St. Louis Roundup cancer trial reset for Wednesday as California trial called off

Print Email Share Tweet

The drama continues in the closely watched battle between lawyers defending the former Monsanto Co. and those representing thousands of cancer victims who claim exposure to Monsanto’s Roundup herbicide gave them or a family member non-Hodgkin lymphoma.

On Friday, a California trial was officially postponed after more than a week of jury selection activities and the seating of 16 jurors. Instead of proceeding with opening statements, that trial has now been postponed indefinitely, with a case management conference set for March 31.

Meanwhile, the multi-plaintiff trial that was postponed just before opening statements last week in St. Louis has been rescheduled to open next Wednesday, sources close to the litigation said.

The St. Louis trial is particularly problematic for Monsanto because it involves four plaintiffs, including one woman whose husband died of non-Hodgkin lymphoma, and because the judge has ruled that the trial can be broadcast over the Courtroom View Network and through feeds to television and radio stations. Lawyers for Monsanto’s German owner Bayer AG argued against broadcasting the trial, saying the publicity endangers its executives and witnesses.

Several trials have been pulled off the docket over the last several weeks as Bayer, which bought Monsanto in 2018, has drawn closer to a global settlement of what amounts to well more than 50,000 claims – some estimates are more than 100,000. Bayer is looking to pay out roughly $10 billion in total to settle the claims, according to sources close to the negotiations.

The lawsuits all allege that the Monsanto was well aware of scientific research demonstrating there were human health risks tied to its glyphosate-based herbicides but did nothing to warn consumers, working instead to manipulate the scientific record to protect company sales.

Bayer investors are eager for the company to put an end to the litigation and head off more trials and the publicity that each brings.  Bayer’s lawyers have reportedly negotiated settlement payout for the clients of several large firms, but have been unable to reach agreement with two large plaintiffs’ firms – The Miller Firm of Virginia and Weitz & Luxenberg of New York.  The Miller firm represents the plaintiffs in both the California case just pulled from the docket and in the St. Louis case just put back on.

Shares rose last week when the St. Louis trial was abruptly postponed as lead attorneys from the two plaintiffs’ firms – Mike Miller and Perry Weitz – left the courthouse just before opening statements were scheduled to begin in order to continue last-minute talks with Bayer attorneys.

The postponement has frustrated onlookers, including the crew from Courtroom View Network, which remained at the courthouse this week awaiting news of when the trial might resume. They were told Friday morning only that the trial would not resume on Monday. They learned later it would resume Wednesday instead.

The first three trials went badly for Monsanto and Bayer as outraged juries awarded over $2.3 billion in damages to four plaintiffs. Trial judges lowered the jury awards to a total of roughly $190 million, and all are under appeal.

Those trials turned a public spotlight on internal Monsanto records  that show how Monsanto engineered scientific papers proclaiming the safety of its herbicides that falsely appeared to be created solely by independent scientists; used third parties to try to discredit scientists reporting harm with glyphosate herbicides; and collaborated with Environmental Protection Agency officials to protect Monsanto’s position that its products were not cancer-causing.

Bayer settlement of Roundup cancer claims still up in air

Print Email Share Tweet

Jurors selected to hear a St. Louis case pitting cancer victims against Monsanto have been told the trial that was postponed indefinitely last week could resume as early as next Monday, a court spokesman said, an indication that efforts by Monsanto owner Bayer AG to end nationwide litigation over the safety of Roundup herbicides is still in flux.

In another sign that a deal has yet to be secured,  jury selection in a separate Roundup cancer trial – this one in California – was continuing this week. The trials in St. Louis and California involve plaintiffs who allege they or their loved ones developed non-Hodgkin lymphoma because of exposure to glyphosate-based herbicides made by Monsanto, including the popular Roundup brand. Tens of thousands of plaintiffs are making similar claims in lawsuits filed around the United States.

Bayer bought Monsanto in June of 2018 just as the first trial in the mass tort litigation was getting underway.  Bayer’s share price was hammered after a unanimous jury found that Monsanto’s herbicides were the cause of the plaintiff’s cancer in that case and that Monsanto had hidden evidence of the cancer risk from the public.

Two additional trials results in similar jury findings and drew worldwide media attention to damning internal Monsanto documents that show the company engaged in a number of deceptive practices over many decades to defend and protect the profitability of its herbicides.

Bayer investors are eager for the company to put an end to the litigation and head off more trials and the publicity that each brings.  Shares rose last week when the St. Louis trial was abruptly postponed as attorneys for the plaintiffs huddled with attorneys for Bayer and indicated a global settlement of the litigation was near.

Numbers of $8 billion-$10 billion have been floated for weeks by litigation sources as a potential settlement total for the mass of cases that has dogged Bayer ever since it bought Monsanto for $63 billion.

Bayer has already negotiated settlement terms with several of the law firms leading the litigation, but has been unable to reach an agreement with the plaintiffs’ firms of Weitz & Luxenberg and The Miller Firm. Together the two firms represent close to 20,000 plaintiffs, making their participation in a settlement a key element to a deal that will appease investors, said sources close to the litigation.

Sources said that the two sides were “very close” to a deal.

In separate, but related news, The Kellogg Company said this week that it was moving away from using grains that have been sprayed with glyphosate shortly before harvest as ingredients in its consumer snacks and cereals. The practice of using glyphosate as a desiccant was marketed by Monsanto for years as a practice that could help farmers dry out their crops before harvesting, but food product testing has demonstrated that the practice commonly leaves residues of the weed killer in finished foods like oatmeal.

Kellogg’s said it is “working with our suppliers to phase out using glyphosate as pre-harvest drying agent in our wheat and oat supply chain in our major markets, including the U.S., by the end of 2025.”

St. Louis Roundup trial postponed as large settlement appears near

Print Email Share Tweet

Update – Statement from Bayer: “The parties have reached an agreement to continue the Wade case in Missouri Circuit Court for St. Louis. The continuance is intended to provide room for the parties to continue the mediation process in good faith under the auspices of Ken Feinberg, and avoid the distractions that can arise from trials.  While Bayer is constructively engaged in the mediation process, there is no comprehensive agreement at this time. There also is no certainty or timetable for a comprehensive resolution.”

The highly anticipated opening of  what would have been a fourth Roundup cancer trial was postponed indefinitely on Friday amid settlement negotiations between Monsanto owner Bayer AG and attorneys representing thousands of people who claim their cancers were caused by exposure to Monsanto’s glyphosate-based herbicides.

St. Louis City Circuit Court Judge Elizabeth Hogan issued an order stating only “cause continued.” The order came after lead lawyers from the plaintiffs’ firms of New York-based Weitz & Luxenberg and The Miller Firm of Virginia left Hogan’s courtroom unexpectedly shortly before opening statements were due to begin at mid-morning Friday. Sources close to the legal teams initially said opening statements were pushed back until early afternoon to allow for time to see if the plaintiffs’ attorneys and lawyers for Bayer could finalize a resolution that would settle tens of thousands of lawsuits. But by early afternoon the proceedings were called off and it was widely speculated that a deal had been achieved.

Numbers of $8 billion-$10 billion have been floated for weeks by litigation sources as a potential settlement total for the mass of cases that has dogged Bayer ever since it bought Monsanto in June of 2018 for $63 billion. The company’s share prices has been sharply depressed by repeated trial losses and large jury awards against the company in the three trials held to date.

Many more trials were to be held over the next few weeks and months, pressuring Bayer to settle the cases in time to assuage investors at its annual shareholders’ meeting in April.

Bayer officials have confirmed that more than 42,000 plaintiffs have filed lawsuits against Monsanto. But litigation sources say there are now more than 100,000 plaintiffs lined up with claims, though the current total number of actual filed claims is unclear.

The Weitz firm and the Miller firm combined represent the claims of roughly 20,000 plaintiffs, according to sources close to the firms. Mike Miller, who heads the Miller firm, is the lead attorney in the St. Louis trial that had been set to open Friday.

Miller has been a high-profile hold-out in the settlement talks with Bayer as several other lead plaintiffs’ attorneys have already signed on to a deal with the German pharmaceutical giant. Bayer needs to be able to achieve a resolution with a majority of the outstanding claims in order to appease disgruntled investors.

Mediator Ken Feinberg said last week that it was unclear if there could be a global settlement achieved without Miller. Miller was seeking “what he thinks is appropriate compensation,” Feinberg said. U.S. District Judge Vince Chhabria appointed Feinberg to act as a mediator between Bayer and the plaintiffs’ attorneys last May.

The jury for the St. Louis trial had already been selected and the four plaintiffs and their family members were present Friday morning, lining the front row of the small courtroom.

Monsanto’s lawyers made a bid earlier Friday to block broadcasting of the trial by local television and radio stations but Judge Hogan ruled against the company. Friday’s trial would have been the first to take place in the St. Louis area, where Monsanto was headquartered for more than 100 years.

The first three trials went badly for Monsanto and its German owner Bayer AG as outraged juries awarded over $2.3 billion in damages to four plaintiffs. Trial judges lowered the jury awards to a total of roughly $190 million, and all are under appeal.

The trials have turned a public spotlight on internal Monsanto record  that showed how Monsanto engineered scientific papers proclaiming the safety of its herbicides that falsely appeared to be created solely by independent scientists; used third parties to try to discredit scientists reporting harm with glyphosate herbicides; and collaborated with Environmental Protection Agency officials to protect Monsanto’s position that its products were not cancer-causing.

Dust-up over media ahead of Roundup cancer trial opening

Print Email Share Tweet

Lawyers representing the opposing sides of the upcoming Monsanto Roundup cancer trial due to open Friday in St. Louis were huddled away from the courthouse on Thursday amid speculation that settlement talks between the plaintiffs attorneys and Monsanto owner Bayer AG were at a critical juncture.

In the absence of the attorneys, confusion over media access to trial proceedings erupted at a hastily called hearing at the St. Louis City Circuit Court after a clerk for Judge Elizabeth Hogan erroneously informed reporters that if they planned to observe the trial proceedings via a live feed from Courtroom View Network (CVN) they would need individual approval from the court. Reporters were told they must make an application for a court hearing on whether or not they could watch the live feed the court has agreed to allow CVN to provide.

CVN then sent a notice out to journalists alerting them to the fact that they may be barred from simply watching the proceedings remotely: “We’ve been informed that the Court has seemingly imposed a requirement that any member of the media wishing to watch the Roundup video feed via CVN must obtain specific permission from the court to do so. Our attorney is trying to contact the judge ASAP to resolve this, and hopefully it will be resolved,” said an email sent from CVN to journalists.

Additionally, the hearing was to take up the matter of whether or not CVN can provide pool access to certain broadcast news stations. Radio and television outlet that want to share some of the proceedings with their audiences will need to make individual pleas to the judge.

The hearing was aborted because attorneys for Bayer, who have objected to broadcasting the trial, were not present. Now the pool access issue is to be taken up Friday morning before opening statements in the trial, Gross said.

The limitations on simply watching the trial announced by the judge’s clerk turned out to be inaccurate, according to court spokesman Thom Gross. There are sharp limits on those who will be watching, however. No “downloading, recording, rebroadcasting or reposting of any content, including screen shots” is allowed.

The debate over how much visibility the trial could receive has been a lingering concern for Bayer as it seeks to resolve tens of thousands of lawsuits filed against its Monsanto unit alleging Roundup and other glyphosate-based herbicides cause non-Hodgkin lymphoma. The plaintiffs additionally allege that Monsanto should have warned users but instead covered up the risks of its herbicides.

Evidence in three trials concluded to date has sparked global outrage over the corporate conduct of Monsanto, as plaintiffs’ attorneys have introduced internal Monsanto records in which company executives discussed ghostwriting scientific literature, secretly deploying third parties to discredit independent scientists, and benefiting from cozy relationships with officials at the Environmental Protection Agency.

Bayer has said that televising the St. Louis trial could endanger its employees, including former Monsanto executives.

Several of the plaintiffs’ law firms that spear-headed the nationwide litigation have agreed to cancel or postpone multiple trials, including two that involved young children with cancer, as part of the settlement talks with Bayer.

Bayer had made no secret of its desire to settle the mass tort litigation before any more trials take place. But one of the largest caseloads of plaintiffs is held by Virginia lawyer Mike Miller, and Miller has thus far refused to postpone the trials for his plaintiffs, apparently shrugging off settlement offers. Miller’s firm is providing lead counsel for the St. Louis trial and another in California that is still in the process of jury selection.

The Miller firm has several more trials coming up for its plaintiffs.

Monsanto loses effort to head off St. Louis trial that starts next week

Print Email Share Tweet

Monsanto’s German owner Bayer AG has failed in efforts to head off a Missouri trial over claims brought by cancer patients that Monsanto’s herbicide caused their diseases and Monsanto hid the risks.

In a ruling handed down Wednesday, St. Louis City Judge Elizabeth Byrne Hogan of Missouri’s 22nd Circuit ruled that the company wasn’t entitled to summary judgment in the case of Wade v. Monsanto, which is scheduled to go to trial Tuesday.

Hogan further frustrated Monsanto by ordering Thursday that the trial could be audio and video recorded and broadcast to the public. Lawyers for Monsanto had argued that the trial should not be broadcast because the publicity could endanger witnesses and former Monsanto executives.

Judge Hogan ruled that the trial would be open to audio and video recording and broadcast from its beginning on Jan 21 through the end of the trial, with several exceptions, including no coverage of jury selection.

The trial will be the first to take place in St. Louis, the former hometown for Monsanto before the company was acquired by Bayer in June 2018.

Monsanto lost the first three trials that have so far taken place. In those three trials, a total of four plaintiffs claimed exposure to the company’s glyphosate-based herbicides caused them each to develop types of non-Hodgkin lymphoma and that Monsanto covered up evidence of the risks.

Representatives for both sides have been working with a court-appointed mediator since last May to try to resolve the litigation. As settlement talks have progressed, Bayer has successfully negotiated arrangements with certain plaintiffs’ law firms to postpone and/or cancel several trials, including one that had been set to get underway in the St. Louis area the last week of January. Among the cases pulled from the trial schedule are two cases involving cancer-stricken children and a case involving a woman who has suffered extensive debilitation from her bout with non-Hodgkin lymphoma.

But while other firms pull back from trial plans, the Virginia-based Miller Firm, which is the lead counsel for the group of plaintiffs in the Wade case, has pushed forward. The Miller Firm already has two trial victories under its belt, having represented the first trial plaintiff, Dewayne “Lee” Johnson, and the most recent trial plaintiffs, Alva and Alberta Pilliod. The other trial that has thus far taken place, on claims brought by Edwin Hardeman, was handled by two separate firms.

In addition to the Wade case, the Miller firm has another trial due to start in California that will overlap with the Wade case if both proceed as planned.

Several of the lead law firms involved in the litigation stopped accepting new clients months ago, but other attorneys around the United States have continued to advertise, drawing in more potential plaintiffs. Some sources say the list of plaintiffs now totals more than 100,000 people. Last year Bayer reported to investors that the list of plaintiffs in the Roundup litigation totaled more than 42,000.

In ruling against Monsanto’s bid for summary judgment, Judge Hogan shot down an assortment of arguments asserted by the company’s lawyers, including Monsanto’s repeated effort to claim that because the Environmental Protection Agency (EPA) concludes glyphosate is not carcinogenic, a federal legal  preemption exists.

“Defendant has not cited a single case that holds that the EPA’s regulatory scheme preempts claims such as Plaintiffs’,” Judge Hogan said in her ruling. “Every court presented with this issue has rejected it.”

With respect to the company’s argument that a jury should not be entitled to consider punitive damages, the judge said that would be a matter for consideration after seeing evidence presented at trial. She wrote: “Defendant argues that because Roundup has been consistently approved by the EPA and other regulatory agencies, its conduct cannot be considered willful, wanton or reckless as a matter of law. Plaintiffs respond that they will present evidence of Monsanto’s reckless disregard for the safety of others, and despicable and vile conduct, which has been held sufficient to submit the claim of punitive damages to the jury in other cases that have been tried. Defendant is not entitled to summary judgment on punitive damages.”

Anticipation Builds For Settlement of Roundup Cancer Claims

Print Email Share Tweet

Anticipation is building around the belief that there could soon be an announcement of at least a partial settlement of U.S. lawsuits pitting thousands of U.S. cancer patients against Monsanto Co. over allegations the company hid the health risks of its Roundup herbicides.

Investors in Bayer AG, the German company that bought Monsanto in 2018,  are keeping a close eye on the status of three trials currently still on the docket to get underway this month. Six trials were initially set to take place in January, but three have recently been “postponed.” Sources say the postponements are part of the process of obtaining an overall settlement with several plaintiffs’ attorneys who have large numbers of cases pending.

The three trials still on the docket for this month are as follows: Caballero v. Monsanto, set to start Jan. 17 in Contra Costa Superior Court in California; Wade v. Monsanto, set to start Jan. 21 in St. Louis City Circuit Court in Missouri; and Cotton v. Monsanto, scheduled for Jan. 24 in Riverside Superior Court in California.

A hearing scheduled for today in the Caballero case was called off, but another hearing is set for Thursday before the trial gets underway Friday, according to court filings. Possibly underscoring the fluidity of the situation, at least one of the key witnesses expected to testify in the case has been told he will not likely be needed, according to a source close to the litigation.

In St. Louis, Monsanto’s former hometown, the court calendar calls for the Wade trial to get underway in front of Judge Elizabeth Byrne Hogan a week from today, said court spokesman Thom Gross.

Plaintiffs’ attorney Mike Miller, who represents plaintiff Kathleen Caballero as well as multiple plaintiffs in the Wade trial, said he was looking forward to the trials for these “victims of Monsanto’s deceit.” Miller said rumors that his trials would be postponed are false and he fully intends for the trials to go forward.

Miller and other attorneys involved in the litigation have declined to answer questions about a potential settlement.

But analysts who follow Bayer say that settlement discussions are looking at a potential deal for $8 billion to settle current cases with $2 billion set aside for future needs.

After losing three out of three trials and facing thousands of claims by cancer victims who allege their diseases were caused by exposure to Monsanto’s glyphosate-based herbicides, Monsanto’s German owner Bayer AG has been working for months to avoid any additional trials. Bayer was successful in delaying several trials slated for late 2019 and the three that were planned for January before being postponed. Two of those cases involved children stricken with non-Hodgkin lymphoma and the third was brought by a woman suffering from non-Hodgkin lymphoma.

There are many complicating factors hindering resolution of the litigation, including the fact that plaintiffs’ attorneys with no connection to the plaintiffs’ leadership team continue to advertise for new clients to add to the pool, thus potentially thinning the payouts for plaintiffs who have been awaiting their day in court for years.

In working toward a settlement Bayer is hoping to appease investors unhappy with the mass tort liability Bayer took on in acquiring Monsanto, and hopes to avoid more publicity surrounding damning evidence that was introduced during the previous trials indicating that Monsanto knew of the cancer risks of its weed killing products but failed to warn consumers. The revelations have triggered outrage around the world and prompted moves to ban the glyphosate-based herbicides.

Earlier this month the town of Dennis, Massachusetts announced it will no longer allow use of the herbicide glyphosate on town-owned property. It is one of a number of communities in the Cape Cod area that have recently said they will restrict or ban glyphosate herbicides use. Numerous other cities and school districts around the United States have said they are looking at, or have already decided to,  ban or restrict the use of glyphosate-based herbicides.

Internationally, Vietnam and Austria have said they will ban glyphosate while Germany has said it will ban the chemical by 2023. French leaders also have said they are banning glyphosate-based herbicides.

The Environmental Protection Agency (EPA) has sided with Monsanto and Bayer in saying there is no evidence to support claims that glyphosate-based herbicides can cause cancer.

St. Louis Monsanto Roundup Trial Postponed, Bayer stock climbs

Print Email Share Tweet

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

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

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

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

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

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

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

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

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

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

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

Attorney for Roundup Cancer Plaintiffs Arrested on Criminal Charges

Print Email Share Tweet

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

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

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

Litzenburg was the attorney for Dewayne “Lee” Johnson leading up to Johnson’s 2018 trial against Monsanto, which resulted in a $289 million jury award in Johnson’s favor. The trial was the first of three that have taken place against Monsanto over allegations that the company’s glyphosate-based herbicides such as Roundup cause non-Hodgkin lymphoma. Monsanto, and its German owner Bayer AG, have lost all three trials to date but are appealing the verdicts.

Though Litzenburg had been responsible for preparing Johnson for trial, he was not allowed to participate during the actual event because of concerns about his behavior held by The Miller Firm, which was his employer at the time.

The Miller firm subsequently fired Litzenburg and filed a lawsuit alleging Litzenburg engaged in self-dealing, and “disloyal and erratic conduct.” Litzenburg responded with a counter-claim. The parties recently negotiated a confidential settlement.

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

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

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

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

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

Litzenburg wrote in the email that the $200 million consulting agreement for himself and an associate was “a very reasonable price,” according to the criminal complaint. At least two such “associates” were involved in the scheme, according to the complaint.

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

According to the complaint, Litzenburg was recorded as saying: “The way that I guess you guys will think about it and we’ve thought about it too is savings for your side. I don’t think if this gets filed and turns into mass tort, even if you guys win cases and drive value down… I don’t think there’s any way you get out of it for less than a billion dollars. And so, you know, to me, uh, this is a fire sale price that you guys should consider…”

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

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

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

Former Monsanto CEO Ordered to Testify at Roundup Cancer Trial

Print Email Share Tweet

Former Monsanto Chairman and CEO Hugh Grant will have to testify in person at a St. Louis-area trial set for January in litigation brought by a cancer-stricken woman who claims her disease was caused by exposure to the company’s Roundup herbicide and that Monsanto covered up the risks instead of warning consumers.

Grant, who led St. Louis-based Monsanto from 2003 until the company was sold to Bayer AG of Germany in June of 2018, and spent a total of 37 years working for Monsanto, was subpoenaed by lawyers for plaintiff Sharlean Gordon, to testify at a trial slated to begin Jan. 27 in St. Louis County Circuit Court.

The Gordon trial was originally scheduled for August of this year but was delayed as part of an effort to undertake settlement talks between Bayer and lawyers for tens of thousands of plaintiffs who are suing Monsanto with claims similar to Gordon’s.

Two other trials set for January, both in courts in California and both involving children diagnosed with cancer, were recently postponed due to continued settlement talks.

Bayer estimates that there are currently more than 42,000 plaintiffs alleging that exposure to Monsanto’s Roundup and other glyphosate-based herbicides made by Monsanto caused them or their loved ones to develop non-Hodgkin lymphoma.

Grant did not have to testify live at the three Roundup cancer trials that have taken place so far because they were all held in California. But because Grant resides in St. Louis County, plaintiffs’ attorneys saw an opportunity to get him on the stand in person.

Attorneys for Grant have been fighting the subpoena, arguing that he is not a scientist or regulatory expert and he has already provided information in deposition testimony. Grant has also argued that he should not have to testify because he plans to be out of the country starting February 9.

But in a decision handed down Dec. 5, a special master appointed to the case sided with Gordon’s attorneys and ruled that Grant was not entitled to an order quashing the subpoena for trial testimony.

“Mr. Grant appeared for interviews on public radio representing that Roundup is not a carcinogen; in earnings calls for investors Mr. Grant personally responded that the classification of glyphosate as a probable carcinogen was ‘junk science;’ in 2016 Mr. Grant personally lobbied the EPA Administrator and the Agricultural Committee Chair of the topic of glyphosate,” the special master’s order states.

“Although Mr. Grant does not have scientific knowledge that doubtless will be a significant component to this lawsuit, he was CEO of Monsanto for 15 years and took part in presentations, discussions, interviews and other appearances for Monsanto as CEO in which the topics of Roundup and glyphosate were explained, discussed and defended,” Special Master Thomas Prebil said in his decision.

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

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

All are being appealed and none of the winning plaintiffs have yet received any of the monetary awards the juries ordered.

JOHNSON APPEAL DELAYED

The first plaintiff to win against Monsanto is a California school groundskeeper from California. Dewayne “Lee” Johnson was awarded $289 million by a jury in August 2018. The trial judge later lowered the damages to $78 million. Monsanto appealed seeking to overturn the jury decision and Johnson cross-appealed seeking to reinstate the full award of $289 million.

The California Court of Appeal 1st Appellate District said it would act swiftly in ruling on the consolidated appeals and lawyers for both sides initially hoped to have a ruling by the end of this year. But the case has been delayed for several weeks as both sides awaited a date for oral arguments. On Dec. 3, Monsanto’s attorneys asked the court not to schedule oral arguments in January or February, as several new Roundup trials are set for those months.  Johnson’s attorneys opposed that request for further delay.

On Friday, the court issued an order stating that while it agreed with Johnson about the need to
“schedule oral argument as soon as practicable,” it was unlikely oral arguments could be held until March of April “given the number and length of all the briefs to be considered, the outstanding motions that the court must rule on when considering the merits of the appeal,” and other factors.

Six Monsanto Roundup Cancer Trials Set for January

Print Email Share Tweet

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

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

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

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

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

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

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

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

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

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