A death and a settlement as Bayer continues trying to end Roundup litigation

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Seven months after Bayer AG announced plans for a sweeping settlement of U.S. Roundup cancer litigation, the German owner of Monsanto Co. continues to work to settle tens of thousands of claims brought by people suffering from cancer they say was caused by Monsanto’s weed killing products. On Wednesday, one more case appeared to find closure, though the plaintiff did not live to see it.

Lawyers for Jaime Alvarez Calderon, agreed earlier this week to a settlement offered by Bayer after U.S. District Judge Vince Chhabria on Monday denied summary judgment in favor of Monsanto, allowing the case to move closer to a trial.

The settlement will go to Alvarez’s four sons because their 65-year-old father, a longtime winery worker in Napa County, California, died just over a year ago from non-Hodgkin lymphoma he blamed on his work spraying Roundup around winery property for years.

In a hearing held in federal court Wednesday, Alvarez family lawyer David Diamond told Judge Chhabria that the settlement would close out the case.

After the hearing, Diamond said Alvarez had worked in the wineries for 33 years, using a backpack sprayer to apply Monsanto’s glyphosate-based herbicides to sprawling acreage for the Sutter Home group of wineries. He would often go home in the evenings with clothing wet with herbicide due to leaks in the equipment and weed killer that drifted in the wind.  He was diagnosed in 2014 with non-Hodgkin lymphoma, undergoing multiple rounds of chemotherapy and other treatments before dying in December 2019.

Diamond said he was happy to settle the case but has “400 plus” more Roundup cases still unresolved.

He is not alone. At least half a dozen other U.S. law firms have Roundup plaintiffs they are seeking trial settings for in 2021 and beyond.

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

In addition to efforts to resolve claims currently pending, Bayer also hopes to create a mechanism for resolving potential claims that it could face from Roundup users who develop non-Hodgkin lymphoma in the future. Its initial plan for handling future litigation was rejected by Judge Chhabria and the company has yet to announce a new plan.

Neonicotinoids: a growing concern

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On January 10, The Guardian published this story about a small rural Nebraska community that has been struggling for at least two years with contamination tied to neonicotinoid-coated corn seed. The source is an area ethanol plant that has been marketing itself as a free “recycling” location for seed companies such as Bayer, Syngenta and others who needed a place to get rid of excess supplies of these pesticide-treated seed stocks. The result, the townspeople say, is a landscape laced with stunningly high levels of neonicotinoid residues, which they say have triggered illnesses in both humans and animals. They fear their land and water are now irreparably contaminated.

State environmental officials have recorded levels of the neonicotinoids at a staggering 427,000 parts per billion (ppb) in testing of one of the large hills of waste on the site of the ethanol plant property. That compares to regulatory benchmarks saying levels must be under 70 ppb to be considered safe.

See this page for more details and documents.

University of Nebraska academic Judy Wu-Smart has documented the concerns and evidence of the apparent impacts of the contamination on the area environment, including on bees and other wildlife in a paper she has been sharing with other academics.

The tale of the toll on the community in Mead, Nebraska, is but the latest sign that state and federal regulatory oversight of neonicotinoids needs to be strengthened, according to environmental advocates and researchers from several U.S. universities.

“They are doing a ton of harm and clearly being nefarious about it,’ said Sarah Hoyle, who specializes in pesticide issues for the Xerces Society, an Oregon-based conservation organization.

The controversy over the class of insecticides known as neonicotinoids, or neonics, has been growing in recent years and has become a global conflict between the corporate behemoths that sell neonics and environmental and consumer groups who say the insecticides are responsible for extensive environmental and human health harm.

Since being introduced in the 1990s, neonicotinoids have become the world’s most widely used class of insecticides, sold in at least 120 countries to help control damaging insects and protect agricultural production. The insecticides are not only sprayed on plants but also coated on seeds. Neonicotinoids are used in producing many types of crops, including rice, cotton, corn, potatoes and soybeans. As of 2014, neonicotinoids represented more than 25 percent of the global pesticide market, according to researchers.

Within the class, clothianidin and imidacloprid are the most commonly used in the United States, according to a 2019 paper published in the journal Environmental Health.

In January 2020, the Environmental Protection Agency released a proposed interim decisions for acetamiprid, clothianidin, dinotefuran, imidacloprid, and thiamethoxam, specific insecticides within the neonicotinoid class. The EPA said it was working to reduce the amount used on crops associated with “potential ecological risks,” restricting when the pesticides could be applied to blooming crops.

A growing body of scientific evidence indicates that neonicotinoids are a factor in the widespread colony collapse disorder of bees, which are essential pollinators in food production. They are also seen as at least partly to blame for an “insect apocalypse. The insecticides have also been tied to serious defects in white-tailed deer, deepening concerns over the chemical’s potential to harm large mammals, including people.

The European Union banned the outdoor use of neonics clothianidin, imidacloprid and thiamethoxam in 2018, and the United Nations says neonics are so hazardous that they should be “severely” restricted. But in the United States, neonics remain widely used.

Nebraska regulatory documents regarding AltEn neonicotinoid contamination

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AltEn, an ethanol plant in Mead, Nebraska, has been the source of numerous community complaints over the use of pesticide-coated seeds for use in its biofuel production and the resulting waste products, which have been shown to contain levels of harmful neonicotinoids and other pesticides well above levels generally considered safe.

The concerns in Mead are but the latest example of growing global fear about the impacts of neonicotinoids.

See this story in The Guardian.

See here some of the regulatory documents related to the controversy as well as other background materials:

Analysis of wetcake distillers grains

Wastewater analysis 

April 2018 citizen complaint

State response to April 2018 complaints

May 2018 state response to complaints

AltEn Stop use & sell letter June 2019

State letter denying permits and discussing problems

May 2018 list of farmers where they spread the waste

July 2018 discussion of wetcake being treated seed

Sept 2020 letter re spills with photos

October 2020 letter of noncompliance

Aerial Photos of site taken by state

How Neonicotinoids Can Kill Bees

Trends in neonicotinoid pesticide residues in food and water in the United States, 1999-2015

Letter from health experts to EPA warning on neonicotinoids

Letter from Endocrine Society to EPA on neonicotinoids 

Neonicotinoid pesticides can stay in the U.S. market, EPA says

Petition to California to regulate neonic-treated seeds

Vanishing Bees: Science, Politics and Honeybee Health (Rutgers University Press, 2017)

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.

New glyphosate papers point to “urgency” for more research on chemical impact to human health

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Newly published scientific papers illustrate the ubiquitous nature of the weed killing chemical glyphosate and a need to better understand the impact exposure to the popular pesticide may be having on human health, including the health of the gut microbiome.

In one of the new papers, researchers from the University of Turku in Finland said that they were able to determine, in a “conservative estimate,” that approximately 54 percent of species in the core of the human gut microbiome are “potentially sensitive” to glyphosate. The researchers said they used a new bioinformatics method to make the finding.

With a “large proportion” of bacteria in the gut microbiome susceptible to glyphosate, the intake of glyphosate “may severely affect the composition of the human gut microbiome,” the authors said in their paper, which was published this month in the Journal of Hazardous Materials.

The microbes in the human gut include a variety of bacteria and fungi and are believed to impact immune functions and other important processes. Unhealthy gut microbiomes are believed by some scientists to contribute to a range of diseases.

“Although data on glyphosate residues in human gut systems are still lacking, our results suggest that glyphosate residues decrease bacterial diversity and modulate bacterial species composition in the gut,” the authors said. “We may assume that long-term exposure to glyphosate residues leads to the dominance of resistant strains in the bacterial community.”

The concerns about glyphosate’s impact on the human gut microbiome stem from the fact that glyphosate works by targeting an enzyme known as 5-enolpyruvylshikimate-3-phosphate synthase (EPSPS.) This enzyme is critical to the synthesizing of essential amino acids.

“To determine the actual impact of glyphosate on the human gut microbiota and other organisms, further empirical studies are needed to reveal glyphosate residues in food, to determine the effects of pure glyphosate and commercial formulations on microbiomes and to assess the extent to which our EPSPS amino acid markers predict bacterial susceptibility to glyphosate in in vitro and real-world scenarios,” the authors of the new paper concluded.

In addition to the six researchers from Finland, one of the authors of the paper is affiliated with the department of biochemistry and biotechnology at Rovira i Virgili University, Tarragona, Catalonia, in Spain.

“The consequences for human health are not determined in our study. However, based on previous studies… we know that alterations in the human gut microbiome may be connected to several diseases,” University of Turku researcher Pere Puigbo said in an interview.

“I hope that our research study opens the door to further experiments, in-vitro and in the field, as well as population-based studies to quantify the effect the use of glyphosate has on human populations and other organisms,” Puigbo said.

Introduced in 1974

Glyphosate is the active ingredient in Roundup herbicides and hundreds of other weed killing products sold around the world. It was introduced as a weed killer by Monsanto in 1974 and grew to become the most widely used herbicide after Monsanto’s introduction in the 1990s of crops genetically engineered to tolerate the chemical. Residues of glyphosate are commonly found on food and in water. Consequently, residues are also often detected in the urine of people exposed to glyphosate through either diet and/or application.

U.S. regulators and Monsanto owner Bayer AG maintain there are no human health concerns with glyphosate exposure when the products are used as intended, including from residues in the diet.

The body of research contradicting those claims is growing, however. The research on the potential impacts of glyphosate on the gut microbiome is not nearly as robust as the literature associating glyphosate to cancer, but is an area many scientists are probing.

In a somewhat related paper published this month, a team of researchers from Washington State University and Duke University said that they had found a correlation between the levels of bacteria and fungi in the gastrointestinal tracts of children and the chemicals found in their homes. The researchers did not look at glyphosate specifically, but were alarmed to find that children with higher levels of common household chemicals in their bloodstream showed a reduction in the amount and diversity of important bacteria in their gut.

Glyphosate in urine

An additional scientific paper published this month underscored a need for better and more data when it comes to glyphosate exposure and children.

The paper, published in the journal Environmental Health by researchers from the Institute for Translational Epidemiology at the Icahn School of Medicine at Mount Sinai in New York, is the outcome of a literature review of multiple studies reporting actual values of glyphosate in people.

The authors said they analyzed five studies published in the last two years reporting glyphosate levels measured in people, including one study in which urinary glyphosate levels were measured in children living in rural Mexico. Of 192 children living in the Agua Caliente area, 72.91 percent had detectable levels of glyphosate in their urine, and all of the 89 children living in Ahuacapán, Mexico, had detectable levels of the pesticide in their urine.

Even when including additional studies, overall, there is sparse data regarding glyphosate levels in people. Studies globally total only 4,299 people, including 520 children, the researchers said.

The authors concluded that it is not currently possible to understand the “potential relationship” between glyphosate exposure and disease, especially in children, because data collection on exposure levels in people is limited and not standardized.

They noted that despite the lack of solid data about the impacts of glyphosate on children, the amount of glyphosate residues legally allowed by U.S. regulators on food has increased dramatically over the years.

“There are gaps in the literature on glyphosate, and these gaps should be filled with some urgency, given the large use of this product and its ubiquitous presence,” said author Emanuela Taioli.

Children are especially vulnerable to environmental carcinogens and tracking exposure to products such as glyphosate in children is “a pressing public health priority,” according to the authors of the paper.

“As with any chemical, there are multiple steps involved in evaluating risk, which include gathering information about human exposures, so that the levels that produce harm in one population or animal species can be compared to typical exposure levels,” the authors wrote.

“However, we have previously shown that data on human exposure in workers and the general population are very limited. Several other gaps in knowledge exist around this product, for example results on its genotoxicity in humans are limited. The continued debate regarding the effects of glyphosate exposure makes establishing exposure levels in the general public a pressing public health issue, especially for the most vulnerable.”

The authors said monitoring of urinary glyphosate levels should be conducted in the general population.

“We continue to suggest that inclusion of glyphosate as a measured exposure in nationally representative studies like the National Health and Nutrition Examination Survey will allow for a better understanding of the risks that glyphosate may pose and allow for better monitoring of those who are most likely to be exposed and those who are more susceptible to the exposure,” they wrote.

New research adds evidence that weed killer glyphosate disrupts hormones

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New research is adding worrisome evidence to concerns that the widely used weedkilling chemical glyphosate may have the potential to interfere with human hormones.

In a paper published in the journal Chemosphere titled Glyphosate and the key characteristics of an endocrine disruptor: A review, a trio of scientists concluded that glyphosate appears to have eight out of ten key characteristics associated with endocrine disrupting chemicals . The authors cautioned, however, that prospective cohort studies are still needed to more clearly understand the impacts of glyphosate on the human endocrine system.

The authors, Juan Munoz, Tammy Bleak and Gloria Calaf, each affiliated with the University of Tarapacá in Chile, said their paper is the first review to consolidate the mechanistic evidence on glyphosate as an endocrine-disrupting chemical (EDC).

Some of the evidence suggests that Roundup, Monsanto’s well-known glyphosate-based herbicide, can alter the biosynthesis of the sexual hormones, according to the researchers.

EDCs may mimic or interfere with the body’s hormones and are linked with developmental and reproductive problems as well as brain and immune system dysfunction.

The new paper follows publication earlier this year of an assortment of animal studies that indicated glyphosate exposures impact reproductive organs and threaten fertility.

Glyphosate is the world’s most widely used herbicide, sold in 140 countries. Introduced commercially in 1974 by Monsanto Co, the chemical is the active ingredient in popular products such as Roundup and hundreds of other weed killers used by consumers, municipalities, utilities, farmers, golf course operators, and others around the world.

Dana Barr, a professor at Emory University’s Rollins School of Public Health, said the evidence “tends to overwhelmingly indicate that glyphosate has endocrine disrupting properties.”

“It’s not necessarily unexpected since glyphosate has some structural similarities with many other endocrine disrupting pesticides; however, it is more concerning because glyphosate use far surpasses other pesticides,” said Barr, who directs a program within a National Institutes of Health-funded human exposure research center housed at Emory. “Glyphosate is used on so many crops and in so many residential applications such that aggregate and cumulative exposures can be considerable.”

Phil Landrigan, director of the Global Observatory on Pollution and Health, and a professor of biology
at Boston College, said the review pulled together “strong evidence” that glyphosate is an endocrine disruptor.

“The report is consistent with a larger body of literature indicating that glyphosate has a wide range of adverse health effects – findings that overturn Monsanto’s long-standing portrayal of glyphosate as a benign chemical with no negative impacts on human health,” said Landrigan.

EDCs have been a subject of concern since the 1990s after a series of publications suggested that some chemicals commonly used in pesticides, industrial solvents, plastics, detergents, and other substances could have the capacity to disrupt connections between hormones and their receptors.

Scientists generally recognized ten functional properties of agents that alter hormone action, referring to these as ten “key characteristics” of endocrine-disruptors. The ten characteristics are as follows:

EDC’s can:

  • Alter hormone distribution of circulating levels of hormones
  • Induce alterations in hormone metabolism or clearance
  • Alter the fate of hormone-producing or hormone-responsive cells
  • Alter hormone receptor expression
  • Antagonize hormone receptors
  • Interact with or activate hormone receptors
  • Alter signal transduction in hormone-responsive cells
  • Induce epigenetic modifications in hormone-producing or hormone-responsive cells
  • Alter hormone synthesis
  • Alter hormone transport across cell membranes

The authors of the new paper said a review of the mechanistic data showed that glyphosate met all of the key characteristics with the exception of two:  “Regarding glyphosate, there is no evidence associated with the antagonistic capacity of hormonal receptors,” they said. As well, “there is no evidence of its impact on hormonal metabolism or clearance,” according to the authors.

Research over the last few decades has largely focused on links found between glyphosate and cancer, particularly non-Hodgkin lymphoma (NHL.) In 2015, the World Health Organization’s International Agency for Research on Cancer classified glyphosate as a probable human carcinogen.

More than 100,000 people have sued Monsanto in the United States alleging exposure to the company’s glyphosate-based herbicides caused them or their loved ones to develop NHL.

The plaintiffs in the nationwide litigation also claim Monsanto has long sought to hide the risks of its herbicides. Monsanto lost three out of three trials and its German owner Bayer AG has spent the last year and a half trying to settle the litigation out of court.

The authors of the new paper took note of the ubiquitous nature of glyphosate, saying “massive use” of the chemical has “led to a wide environmental diffusion,” including rising exposures tied to human consumption of the weed killer through food.

The researchers said that though regulators say the levels of glyphosate residue commonly found in foods are low enough to be safe, they “cannot rule out” a “potential risk” to people consuming foods containing contaminated with the chemical,  particularly grains and other plant-based foods, which often have higher levels than milk, meat or fish products.

U.S. government documents show glyphosate residues have been detected in a range of foods, including organic honey, and granola and crackers.

Canadian government researchers have also reported glyphosate residues in foods. One report issued in 2019 by scientists from Canada’s Agri-Food Laboratories at the Alberta Ministry of Agriculture and Forestry found glyphosate in 197 of 200 samples of honey they examined.

Despite the concerns about glyphosate impacts on human health, including through dietary exposure, U.S. regulators have steadfastly defended the safety of the chemical. The Environmental Protection Agency maintains that it has not found any human health risks from exposure to glyphosate.”

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.

Bayer’s Monsanto headache persists

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The migraine that is Monsanto doesn’t appear to be going away anytime soon for Bayer AG.

Efforts at settling the mass of lawsuits brought in the United States by tens of thousands of people who claim Monsanto’s Roundup herbicides gave them cancer continue to inch forward, but are not addressing all outstanding cases, nor are all plaintiffs offered settlements agreeing to them.

In a letter to U.S. District Judge Vince Chhabria, Arizona attorney David Diamond said that representations made by the lawyers leading settlement talks with Bayer on behalf of plaintiffs did not accurately reflect the situation for his own clients. He cited a “lack” of “settlement-related experiences” with Bayer and he requested that Judge Chhabria advance several of Diamond’s cases forward for trials.

“Leadership’s representations regarding settlement do not represent my clients’ settlement
related experiences, interests or position,” Diamond told the judge.

Diamond wrote in the letter that he has 423 Roundup clients, including 345 who have cases pending before Chhabria in the multidistrict litigation (MDL) in the U.S. District Court for the Northern District of California. Alongside the MDL are thousands of plaintiffs whose cases are pending in state courts.

Diamond’s outreach to the judge followed a hearing late last month in which several of the leading firms in the litigation and lawyers for Bayer told Chhabria they were close to resolving most, if not all, of the cases before the judge.

Bayer has reached important settlements with several of the leading law firms who collectively represent a significant share of the claims brought against Monsanto. In June, Bayer said it would provide $8.8 billion to $9.6 billion to resolve the litigation.

But controversy and conflict have dogged the overall settlement offers.

Several plaintiffs represented by the large firms and who spoke on condition that their names not be used, said they are not agreeing to the terms of the settlements, meaning their cases will be directed into mediation and, if that fails, to trials.

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

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

Problems Just Keep Mounting  

Bayer has threatened to file for bankruptcy if it cannot quell the Roundup litigation and on Wednesday the company issued a profit warning and announced billions in cost cuts, citing a “lower than expected outlook in the agricultural market” amid other factors. The news sent shares in the company tumbling.

In reporting Bayer’s troubles Barron’s noted: “The problems just keep mounting for Bayer and its investors, who by now must be used to regular bouts of disappointing news. The stock has now fallen more than 50% since the Monsanto deal was closed in June 2018. “This latest update only adds to the case for the Monsanto deal being one of the worst in corporate history.”

Roundup cancer trials still a threat to Bayer, but settlement talks progressing

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Lawyers for Monsanto owner Bayer AG and for plaintiffs suing Monsanto told a federal judge on Thursday that they were continuing to make progress in settling sweeping nationwide litigation brought by people who claim Monsanto’s Roundup caused them to develop cancer.

In a video hearing, Bayer lawyer William Hoffman told U.S. District Judge Vince Chhabria the company had reached deals – or was close to reaching deals – to resolve more than 3,000 lawsuits that are grouped together in multidistrict litigation (MDL) filed in U.S. District Court for the Northern District of California.

The company separately has already settled thousands of cases outside the MDL, cases that have been proceeding through state courts. But controversy and conflict have dogged the overall settlement offers, with allegations from some plaintiffs’ firms that Bayer reneged on agreements reached months ago, and some plaintiffs’ firms unwilling to agree to what they consider inadequate offers from Bayer.

There was no discussion of those complaints, however,  in Thursday’s hearing, with both sides expressing optimistic views.

“The company has moved forward and finalized several agreements with firms…. we’re also hopefully going to finalize additional agreements in the next several days,” Hoffman told the judge.

“Where we are right now… these figures are somewhat estimates but I think they are reasonably close: There are approximately 1,750 cases that are subject to agreements between the company and law firms and another approximately 1,850 to 1,900 cases that are in various stages of discussion right now,” Hoffman said. “We are working to put in place a program to accelerate discussions and hopefully bring agreements to fruition with those firms.”

Plaintiffs’ lawyer Brent Wisner told the judge it was important to note that there remain a “handful of cases” within the MDL that are not settled yet. But, he said – “We anticipate they will be shortly.”

Judge Chhabria said that given the progress he will continue a stay of the Roundup litigation until November 2 but that he will start moving cases to trial if they are not resolved by that point.

Bayer Bad Dealing Alleged

The cooperative tone expressed in Thursday’s hearing was a far cry from a hearing held last month when plaintiffs’ attorney Aimee Wagstaff  told Judge Chhabria that Bayer was not honoring tentative settlement agreements made in March and intended for finalization in July.

Bayer announced in June that it had reached a $10 billion settlement with U.S. law firms to resolve most of more than 100,000 Roundup cancer claims. But at that time the only major law firms leading the litigation that had final signed agreements with Bayer were The Miller Firm and Weitz & Luxenburg.

The Miller Firm’s deal alone totaled $849 million to cover the claims of more than 5,000 Roundup clients, according to settlement documents.

The  California-based Baum Hedlund Aristei &  Goldman law firm; the Andrus Wagstaff firm from Colorado; and the Moore Law Group of Kentucky had tentative deals but not final agreements.

According to a letter written by Wagstaff filed with the court, Bayer requested repeated extensions until the deal with her firm fell apart in mid-August. After reporting the issues to Judge Chhabria, the settlement talks resumed and were ultimately resolved with the three firms this month.

Some details of how the settlements will be administered were filed earlier this week in a court in Missouri. The Garretson Resolution Group, Inc., doing business as Epiq Mass Tort, will act as the
Lien Resolution Administrator,” for instance, for clients of Andrus Wagstaff whose settlement dollars will need to be used in part or in whole to repay cancer treatment expenses paid by Medicare.

Bayer bought Monsanto in 2018 just as the first Roundup cancer trial was getting underway. It has since lost all three of the three trials held to date and has lost the early rounds of appeals seeking to overturn the trial losses. Juries in each of the trials found that Monsanto’s herbicides 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.

Bayer had threatened to file for bankruptcy if no nationwide settlement was reached, according to communications from the plaintiffs’ firms to their clients.

Thailand’s reversal on glyphosate ban came after Bayer scripted U.S. intervention, documents show

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A year ago Thailand was set to ban the widely used weed killing chemical glyphosate, a move applauded by public health advocates because of evidence the chemical causes cancer, along with other harms to people and the environment.

But under heavy pressure from U.S. officials, Thailand’s government reversed the planned ban on glyphosate last November and delayed imposing bans on two other agricultural pesticides despite the fact that the country’s National Hazardous Substances Committee said a ban was necessary to protect consumers.

A ban, particularly on glyphosate, would “severely impact” Thai imports of soybeans, wheat and other agricultural commodities, U.S. Department of Agriculture Undersecretary Ted McKinney warned Thailand Prime Minister Prayuth Chan-Ocha in pushing for the reversal. Imports could be impacted because those commodities, and many others, typically are laced with residues of glyphosate.

Now, newly revealed emails between government officials and Monsanto parent Bayer AG show that McKinney’s actions, and those taken by other U.S. government officials to convince Thailand not to ban glyphosate, were largely scripted and pushed by Bayer.

The emails were obtained through a Freedom of Information Act request by the Center for Biological Diversity, a nonprofit conservation organization. The group sued the U.S. Department of Agriculture (USDA) and the U.S. Department of Commerce on Wednesday seeking additional public records regarding the actions of the departments of trade and agriculture in pressuring Thailand on the glyphosate issue. There are several documents the government has thus far refused to release regarding communications with Bayer and other companies, the organization said.

“It’s bad enough that this administration has ignored independent science to blindly support Bayer’s self-serving assertions of glyphosate’s safety,” said Nathan Donley, a senior scientist at the Center for Biological Diversity. “But to then act as Bayer’s agent to pressure other countries to adopt that position is outrageous.”

Glyphosate is the active ingredient in Roundup herbicides and other brands developed by Monsanto, which are worth billions of dollars in annual sales. Bayer bought Monsanto in 2018 and has been struggling ever since to suppress mounting global concerns about scientific research showing that glyphosate herbicides can cause a blood cancer called non-Hodgkin lymphoma. The company is also fighting off lawsuits involving more than 100,000 plaintiffs who claim their development of non-Hodgkin lymphoma was caused by exposure to Roundup and other Monsanto glyphosate-based herbicides.

Glyphosate weed killers are the most widely used herbicides in the world, in large part because Monsanto developed genetically engineered crops that tolerate being sprayed directly with the chemical. Though useful to farmers in keeping fields free of weeds, the practice of spraying herbicide over the tops of growing crops leaves varying levels of the pesticide in both raw grain and finished foods. Monsanto and U.S. regulators maintain pesticide levels in food and livestock feed are not harmful to humans or livestock, but many scientists disagree and say even trace amounts can be dangerous.

Different countries set different legal levels for what they determine to be safe amounts of the weed killer in food and raw commodities. Those “maximum residue levels” are referred to as MRLs. The U.S. allows the highest MRLs of glyphosate in food when compared to other countries.

If Thailand banned glyphosate, the allowed level of glyphosate in food likely would be zero, Bayer warned U.S. officials.

High-level help

The emails show that in September 2019 and again in early October of 2019 James Travis, senior director for Bayer international government affairs and trade, sought assistance in reversing the glyphosate ban from multiple high-level officials from the USDA and the Office of the United States Trade Representative (USTR).

Among those Bayer sought aid from was Zhulieta Willbrand, who at that time was chief of staff of trade and foreign agricultural affairs at the U.S. Department of Agriculture.  After Thailand’s decision to reverse the ban on glyphosate, Willbrand was hired to work directly for Bayer on international trade matters.

When asked if the assistance from Willbrand while she was a government official helped her get a job at Bayer, the company said that it “ethically strives” to hire people from “all backgrounds” and any inference that she was hired for any reason other than the immense talent she brings to Bayer is false.”

In an email to Willbrand dated Sept. 18, 2019, Travis told her Bayer thought there was “real value” for U.S. government engagement on the glyphosate ban, and he noted that Bayer was organizing other groups to protest the ban as well.

“On our end, we are educating farmer groups, plantations and business partners so that they too can articulate concerns and the need for a rigorous, science based process,” Travis wrote to Willbrand. Willbrand then forwarded the email to McKinney, the USDA’s Under Secretary for Trade and Foreign Agricultural Affairs.

In an Oct. 8, 2019, email string with the subject line “Summary of Thailand Ban – Developments Moving Quickly,” Travis wrote to Marta Prado, deputy assistant U.S. Trade Representative for Southeast Asia and the Pacific, copying Willbrand and others, to update them on the situation.

Travis wrote that Thailand looked poised to ban glyphosate at a “dramatically” accelerated pace, by December 1, 2019. Along with glyphosate, the country was planning to also ban chlorpyrifos, an insecticide made popular by Dow Chemical that is known to damage babies’ brains; and paraquat, a herbicide scientists say causes the nervous system disease known as Parkinson’s.

Travis pointed out the risk a glyphosate ban would pose to sales of U.S. commodities because of the MRL issue and provided other background material the officials could use to engage with Thailand.

“In light of recent developments, we are growing more concerned that some policymakers and lawmakers are rushing the process and will not thoroughly consult all farming stakeholders nor fully consider the economic and environmental impact of banning glyphosate,” Travis wrote to the U.S. officials.

The email exchanges show that Bayer and U.S. officials discussed potential personal motivations of Thai officials and how such intelligence could be useful. “Knowing what motivates her may help with USG counter arguments,” one U.S. official wrote to Bayer about one Thai leader.

Travis suggested that U.S. officials engage much as they had with Vietnam when that country moved in April 2019 to ban glyphosate.

Shortly after the appeal from Bayer, McKinney wrote to the Thailand Prime Minister about the matter. In an Oct. 17, 2019 letter McKinney, who previously worked for Dow Agrosciences, invited Thailand officials to Washington for an in-person discussion about glyphosate safety and the Environmental Protection Agency’s determination that glyphosate “poses no meaningful risk to human health when used as authorized.”

“Should a ban be implemented it would severely impact Thailand’s imports of agricultural commodities such as soybean and wheat,” McKinney wrote. “I urge you to delay a decision on glyphosate until we can arrange an opportunity for U.S. technical experts to share the most relevant information to address Thailand’s concerns.”

A little more than a month later, on Nov. 27, Thailand reversed the planned glyphosate ban. It also said it would delay bans on paraquat and chlorpyrifos for several months.

Thailand did finalize bans of paraquat and chlorpyrifos on June 1, of this year. But glyphosate remains in use. 

When asked about its engagement with U.S. officials on the issue, Bayer issued the following statement:

Like many companies and organizations operating in highly regulated industries, we provide information and contribute to science-based policymaking and regulatory processes. Our engagements with all those in the public sector are routine, professional, and consistent with all laws and regulations.

The Thai authorities’ reversal of the ban on glyphosate is consistent with the science-based determinations by regulatory bodies around the world, including in the United StatesEuropeGermanyAustraliaKoreaCanadaNew ZealandJapan and elsewhere that have repeatedly concluded that our glyphosate-based products can be used safely as directed.

 Thai farmers have used glyphosate safely and successfully for decades to produce essential crops including cassava, corn, sugar cane, fruits, oil palm, and rubber. Glyphosate has helped farmers to improve their livelihoods and meet community expectations of safe, affordable food that is produced sustainably.”