Bayer’s bid to settle U.S. Roundup cancer claims making progress

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Monsanto owner Bayer AG is making progress toward a sweeping settlement of thousands of U.S. lawsuits brought by people alleging they or their loved ones developed cancer after exposure to Monsanto’s Roundup herbicides.

Recent correspondence from plaintiffs’ lawyers to their clients underscored that progress, confirming a large percentage of plaintiffs are opting to participate in the settlement, despite complaints by many plaintiffs that they are facing unfairly small payout proposals.

By some calculations, the average gross settlement will leave little to no compensation, perhaps a few thousand dollars, for individual plaintiffs after attorneys’ fees are paid and certain insured medical costs are reimbursed.

Nevertheless, according to a letter sent to plaintiffs in late November by one of the lead law firms in the litigation, more than 95 percent of the “eligible claimants” decided to participate in the settlement plan negotiated by the firm with Bayer. A “settlement administrator” now has 30 days to review the cases and confirm the plaintiffs’ eligibility to receive settlement funds, according to the correspondence.

People can choose to opt out of the settlement and take their claims to mediation, followed by binding arbitration if they wish or try to find a new lawyer who would take their case to trial. Those plaintiffs could have a difficult time finding a lawyer to help them take their case to trial because the law firms agreeing to the settlements with Bayer have agreed not to try any more cases or assist in future trials.

One plaintiff, who asked not to be identified by name due to the confidentiality of the settlement proceedings, said he is opting out of the settlement in hopes of obtaining more money through mediation or a future trial. He said he requires ongoing tests and treatments for his cancer and the proposed settlement structure would leave him nothing to cover those ongoing costs.

“Bayer wants a release by paying as little as possible without going to trial,” he said.

The rough estimate on average gross payouts per plaintiff is about $165,000, lawyers and plaintiffs involved in the discussions have said.  But some plaintiffs could receive far more, and some less, depending upon the details of their case. There are many criteria determining who can participate in the settlement and how much money that person may receive.

To be eligible, the Roundup user has to be a U.S. citizen, have been diagnosed with non-Hodgkin lymphoma (NHL), and had exposures to Roundup for at least one year prior to being diagnosed with NHL.

The settlement agreement with Bayer will be complete when the administrator confirms that more than 93 percent of claimants qualify, according to the terms of the deal.

If the settlement administrator finds a plaintiff ineligible, that plaintiff has 30 days to appeal the decision.

For plaintiffs deemed eligible the settlement administrator will award each case a number of points based on specific criteria. The amount of money each plaintiff will receive is based on the number of points calculated for their individual situation.

Basis points are established using the age of the individual at the time they were diagnosed with NHL and the level of severity of the “injury” as determined by the degree of treatment and outcome. The levels run 1-5. Someone who died from NHL is assigned basis points for a level 5, for instance. More points are given to younger people who suffered multiple rounds of treatment and/or died.

In addition to the basis points, adjustments are allowed that give more points to plaintiffs who had more exposure to Roundup. There are also allowances for more points for specific types of NHL. Plaintiffs diagnosed with a type of NHL called Primary Central Nervous System (CNS) lymphoma receive a 10 percent boost to their points tally, for example.

People can also have points deducted based on certain factors. Here are a few specific examples from the points matrix established for the Roundup litigation:

  • If a Roundup product user died before January 1, 2009, the total points for the claim brought on their behalf will be reduced by 50 percent.
  • If a deceased plaintiff had no spouse or minor children at the time of their death there is a deduction of 20 percent.
  • If a plaintiff had any prior blood cancers before using Roundup their points are cut by 30 percent.
  • If the span of time between a claimant’s Roundup exposure and the diagnosis of NHL was less than two years the points are cut 20 percent.

The settlement funds should begin to flow to participants in the spring with final payments hopefully made by summer, according to lawyers involved.

Plaintiffs can also apply to be part of an “extraordinary injury fund,” set up for a small group of plaintiffs who suffer from severe NHL-related injuries. A claim may be eligible for the extraordinary injury fund if the individual’s death from NHL came after three or more full courses of chemotherapy and other aggressive treatments.

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

The jury awards totaled well over $2 billion, though the judgments have been ordered reduced by trial and appellate court judges.

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

Trial Appeals Continue

Even as Bayer aims to head off future trials with settlement dollars, the company continues to try to overturn the outcomes of the three trials the company lost.

In the first trial loss – the Johnson v. Monsanto case – Bayer lost efforts to overturn the jury finding that Monsanto was liable for Johnson’s cancer at the appellate court level, and in October, the California Supreme Court refused to review the case.

Bayer now has 150 days from that decision to ask for the matter to be taken up by the U.S. Supreme Court. The company has not made a final decision regarding that move, according to a Bayer spokesman, but has indicated previously that it does intend to take such action.

If Bayer does petition the U.S. Supreme Court, Johnson’s attorneys are expected to file a conditional cross-appeal asking the court to examine the judicial actions that slashed Johnson’s jury award from $289 million to $20.5 million.

Other Bayer/Monsanto court cases

In addition to the liability Bayer faces from Monsanto’s Roundup cancer litigation, the company is struggling with Monsanto liabilities in PCB pollution litigation and in litigation over crop damage caused by Monsanto’s dicamba herbicide-based crop system.

A federal judge in Los Angeles last week rejected a proposal by Bayer to pay $648 million to settle class-action litigation brought by claimants alleging contamination from polychlorinated biphenyls, or PCBs, made by the Monsanto.

Also last week, the trial judge in the case of Bader Farms, Inc. v. Monsanto rejected Bayer’s motions for a new trial.  The judge cut the punitive damages awarded by the jury, however, from $250 million to $60 million, leaving intact compensatory damages of $15 million, for a total award of $75 million.

Documents obtained through discovery in the Bader case revealed that Monsanto and chemical giant BASF were aware for years that their plans to introduce a dicamba herbicide-based agricultural seed and chemical system would probably lead to damage on many US farms.

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

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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.

First Monsanto Roundup Cancer Trial Underway

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Related coverage:

  • Landmark Lawsuit Claims Monsanto Hid Cancer Danger of Weedkiller for Decades, by Carey Gillam in The Guardian
  • First Monsanto Roundup Cancer Trial Jury Selection, Carey Gillam’s blog

By Carey Gillam

Let the battle begin. Opening statements are slated for Monday in the landmark legal case that for the first time puts Monsanto and its Roundup herbicide on trial over allegations that the company’s widely used weed killer can cause cancer.

Dewayne “Lee” Johnson, a San Francisco-area school groundskeeper who used a form of Roundup regularly at his job, will face off against the global seed and chemical giant in a trial expected to extend into August. Johnson hopes to persuade a jury that Monsanto, which last month became a subsidiary of Bayer AG, is to blame for the non-Hodgkin lymphoma that doctors have said leaves him only weeks or months left to live.

Hints of the courtroom drama to come unfolded over the last week of June as jury selection dragged on for days, with Monsanto claiming widespread bias among prospective jurors. A number of the members of the jury pool, Monsanto’s attorney said, revealed in jury questionnaires that they view Monsanto as “evil.” Some even said they believe the company has “killed people,” a Monsanto attorney lawyer told San Francisco Superior Court Judge Suzanne Bolanos.

Monsanto’s attorneys cited similar issues in seeking to quell media coverage of the trial, telling the judge that she should not allow news cameras to televise the events because the publicity would “create a significant safety risk” for Monsanto’s employees and attorneys who have been targeted with “multiple threats and disturbing communications,” related to the litigation. Monsanto said employees have received threatening phone calls as well as ominous postcards sent to their homes. One postcard displayed a skull and crossbones along with a photo of the recipient, Monsanto said in a court filing.

Judge Bolanos ruled that some parts of the trial will be allowed to be broadcast, including opening statements, closing arguments and the announcement of a verdict. The trial is expected to be closely followed by people around the world; the French news outlet Agence France Presse is among the contingent of media who sought permission to cover the case.

Heated debates over the safety of Roundup and the active ingredient glyphosate have spanned the globe for years. Concerns mounted after internal Monsanto documents came to light through court-ordered discovery, showing conversations among Monsanto employees about “ghost” writing certain scientific papers to help influence regulatory and public opinion about Monsanto products.

Many of those internal corporate records are expected to be a key part of Johnson’s case. Johnson’s attorneys say they have evidence that Monsanto has long known that glyphosate-based herbicides such as Roundup are carcinogenic and have hidden that information from consumers and regulators. They allege Monsanto has manipulated the scientific record and regulatory assessments of glyphosate in order to protect corporate glyphosate-related revenues. Monsanto knew of the dangers and “made conscious decisions not to redesign, warn or inform the unsuspecting public,” the Johnson lawsuit claims.

If they can convince a jury of the allegations, the lawyers say they plan to ask for potentially “hundreds of millions of dollars.”

Johnson’s lawsuit against Monsanto makes him one of roughly 4,000 plaintiffs who sued the company after the International Agency for Research on Cancer (IARC) classified glyphosate as a probable human carcinogen in March 2015. The IARC classification was based on a review of more than a decade of published, peer-reviewed scientific studies analyzing glyphosate and glyphosate-based herbicides. Johnson’s case is the first to go to trial. Another is scheduled for trial in October in St. Louis, Missouri.

Monsanto argues there is no justification for any of the claims, and asserts it has decades of regulatory findings of safety and hundreds of research studies to back its defense. “Glyphosate is the most tested herbicide in history,” Monsanto stated in its trial brief.

The company says it plans to introduce expert testimony demonstrating that the science is firmly on its side—”the entire body of epidemiology literature shows no causal association” between its glyphosate-based herbicides and non-Hodgkin lymphoma, the company states. As well, the animal testing database “is most consistent with glyphosate not being a human carcinogen,” according to Monsanto.

The company’s attorneys also plan to show that Johnson’s exposure was minimal, and notably, that development of his type of cancer—a disease called mycosis fungoides that causes lesions on the skin—takes many years to form and could not have developed in the short period between Johnson’s exposure and his diagnosis.

Monsanto’s attorneys argue in court filings that Johnson’s claims are so weak the judge should instruct the jury to provide a directed verdict in Monsanto’s favor.

But Johnson’s attorneys plan to tell jury members that Johnson began to experience a skin rash not long after being accidentally doused in a Monsanto glyphosate-based herbicide called Ranger Pro. He saw the rash—which turned to lesions and then invaded lymph nodes—worsen after he would use the chemical, which was frequently as he treated school grounds. Johnson’s attorneys plan to tell jurors that Johnson was so worried that the herbicide was to blame that he called Monsanto’s offices as well as a poison hotline number listed on the herbicide label. Monsanto employees recorded his outreach and his concerns, internal Monsanto documents show. But even after the IARC classification of glyphosate as a probable carcinogen, Monsanto did not inform him of any risk, according to evidence to be presented at the trial.

As part of their case, Johnson’s attorneys intend to present video depositions of 10 former or current Monsanto employees, and of former Environmental Protection Agency official Jess Rowland, whose relationship with Monsanto has sparked allegations of collusion and an inquiry from the EPA’s Office of Inspector General. They also will call to the stand Johnson himself, his wife, his doctors, and several scientists as expert witnesses.

The Monsanto witness list includes 11 expert witnesses who will testify both about the necessity of herbicides, including glyphosate-based herbicides; certain scientific literature; the plaintiff’s type of cancer and potential causes; and other evidence that Monsanto says discredits Johnson’s claims.

Johnson’s attorneys will start the opening statements on Monday, and have projected that initial explanation of their case to the jury will take roughly 1-1/2 hours. Monsanto’s attorneys have told the court they expect their opening statements to take roughly 1-1/4 hours.

This story originally appeared in EcoWatch.