joseph Mignone, who was diagnosed with NHL in 2019. Mignone completed chemotherapy more than a year ago but also has endured radiation to treat a tumor on his neck, and continues to suffer debilitation, according to the court filing seeking trial preference.

Stories of suffering

There are many stories of suffering within the files of the plaintiffs who are still hoping to get their day in court against Monsanto.

  • Retired FBI agent and college professor John Schafer began using Roundup in 1985 and used the herbicide multiple times during spring, fall and summer months until 2017, according to court records. He did not wear protective clothing until warned by a farmer friend in 2015 to wear gloves. He was diagnosed with NHL in 2018.
  • Sixty-three year-old Randall Seidl applied Roundup over 24 years, including regularly spraying the product around his yard in San Antonio, Texas from approximately 2005 to 2010 and then around property in North Carolina until 2014 when he was diagnosed with NHL, according to court records.
  • Robert Karman applied Roundup products beginning in 1980, generally using a hand-held sprayer to treat weeds on a weekly basis roughly 40 weeks a year, according to court records. Karman was diagnosed with NHL in July 2015 after his primary care doctor discovered a lump in his groin. Karman died in December of that year at the age of 77.

Plaintiffs’ attorney Gerald Singleton said Bayer’s only path to putting the Roundup litigation behind it is to put a clear warning label on its herbicide products, alerting users to the risk of cancer.

“That is the only way this thing is going to be over and done,” he said. Until then, he said, “we’re not going to stop taking cases.”

Bayer makes new $2 billion plan to head off future Roundup cancer claims

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Monsanto owner Bayer AG said Wednesday it was attempting again to manage and resolve potential future Roundup cancer claims, laying out a $2 billion deal with a group of plaintiffs’ attorneys that Bayer hopes will win approval from a federal judge who rejected a prior plan last summer.

Notably, the deal calls for Bayer to 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.

Additionally, according to Bayer, the plan calls for establishment of a fund that would compensate “qualified claimants” over a four-year program; setting up an advisory science panel whose findings could be used as evidence in potential future litigation; and development of research and diagnostic programs for medical and/or scientific research into the diagnosis and treatment of non-Hodgkin lymphoma.

The plan must be approved by U.S. District Judge Vince Chhabria of the U.S. District Court for the Northern District of California. Chhabria has been overseeing the Roundup multidistrict litigation.

Bayer said qualifying class members over the next four years would be eligible for levels of compensatory awards based on guidelines set forth in the agreement. The “settlement class” refers to people who were exposed to Roundup products but have not yet filed a lawsuit claiming injury from that exposure.

Settlement class members would be eligible for compensation between $10,000 and $200,000, Bayer said.
According to the agreement, the distribution of the settlement fund would break out as follows:
* Compensation Fund – At least $1.325 billion
* Diagnostic Accessibility Grant Program – $210 million
* Research Funding Program – $40 million
* Settlement Administration Costs, Advisory Science Panel Costs, Settlement Class Notice Costs, Taxes,
and Escrow Agent Fees and Expenses – Up to $55 million
The proposed settlement plan for future class action litigation is separate from the settlement agreement Bayer made with lawyers for tens of thousands of plaintiffs who have already brought claims alleging exposure to Roundup and other Monsanto glyphosate-based weed killers caused them to develop non-Hodgkin lymphoma.
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.

California Supreme Court denies review of Monsanto Roundup trial loss

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The California Supreme Court will not review a California man’s trial win over Monsanto, dealing another blow to Monsanto’s German owner, Bayer AG.

The decision to deny a review in the case of Dewayne “Lee” Johnson marks the latest in a string of court losses for Bayer as it tries to complete settlements with close to 100,000 plaintiffs who each claim they or their loved ones developed non-Hodgkin lymphoma from exposure to Roundup and other Monsanto weed killers. Juries in each of three trials held to date have found not only that the company’s glyphosate-based herbicides cause cancer but also that Monsanto spent decades hiding the risks.

“We are disappointed with the Court’s decision not to review the intermediate appeals court’s decision in Johnson and will consider our legal options for further review of this case,” Bayer said in a statement.  

The Miller Firm, Johnson’s Virginia-based law firm, said the California Supreme Court’s decision denied “Monsanto’s latest attempt to skirt responsibility” for causing Johnson’s cancer.

“Multiple judges have now affirmed the jury’s unanimous finding that Monsanto maliciously  concealed Roundup’s cancer risk and caused Mr. Johnson to develop a deadly form of cancer. The time has come for Monsanto to end its baseless appeals and pay Mr. Johnson the money it owes him,” the firm said.

A unanimous jury found in August 2018 that exposure to Monsanto’s herbicides  caused Johnson to develop a deadly form of 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, the trial judge reduced the $289 million to $78 million. An appeals court then cut the award to $20.5 million, citing the fact that Johnson was expected to live only a short time.

The appeals court said it 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.”

Both Monsanto and Johnson sought review by the California Supreme Court, with Johnson asking for restoration of a higher damage award and Monsanto seeking to reverse the trial judgment.

Bayer has reached 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.

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