Up Next – Trial In Monsanto’s Hometown Set for August After $2 Billion Roundup Cancer Verdict

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After three stunning courtroom losses in California, the legal battle over the safety of Monsanto’s top-selling Roundup herbicide is headed for the company’s hometown, where corporate officials can be forced to appear on the witness stand, and legal precedence shows a history of anti-corporate judgments.

Sharlean Gordon, an cancer-stricken woman in her 50s, is the next plaintiff currently set for trial.  Gordon v. Monsanto starts Aug. 19 in St. Louis County Circuit Court, located just a few miles from the St. Louis, Missouri-area campus that was the company’s longtime world headquarters until Bayer bought Monsanto last June. The case was filed in July 2017 on behalf of more than 75 plaintiffs and Gordon is the first of that group to go to trial.

According to the complaint, Gordon purchased and used Roundup for at least 15 continuous years through approximately 2017 and was diagnosed with a form of non-Hodgkin lymphoma in 2006. Gordon has gone through two stem cell transplants and spent a year in a nursing home at one point in her treatment. She is so debilitated that it is difficult for her to be mobile.

Her case, like that of the thousands of others filed around the United States, alleges use of Monsanto’s glyphosate-based herbicides caused her to develop non-Hodgkin lymphoma.

“She’s been through hell,” said St. Louis attorney Eric Holland, one of the legal team members representing Gordon.  “She’s horribly injured. The human toll here is tremendous. I think Sharlean is really going to put a face on what Monsanto’s done to people.”

Gordon said the hardest part about preparing for trial is determining what evidence to present to the jury within the three-week time span that the judge has set for the trial.

“This evidence against them, their conduct, is the most outrageous I’ve seen in my 30 years of doing this,” Holland said.  “The things that have gone on here, I want St. Louis juries to hear this stuff.”

That Gordon trial will be followed by a September 9 trial also in St. Louis County in a case brought by plaintiffs Maurice Cohen and Burrell Lamb.

Monsanto’s deep roots in the community, including a large employment base and generous charitable donations throughout the area, could favor its chances with local jurors. But on the flip side, St. Louis is regarded in legal circles as one the most favorable places for plaintiffs to bring lawsuits against corporations and there is a long history of large verdicts against major companies. St. Louis City Court is generally considered the most favorable but St. Louis County is also desired by plaintiffs’ attorneys.

The approach of the August and September trials comes on the heels of a stunning $2 billion verdict issued against Monsanto May 13.  In that case, a jury in Oakland, California awarded married couple Alva and Alberta Pilliod, who both suffer from cancer, $55 million in compensatory damages and $1 billion each in punitive damages. The jury found that Monsanto has spent years covering up evidence that its herbicide causes cancer.

That verdict came only a little more than a month after a San Francisco jury ordered Monsanto to pay $80 million in damages to Edwin Hardeman, who also developed non-Hodgkin lymphoma after using Roundup.  And last summer, a jury ordered Monsanto to pay $289 million to groundskeeper Dewayne “Lee” Johnson who received a terminal cancer diagnosis after using Monsanto herbicides in his job.

Aimee Wagstaff, who was co-lead counsel for Hardeman, is set to try the Gordon case in St. Louis with Holland. Wagstaff said she plans to subpoena several Monsanto scientists to appear on the witness stand to answer questions directly in front of a jury. She and the other attorneys trying the California cases were not able to force Monsanto employees to testify live because of the distance.

MEDIATION MEETING MAY 22

The trial losses have left Monsanto and its German owner Bayer AG under siege. Angry investors have pushed share prices to the lowest levels in roughly seven years,  erasing more than 40 percent of Bayer’s market value. And some investors are calling for Bayer CEO Werner Baumann to be ousted for championing the Monsanto acquisition, which closed in June of last year just as the first trial was getting underway.

Bayer maintains that there is no valid evidence of cancer causation associated with Monsanto’s herbicides, and says it believes it will win on appeal.  But U.S. District Judge Vince Chhabria has ordered Bayer to begin mediation talks aimed at potentially settling the sprawling mass of lawsuits that includes roughly 13,400 plaintiffs in the United States alone. All the plaintiffs are cancer victims or their family members and all allege Monsanto engaged in a range of deceptive tactics to hide the risks of its herbicides, including manipulating the scientific record with ghostwritten studies, colluding with regulators, and using outside individuals and organizations to promote the safety of its products while making sure they falsely appeared to be acting independently of the company.

A May 22 hearing is being held in part to define details of the mediation process. Bayer has indicated that it will comply with the order, but may not yet be ready to consider settling the litigation despite the courtroom losses.

Meanwhile, the litigation that originated in the United States has crossed the border into Canada where a Saskatchewan farmer is leading a class action lawsuit against Bayer and Monsanto making allegations that mirror those in the U.S. lawsuits.

“THE QUEEN OF ROUNDUP”

Elaine Stevick of Petaluma, California was supposed to be the next in line to take on Monsanto at trial. But in his order of mediation, Judge Chhabria also vacated her May 20 trial date. A new trial date is to be discussed at the hearing on Wednesday.

Stevick and her husband Christopher Stevick sued Monsanto in April of 2016 and said in an interview that they are eager to get their chance to confront the company over the devastating damage they say Elaine’s use of Roundup has done to her health. She was diagnosed in December 2014 at the age of 63 with multiple brain tumors due to a type of non-Hodgkin lymphoma called central nervous system lymphoma (CNSL).  Alberta Pilliod, who just won the most recent trial, also had a CNSL brain tumor.

The couple purchased an old Victorian home and overgrown property in 1990 and while Christopher worked on renovating the interior of the house, Elaine’s job was to spray weed killer over the weeds and wild onions that the couple said took over a good portion of the property. She sprayed multiple times a year until she was diagnosed with cancer. She never wore gloves or other protective clothing because believed it to be as safe as advertised, she said.

Stevick is currently in remission but nearly died at one point in her treatment, Christopher Stevick said.

“I called her the ‘queen of Roundup’ because she was always walking around spraying the stuff,” he said.

The couple attended parts of both the Pilliod and Hardeman trials, and said they are grateful the truth about Monsanto’s actions to hide the risks are coming into the public spotlight. And they want to see Bayer and Monsanto start warning users about the cancer risks of Roundup and other glyphosate-based herbicides.

“We want the companies to take responsibility for warning people -even if there is a chance that something would be harmful or hazardous for them, people should be warned,” Elaine Stevick said.

(Published first in Environmental Health News)

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Monsanto Ordered to Pay $2 Billion to Cancer Victims

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After less than two full days of deliberations, a California jury ordered Monsanto to pay just over $2 billion in punitive and compensatory damages to a married couple who both developed non-Hodgkin lymphoma they say was caused by their many years of using Roundup products.

After listening to 17 days of trial testimony, jurors said Monsanto must pay $1 billion to Alberta Pilliod, who was diagnosed with non-Hodgkin lymphoma brain cancer  in 2015, and another $1 billion to her husband Alva Pilliod, who was diagnosed in 2011 with non-Hodgkin lymphoma that spread from his bones to his pelvis and spine. The couple, who are both in their 70s,  started using Roundup in the 1970s and continued using the herbicide until only a few years ago. The jury also awarded the couple a total of $55 million in damages for past and future medical bills and other losses.

In ordering punitive damages, the jury had to find that Monsanto “engaged in conduct with malice, oppression or fraud committed by one or more officers, directors or managing agents of Monsanto”  who were acting on behalf of the company.

Pilliod v. Monsanto is the third Roundup cancer case to go to trial. And it is the third to conclude that Monsanto’s glyphosate-based herbicides can cause cancer and that Monsanto has long known about – and covered up – the risks.

In March, a unanimous jury in federal court in San Francisco ordered Monsanto to pay roughly $80 million in damages for failing to warn plaintiff Edwin Hardeman of the cancer risks of Roundup herbicide. Last August, jurors in state court in San Francisco ordered Monsanto to pay $289 million  in damages to school groundskeeper Dewayne “Lee” Johnson, who is dying of non-Hodgkin lymphoma the jury found was caused by his exposure to Monsanto’s glyphosate herbicides. The judge in that case lowered the total verdict to $78 million and the verdict is now on appeal.

Both Johnson and Hardeman attended closing arguments in the Pilliod trial.

The Pilliod verdict is expected to only further erode the market value of Bayer AG, which purchased Monsanto last summer for $63 billion. Shares have dropped more than 40 percent since the Aug. 10 Johnson verdict was handed down.

More than 13,000 plaintiffs have filed similar lawsuits against Monsanto, alleging the company’s herbicides cause non-Hodgkin lymphoma and the company has hidden the risks.

Evidence laid out in the three trials included numerous scientific studies that showed what plaintiffs’ attorneys said was proof Monsanto’s herbicides can cause non-Hodgkin lymphoma. As well, the attorneys presented jurors with many internal Monsanto communications obtained through court-ordered discovery that show Monsanto has intentionally manipulated the public record to hide the cancer risks.

Among the many revelations that have emerged from the trials:

* Monsanto never conducted epidemiology studies for Roundup and its other formulations made with the active ingredient glyphosate to evaluate the cancer risks for users.

* Monsanto was aware that the surfactants in Roundup were much more toxic than glyphosate alone.

* Monsanto spent millions of dollars on covert public relations campaigns to finance ghostwritten studies and articles aimed at discrediting independent scientists whose work found dangers with Monsanto’s herbicides.

* When the US Agency for Toxic Substances and Disease Registry sought to evaluate glyphosate toxicity in 2015, Monsanto engaged the assistance of EPA officials to delay that review.

* Monsanto enjoyed a close relationship with certain officials within the Environmental Protection Agency (EPA), who have repeatedly backed Monsanto’s assertions about the safety of its glyphosate products.

* The company internally had worker safety recommendations that called for wearing a full range of protective gear when applying glyphosate herbicides, but did not warn the public to do the same.

Pilliod attorney Brent Wisner suggested to jurors in his closing arguments that they consider punitive damages in the range of $1 billion to send a message to Monsanto and Bayer about the need to change the company’s practices.

“The jury saw for themselves internal company documents demonstrating that, from day one, Monsanto has never had any interest in finding out whether Roundup is safe,” Wisner said following the verdict. “Instead of investing in sound science, they invested millions in attacking science that threatened their business agenda.”

Michael Miller, who served with Wisner as co-lead trial counsel said: “Unlike the first two Monsanto trials, where the judges severely limited the amount of plaintiffs’ evidence, we were finally allowed to show a jury the mountain of evidence showing Monsanto’s manipulation of science, the media and regulatory agencies to forward their own agenda despite Roundup’s severe harm to the animal kingdom and humankind.”

Bayer issued a statement after the verdict saying it would appeal: “Bayer is disappointed with the jury’s decision and will appeal the verdict in this case, which conflicts directly with the U.S. Environmental Protection Agency’s interim registration review decision released just last month, the consensus among leading health regulators worldwide that glyphosate-based products can be used safely and that glyphosate is not carcinogenic, and the 40 years of extensive scientific research on which their favorable conclusions are based.

“We have great sympathy for Mr. and Mrs. Pilliod, but the evidence in this case was clear that both have long histories of illnesses known to be substantial risk factors for non-Hodgkin’s lymphoma (NHL), most NHL has no known cause, and there is not reliable scientific evidence to conclude that glyphosate-based herbicides were the “but for” cause of their illnesses as the jury was required to find in this case.”

The damage award breaks down as follows:

Alva Pilliod

Compensatory:

Past economic – $47,296.01

Past non-economic loss – $8 million

Future non-economic loss – $10 million

Punitive damages – $1 billion

Alberta Pilliod

Compensatory:

Past economic – $201,166.76

Past non-economic – $8 million

Future economic  – $2,957,710

Future non-economic – $26 million

Punitive damages – $1 billion

TOTAL – $2.055 billion  

A federal judge has ordered Bayer to start mediation with plaintiffs’ attorneys and a hearing is set for next week in San Francisco on that issue. Several more trials are scheduled over the next year in courts around the United States.

For more updates follow Carey Gillam on Twitter @careygillam 

Sparks to Fly in Closing Arguments at Third Roundup Cancer Trial

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After two costly courtroom losses, lawyers for Monsanto and its German owner Bayer AG on Wednesday were set to make closing arguments in what is the third trial brought by people who blame their cancers on use of Monsanto’s Roundup and other glyphosate-based weed killer brands.

Plaintiffs Alva and Alberta Pilliod, a married couple in their 70s who both have non-Hodgkin lymphoma, claim that Monsanto should be held liable for their illnesses because scientific evidence shows Monsanto’s herbicides can cause cancer and because Monsanto failed to properly warn of the risks.

While Monsanto has maintained that the weight of scientific evidence shows no causal connection between non-Hodgkin lymphoma and its glyphosate herbicides, lawyers for the Pilliods presented scientific evidence during the trial that does show a cancer link. Moreover, the plaintiffs’ attorneys showed jurors a trove of internal Monsanto communications and other records that they said displayed the company’s manipulation of scientific literature, including ghostwriting several papers published in scientific journals. Also among the evidence were records showing Monsanto efforts to influence regulatory agencies, to plant helpful stories in the global news outlet Reuters, and to discredit scientists who determined the company’s products were potentially carcinogenic.

Closing arguments are expected to take most or all of the day and tensions on both sides are high.

On Tuesday, Monsanto filed a motion seeking to head off what it said were likely to be “improper” closing arguments by the lawyers representing the Pilliods. They singled out attorneys Brent Wisner and Michael Baum for criticism, citing various actions.

“Monsanto has a real concern that counsel’s closing argument in this case will be replete with misconduct,” the motion states.

In the motion, Monsanto attorneys said that the Pilliod lawyers “already turned this trial into a circus on multiple occasions,” including by twice putting on gloves before handling a Roundup bottle that contained only water.

In addition, the lawyers “paraded around celebrities and anti-Monsanto advocates Neil Young and Daryl Hannah… engaging in photo-ops right outside the jury room in a clearly improper attempt to influence the jury.”

“If any members of the jury were to perform a simple Google search for Mr. Young or Ms. Hannah, they would quickly learn of their strong anti-Monsanto sentiment,” Monsanto said in its filing, pointing out that four years ago Young produced an album critical of the company called “The Monsanto Years.”

In addition, Monsanto said, “Ms. Hannah’s Twitter account contains numerous tweets about the Roundup trials, including one where she specifically wrote about her experience in court during this trial: “Well that was a trip! – of course I know these skeevy corporate cronies manipulate & lie – but to see it right in front of your eyes is soooo depressing & creepy.”’

Monsanto also said that Wisner’s characterization of the case as “historic” should not be allowed again. Similarly, none of the plaintiffs’ lawyers should be allowed to suggest that the verdict will “change the world or have any effect outside of this case,” Monsanto argued.

The tiny courtroom in Oakland, California is expected to be packed. Dewayne “Lee” Johnson, who won the first trial against Monsanto last summer, is expected to be in attendance, as is Edwin Hardeman, who won the second trial.

Like the two previous trials, internal Monsanto records have provided some drama. On Tuesday, internal communications from last summer were made available by the court indicating clear  White House support for Monsanto. In a report attached to a July 2018 email to Monsanto global strategy official Todd Rands, the strategic intelligence and advisory firm Hakluyt  reported to Monsanto the following:

“A domestic policy adviser at the White House said, for instance: ‘We have Monsanto’s back on pesticides regulation. We are prepared to go toe-to-toe on any disputes they may have with, for example, the EU. Monsanto need not fear any additional regulation from this administration.”

White House Has “Monsanto’s Back on Pesticides,” Newly Revealed Document Says

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Internal Monsanto records just filed in court show that a corporate intelligence group hired to “to take the temperature on current regulatory attitudes for glyphosate” reported that the White House could be counted on to defend the company’s Roundup herbicides.

In a report attached to a July 2018 email to Monsanto global strategy official Todd Rands, the strategic intelligence and advisory firm Hakluyt  reported to Monsanto the following:

“A domestic policy adviser at the White House said, for instance: ‘We have Monsanto’s back on pesticides regulation. We are prepared to go toe-to-toe on any disputes they may have with, for example, the EU. Monsanto need not fear any additional regulation from this administration.”

In the email accompanying the report, Hakluyt’s Nick Banner told Rands the information related to issues both for the United States and for China. The report notes that “professional” staff has “sharp” disagreement with “political” staff on some areas, but that the concerns of some of the professional staffers would not get in the way.

“We heard a unanimous view from senior levels of the EPA (and USDA) that glyphosate is not seen as carcinogenic, and that this is highly unlikely to change under this administration – whatever the level of disconnect between political and professional staffers.”

The report said that a former Environmental Protection Agency (EPA) lawyer and a U.S. Department of Agriculture (USDA) official confirmed that both agencies see the World Health Organization’s International Agency for Research on Cancer (IARC) classification of glyphosate as a probable human carcinogen as “flawed” and incomplete.

“There is little doubt that the EPA supports the use of glyphosate,” the report says. It quotes a current EPA lawyer as saying: “We have made a determination regarding glyphosate and feel very confident of the facts around it. Other international bodies… have reached different conclusions, but in our view the data is just not clear and their decision is mistaken.”

The report also suggests similarities between the Trump Administration’s support for glyphosate and its actions around a pesticide called chlorpyrifos that is the active ingredient in an insecticide made by Dow Chemical, now DowDupont. There is a large body of science showing that chlorpyrifos is very damaging to children’s brain development and that children are most often exposed through the food and water they consume. Chlorpyrifos was due to be banned from agricultural use in 2017 because of its dangers but the Trump administration postponed the ban at the request of Dow and continues to allow its use in food production.  The Hakluyt reports says:

“The way the EPA under the Trump administration has handled Chlorpyrifos might be instructive in how it would handle new science or new developments related to glyphosate.”

At the time the report was delivered to Monsanto last July, Monsanto had just been acquired by the German company Bayer AG and was in the midst of defending itself in the first Roundup cancer trial. That San Francisco case, brought by cancer victim Dewayne “Lee” Johnson, resulted in a unanimous jury verdict handed down in August ordering Monsanto to pay $289 million in damages to Johnson. The judge in the case later lowered the amount to $78 million. A second trial, also held in San Francisco in a separate case, resulted in an $80.2 million verdict for plaintiff Edwin Hardeman.

A third trial is underway now in Oakland, California. Closing arguments are scheduled for tomorrow in that case, brought by a husband and wife who both have non-Hodgkin lymphoma they allege is due to their decades of using Roundup.

The documents that include the Hakluyt report were filed in Alameda County Superior Court by lawyers representing the plaintiffs in the current case – Alva and Alberta Pilliod.

The filing is in response to Monsanto’s effort to tell jurors about a recently released EPA glyphosate assessment in which the agency reaffirmed its finding that glyphosate does not cause cancer. The Pilliod lawyers say the Hakluyt communications with Monsanto speak “directly to the credibility of the 2019 EPA glyphosate evaluation, issued by an administration which holds itself out as favoring Monsanto’s business interests.”

Widening rift reported between political and professional staffers in regulatory agencies

The Hakluyt report to Monsanto also notes that increasingly professional staffers inside “most” federal agencies are feeling at odds with political staffers on issues such as pesticide regulation, climate science and other matters.

“While this appears to be true of various agencies – Health and Human Services, Commerce, Education, Interior, the Food and Drug Administration, and so on- the EPA may be the leading example of this phenomenon.”

The report quotes a prominent Washington DC law firm partner who has “extensive contacts at the EPA as saying:

“In essence, the political leadership favors deregulation and dismisses the expert risk analysis. It is especially averse to theoretical risk analysis, for example, on the risks of glyphosate, about which a scientific consensus is yet to form… With regard to glyphosate, in particular, the differences between political and professional staff are sharp.” 

The professional staffers, those scientists and others who typically have been within an agency for many years through multiple administrations.

Within the EPA, professional staffers are said to have “doubts about glyphosate,” but those doubts “are not shared by the EPA’s leadership.”

The report also provides feedback on Monsanto’s reputation and provides a cautionary note to Bayer, which had just closed the purchase of Monsanto a few weeks before the July 2018 communications:

“Developments in California on glyphosate are striking a chord with the public… The company regularly goes to ‘DEFCON 1’ on the slightest challenge from the environmental, academic or scientific community.”

“Even within the EPA there is unease about your ‘scientific intransigence.'” 

According to the Hakluyt report, an official with the EPA’s Office of Pesticide Programs said: “There is growing unease in this office at what seems like scientific intransigence by Monsanto to give credibility to any evidence that doesn’t fit their view. We would agree with them that such evidence is non-conclusive, but that does not mean that it is without basis.”

For more information and updates follow @careygillam on Twitter.