Consolidation approved for lawsuits against Syngenta and Chevron over herbicide

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A U.S. judicial panel has ordered the pretrial consolidation of dozens of lawsuits against Syngenta and Chevron over allegations that paraquat weed killer, which has been used widely around the world for more than 50 years, causes Parkinson’s disease.

The U.S. Judicial Panel on Multidistrict Litigation said that “to date, 77 actions and potential tag-along actions are pending in sixteen different districts,” and they all involve “common factual issues concerning the propensity of paraquat to cause Parkinson’s Disease.” The cases will include “complex scientific and regulatory issues,” the panel said.

“Centralization will eliminate duplicative discovery; avoid inconsistent pretrial rulings; and conserve the resources of the parties, their counsel and the judiciary,” the panel stated in its order.

The panel determined the cases will be transferred to the federal court in the Southern District of Illinois and assigned to U.S. Judge Nancy Rosenstengel for handling.

Lawyer Majed Nachawati, whose firm is among those representing hundreds of plaintiffs suing Syngenta and Chevron, applauded the decision, and said the litigation is “monumentally important.” It was Nachawati’s firm that requested the MDL.

Syngenta, a Swiss company owned by a larger Chinese chemical company, developed and markets the paraquat-based Gramoxone brand, while Chevron has been a distributor of Syngenta’s paraquat products in the United States.

The formation of the paraquat multidistrict litigation (MDL) underscores the legal threat Syngenta faces in the litigation.  An MDL was also formed for the lawsuits filed against Monsanto over allegations that its Roundup weed killers cause non-Hodgkin lymphoma; ultimately tens of thousands of people sued the company for such claims and Monsanto’s owner, Bayer AG, is now facing settlement payouts of more than $10 billion.

Syngenta said in a statement that it agrees with the decision to coordinate the various federal lawsuits before one judge.

“This will help the parties and the courts proceed in a timely and efficient way,” the company said.

Chevron did not respond to a request for comment.

Used since the ’60s

Paraquat has been used in the United States since 1964 as a tool to kill broadleaf weeds and grasses. Farmers often use paraquat before planting crops or before those crops emerge. It has long been known to be extremely dangerous to anyone who ingests even a small amount, and regulators have issued warnings and placed restrictions on its use because of poisoning risks.

The body of science showing links between Parkinson’s disease and paraquat is less clear, having evolved over time. The EPA does not currently confirm a causal link to Parkinson’s disease. But many scientists say the research showing causation is robust.

Several scientific studies have linked paraquat to Parkinson’s, including a large study of U.S. farmers jointly overseen by multiple U.S. government agencies.

The Agricultural Health Study (AHS), which is backed by numerous U.S. agencies and researchers, has found that “exposure to agricultural pesticides may increase a person’s risk of developing Parkinson’s disease.” And in 2011, AHS researchers reported that participants who used paraquat or another pesticide were “twice as likely to develop Parkinson’s disease” as people who were not exposed to those chemicals.

Syngenta maintains that newer and better research, including by AHS scientists, has discounted a tie between paraquat and Parkinson’s.

In addition to the cases brought on behalf of people suffering from Parkinson’s, additionally, a class action lawsuit was filed in federal court in Iowa on May 3 by a law firm representing people who fear they may get the disease in the future.

The suit seeks “equitable relief in the form of medical monitoring, including, but not limited to, the costs of diagnostic testing” for farmers and others exposed to paraquat who are allegedly at “increased risk” for Parkinson’s, according to the legal filing.

Settlement rumors

What was supposed to be the first trial over allegations that Syngenta’s paraquat causes Parkinson’s has been delayed multiple times and the parties may be nearing a settlement, according to sources close to the case.

The trial in the case of Hoffman V. Syngenta is pending in St. Clair County Circuit Court in Illinois and has had multiple trial dates set and then cancelled, the most recent earlier this month.

The lawyer for the plaintiffs in that case had pronounced publicly that he had internal Syngenta documents that would expose the company’s alleged knowledge of connections between paraquat and Parkinson’s.

But Syngenta steadfastly has denied any such evidence exists.

“Syngenta has great sympathy for the health issues faced by the plaintiffs and others suffering from the debilitating effects of Parkinson’s disease,” the company’s statement reads.  “We care deeply about the health and well-being of farmers and are dedicated to providing them safe and effective products. There is no credible evidence that Paraquat, which has been widely used for more than 55 years, causes Parkinson’s disease.  No peer reviewed study, including the largest study which involved 38,000 farmers, has ever concluded Paraquat causes Parkinson’s disease.  The EPA and other government authorities have extensively analyzed this issue and similarly found no evidence that Paraquat causes Parkinson’s disease. The facts simply do not support the Plaintiffs’ allegations, and we intend to defend this product and our legal position vigorously in court.”

Judge shoots down Bayer’s plan to limit future Roundup legal liability, issues harsh criticism

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(UPDATED May 27 with Bayer statement about new plans)

The federal judge overseeing nationwide Roundup litigation on Wednesday denied Bayer’s latest attempt to limit its legal liability from future cancer claims associated with its glyphosate-based herbicides, citing numerous “glaring flaws” in a settlement proposed to apply to Roundup users who have not yet sued the company but may want to do so in the future.

Saying parts of the plan were “clearly unreasonable” and unfair to cancer sufferers who would be part of the class settlement, U.S. Judge Vince Chhabria castigated Bayer and the small group of lawyers who put the plan together in conjunction with Bayer.

He pointed out that the company has been “losing trials left and right” in claims brought by people suffering from non-Hodgkin lymphoma (NHL) who alleged exposure to Monsanto’s Roundup and other glyphosate-based herbicides were the cause.

Bayer has owned Monsanto since 2018 and has been struggling to defend the cancer claims ever since. Cancer victims have won three trials held to date, and tens of thousands of other plaintiffs have filed lawsuits alleging exposure to Monsanto’s herbicides caused them to develop NHL while Monsanto spent decades hiding the risks.

Elizabeth Cabraser, one of the lawyers who structured the settlement plan, said the proponents were “disappointed” by the ruling and “continue to believe that a multi-billion-dollar class settlement that includes free legal services and substantial compensation to claimants, NHL diagnostic assistance, research into NHL treatment, and Roundup label reform to inform users and the public on all the science regarding a Roundup/NHL link, would provide tremendous financial, health and safety benefits for class members.”

But one of the lead objectors to the plan, lawyer Majed Nachawati, said Cabraser had attempted to “create a sham settlement” that would have harmed the legal rights of “thousands of injured Americans.”

Bayer issued a statement following the judge’s order saying it would consider “the future of glyphosate-based products in the U.S. residential market,” though any changes there would “not affect the availability of glyphosate-based products in markets for professional and agricultural users.” The company said discussions about the future of residential Roundup products was part of a “five-point plan” the company would now pursue.

“The new package of measures, which combine a number of legal and commercial actions, is designed to help the company achieve a level of risk mitigation that is comparable to the previously proposed national class solution,” Bayer said.

Evidence favors plaintiffs, judge says

Judge Chhabria said in his decision that the company’s desire to set up a “science panel” to determine whether or not the herbicides actually cause cancer rather than leave that question to future juries is because of the trial losses the company has so far suffered.

The “reason Monsanto wants a science panel so badly is that the company has lost the ‘battle of the experts’ in three trials, the judge wrote in his order.  “At present, the playing field on the issue of expert testimony related to causation is slanted heavily in favor of plaintiffs.”

The ruling comes after a lengthy hearing last week held to discuss widespread opposition by personal injury attorneys across the United States to the settlement proposal. The proposed plan called for Bayer to put up roughly $2 billion for a series of actions that would help the company avoid future Roundup cancer trials.

The class action settlement would apply to people exposed to Roundup products as of Feb. 3, 2021 who have not yet sued Monsanto or retained a lawyer to do so. The settlement plan would set up a framework for addressing new claims brought by those exposed individuals who develop NHL they attribute to their Roundup exposure. It would apply to people who already have NHL but who have not yet sued the company and to people who develop NHL in the future.

The plan was structured by Bayer in coordination with a small team of plaintiffs’ lawyers who stood to be paid millions of dollars for their participation.

Proponents of the proposed class action plan told the judge it “will save lives,” and provide “speedy compensation” to people who get NHL they blame on Roundup exposure.

But opponents said the proposal actually did little for cancer patients while benefiting Bayer and the lawyers who helped develop the plan.

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

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

Another key problem with the plan, according to critics, is that everyone in the United States who meets the criteria as a potential plaintiff would automatically become part of the class and subject to its provisions if they did not actively opt out of the class within a specified time period. If people did not opt out – even if they didn’t know about the plan – they would be stripped of  the right to seek punitive damages if they ever did file a lawsuit.

“Monsanto tried to buy its own system of justice and it is wonderful that the court saw through what they were trying to do,” said lawyer Gerson Smoger, who is among the opponents.  “The settlement would’ve been a travesty for those who use Roundup.”

Separate from larger settlement

The class action plan, which is separate from an $11 billion settlement of Roundup litigation announced by Bayer last June to address already filed lawsuits, needs approval from Chhabria. The judge has been overseeing the federal multidistrict Roundup litigation involving thousands of plaintiffs from around the United States.

Bayer’s desire to find a settlement is “not surprising because the alternative to settling – continuing to lose trials left and right – is not attractive,” the judge wrote in his ruling.

“In sum, the settlement proposed by these attorneys would accomplish a lot for Monsanto,” he wrote. “It would substantially diminish the company’s settlement exposure and litigation exposure at the
back end, eliminating punitive damages and potentially increasing its chances of winning trials
on compensatory damages. It would accomplish far less for the Roundup users who have not
been diagnosed with NHL—and not nearly as much as the attorneys pushing this deal contend.”

Bayer’s new plan

Bayer said in addition to consideration of withdrawing Roundup from residential use, the company’s  plan includes the following:

  • Creation and promotion of a new website with scientific studies relevant to Roundup safety, and a request that EPA approves corresponding language on Roundup labels.
  • Exploration of the creation of an independent scientific advisory panel comprised of external scientific experts to review scientific information regarding the safety of Roundup. The results would be released publicly and added to the new website.
  • Continuation of settlement discussions and continuing appeals of the two of the three cases lost at trial. The company already exhausted appeals in the first case it lost at trial. Bayer is hoping to get a case to the U.S. Supreme Court and get a favorable ruling on its position that state-based failure-to-warn claims conflict with, and are preempted by, federal law.

Paraquat litigation grows, first trial set for May 10

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

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

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

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

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

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

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

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

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

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

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

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

The newly filed cases are:

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

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

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

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

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

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

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

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

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

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

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

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

Georgia judge decision

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

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

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

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

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

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

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

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

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

Monsanto “ulterior motives”

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

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

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

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

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

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

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.

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.

Appeals court denies Monsanto bid for Roundup case rehearing

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A California appeals court on Tuesday rejected Monsanto’s effort to trim $4 million from the amount of money it owes a California groundskeeper who is struggling to survive cancer that a jury found was caused by the man’s exposure to Monsanto’s Roundup herbicides.

The Court of Appeal for the First Appellate District of California also rejected the company’s request for a rehearing of the matter.  The court’s decision followed its ruling last month slamming Monsanto  for its denial of the strength of the evidence that its glyphosate-based weed killers cause cancer. In that July ruling, the court said that plaintiff Dewayne “Lee” Johnson had presented “abundant” evidence that Monsanto’s weed killer caused his cancer.  “Expert after expert provided evidence both that Roundup products are capable of causing non-Hodgkin’s lymphoma…  and caused Johnson’s cancer in particular,” the appeals court stated in its July decision.

In that decision from last month, the appeals court did, however, cut the damage award owed to Johnson, ordering Monsanto to pay $20.5 million, down from $78 million ordered by the trial judge and down from $289 million ordered by the jury who decided Johnson’s case in August 2018.

In addition to the $20.5 million Monsanto owes Johnson, the company is ordered to pay $519,000 in costs.

Monsanto, which was bought by Bayer AG in 2018, had urged the court to cut the award to Johnson to $16.5 million.

Dicamba decision also stands

Tuesday’s court decision followed a decision issued Monday by the U.S. Court of Appeals for the Ninth Circuit denying a rehearing of the court’s June decision to vacate the approval of the dicamba-based weed killing product Bayer inherited from Monsanto. That June ruling also effectively banned dicamba-based herbicides made by BASF and Corteva Agriscience.

The companies had petitioned for a broader group of judges from the Ninth Circuit judges to rehear the case, arguing that the decision to revoke regulatory approvals for the products was unfair. But the court flatly rejected that rehearing request.

In its June decision, the Ninth Circuit said the Environmental Protection Agency (EPA) had violated the law when it approved the dicamba products developed by Monsanto/Bayer, BASF and Corteva.

The court ordered an immediate ban on use of each of the company’s dicamba products, finding that the EPA “substantially understated the risks” of the dicamba herbicides and “failed entirely to acknowledge other risks.”

The court decision banning the company’s dicamba products triggered an uproar in farm country because many soybean and cotton farmers planted millions of acres of genetically altered dicamba-tolerant crops developed by Monsanto with the intent of treating weeds in those fields with the dicamba herbicides made by the three companies. Similar to “Roundup Ready” glyphosate-tolerant crops, the dicamba-tolerant crops allow farmers to spray dicamba over their fields tyo kill weeds without harming their crops.

When Monsanto, BASF and DuPont/Corteva rolled out their dicamba herbicides a few years ago they  claimed the products would not volatize and drift into neighboring fields as older versions of dicamba weed killing products were known to do. But those assurances proved false amid widespread complaints of dicamba drift damage.

More than one million acres of crops not genetically engineered to tolerate dicamba were reported damaged last year in 18 states, the federal court noted in its June ruling.

Appeals court upholds groundskeeper’s Roundup cancer trial win over Monsanto

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In yet another court loss for Monsanto owner Bayer AG, an appeals court rejected the company’s effort to overturn the trial victory notched by a California school groundskeeper who alleged exposure to Monsanto’s glyphosate herbicides caused him to develop cancer, though the court did say damages should be cut to $20.5 million.

The Court of Appeal for the First Appellate District of California said Monday that Monsanto’s arguments were unpersuasive and Dewayne “Lee” Johnson was entitled to collect $10.25 million in  compensatory damages and another $10.25 million in punitive damages. That is down from a total of $78 million the trial judge allowed.

“In our view, Johnson presented abundant—and certainly substantial— evidence that glyphosate, together with the other ingredients in Roundup products, caused his cancer,” the court stated. “Expert after expert provided evidence both that Roundup products are capable of causing non-Hodgkin’s lymphoma…  and caused Johnson’s cancer in particular.”

The court further noted that “there was overwhelming evidence that Johnson has suffered, and will continue to suffer for the rest of his life, significant pain and suffering.”

The court said that Monsanto’s argument that scientific findings about glyphosate’s links to cancer constituted a “minority view” was not supported.

Notably, the appeals court added that punitive damages were in order because there was sufficient evidence that Monsanto acted with “willful and conscious disregard of others’ safety.”

Mike Miller, whose Virginia law firm represented Johnson at trial along with the Baum Hedlund Aristei & Goldman firm of Los Angeles, said he was cheered at the court’s confirmation that Johnson developed cancer from his use of Roundup and that the court affirmed the award of punitive damages for “Monsanto’s willful misconduct.”

“Mr Johnson continues to suffer from his injuries. We are proud to fight for Mr Johnson and his pursuit of justice,” Miller said.

Monsanto owes annual interest at the rate of 10 percent from April of 2018 until it pays the final judgment.

The reduction in damages is tied in part to the fact that doctors have told Johnson his cancer is terminal and he is not expected to live very much longer. The court agreed with Monsanto that because compensatory damages are designed to compensate for future pain, mental suffering, loss of enjoyment of life, physical impairment, etc…  Johnson’s short life expectancy legally means the future “non-economic” damages awarded by the trial court must be reduced.

Brent Wisner, one of Johnson’s trial attorneys, said the reduction in damages was the result of a “deep flaw in California tort law.”

“Basically, California law does not allow a plaintiff to recover for a shortened life expectancy,” Wisner said. “This effectively rewards a defendant for killing a plaintiff, as opposed to just injuring him. It is madness.”

A spotlight on Monsanto’s conduct

It was just two months after Bayer bought Monsanto, in August 2018, that a unanimous jury awarded Johnson $289 million, including $250 million in punitive damages, finding that not only did Monsanto’s herbicides cause Johnson to develop non-Hodgkin lymphoma, but that the company knew of the cancer risks and failed to warn Johnson. The lawsuit involved two Monsanto glyphosate herbicide products – Roundup and Ranger Pro.

The trial judge lowered the total verdict to $78 million but Monsanto appealed the reduced amount. Johnson cross appealed to reinstate the $289 million verdict.

The Johnson trial was covered by media outlets around the world and put a spotlight on questionable Monsanto conduct. Lawyers for Johnson presented jurors with internal company emails and other records showing Monsanto scientists discussing ghostwriting scientific papers to try to shore up support for the safety of the company’s products, along with communications detailing plans to discredit critics, and to quash a government evaluation of the toxicity of glyphosate, the key chemical in Monsanto’s products.

Internal documents also showed that Monsanto expected the International Agency for Research on Cancer would classify glyphosate as a probable or possible human carcinogen in March of 2015 (the classification was as a probable carcinogen) and worked out a plan in advance to discredit the cancer scientists after they issued their classification.

Tens of thousands of plaintiffs have filed lawsuits against Monsanto making claims similar to Johnson’s, and two additional trials have taken place since the Johnson trial. Both those trials also resulted in large verdicts against Monsanto. Both are also under appeal.

In June, Bayer said it had reached a  settlement agreement with attorneys representing 75 percent of the roughly 125,000 filed and yet-to-be filed claims initiated by U.S. plaintiffs who blame exposure to Monsanto’s Roundup for their development of non-Hodgkin lymphoma. Bayer said it will provide $8.8 billion to $9.6 billion to resolve the litigation. But lawyers representing more than 20,000 additional plaintiffs say they have not agreed to settle with Bayer and those lawsuits are expected to continue to work their way through the court system.

In a statement issued after the court ruling, Bayer said it stands behind the safety of Roundup: “The appeal court’s decision to reduce the compensatory and punitive damages is a step in the right direction, but we continue to believe that the jury’s verdict and damage awards are inconsistent with the evidence at trial and the law. Monsanto will consider its legal options, including filing an appeal with the Supreme Court of California.”

Court frowns on Bayer’s proposed Roundup class-action settlement

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A federal judge on Monday had harsh words for Bayer AG’s plan to delay potential future Roundup cancer lawsuits and block jury trials, criticizing the highly unusual proposal crafted by Bayer and a small group of plaintiffs’ attorneys as potentially unconstitutional.

The “Court is skeptical of the propriety and fairness of the proposed settlement, and is tentatively inclined to deny the motion,” reads the preliminary order issued by Judge Vince Chhabria of the U.S. District Court for the Northern District of California. The judge’s position appears to be a sharp blow to Bayer and the company’s efforts to resolve a legacy of litigation attached to Monsanto, which Bayer bought two years ago.

More than 100,000 people in the United States claim exposure to Monsanto’s glyphosate-based Roundup herbicides caused them to develop non-Hodgkin lymphoma (NHL) and that Monsanto long knew about and covered up the cancer risks.

Three jury trials have been held in the last two years and Monsanto lost all three with juries awarding more than $2 billion in damages. All the cases are now on appeal and Bayer has been scrambling to avoid future jury trials.

Last month Bayer said it had reached agreements to settle the majority of lawsuits currently filed and had crafted a plan for handling cases that likely would be filed in the future. To handle the current litigation Bayer said it will pay up to $9.6 billion to resolve roughly 75 percent of the current claims and will continue working to settle the rest.

In the plan for handling potential future cases, Bayer said it was working with a small group of plaintiffs’  attorneys who stand to make more than $150 million in fees in exchange for agreeing to a four-year “standstill” in filing cases. This plan would apply to people who may be diagnosed in the future with NHL they believe is due to Roundup exposure. In contrast to Monsanto’s settlement of the pending cases against it, settlement of this new “futures” class action requires court approval.

In addition to delaying more trials, the deal calls for the establishment of a five-member “science panel” that would take any future findings on cancer claims out of the hands of  juries. Instead, a “Class Science Panel” would be established to determine whether Roundup can cause non-Hodgkin lymphoma, and if so, at what minimum exposure levels.  Bayer would get to appoint two of the five panel members. If the panel determined there was no causal connection between Roundup and non-Hodgkin lymphoma then the class members would be barred from future such claims.

Several members of the lead law firms who won the three Roundup cancer trials oppose the proposed class action settlement plan, saying it would deprive future plaintiffs of their rights while enriching a handful of lawyers who have not previously been at the forefront of the Roundup litigation.

The plan requires the approval of Judge Chhabria, but the order issued Monday indicated he does not plan to grant approval.

“In an area where the science may be evolving, how could it be appropriate to lock in a
decision from a panel of scientists for all future cases?” the judge asked in his order.

The judge said he will hold a hearing on July 24 on the motion for preliminary approval of the class action settlement. “Given the Court’s current skepticism, it could be contrary to everyone’s interest to delay the hearing on preliminary approval,” he wrote in his order.

Below is an excerpt of the judge’s order:

Fresh talk of a settlement between Bayer and Roundup cancer patients

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There was renewed talk of a potential settlement this week between Bayer AG and tens of thousands of cancer patients as a key court hearing looms next week.

According to a report in Bloomberg, lawyers for Bayer have reached verbal agreements with U.S. lawyers representing at least 50,000 plaintiffs who are suing Monsanto over claims that Roundup and other Monsanto herbicides caused the plaintiffs to develop non-Hodgkin lymphoma.

The details as reported by Bloomberg appear to be mostly unchanged from prior verbal agreements between Bayer and plaintiffs’ attorneys that fell apart during the Coronavirus-related courthouse closings. With the courthouses still closed, trial dates have been postponed, taking the pressure off Bayer.

But a new pressure point looms with next week’s hearing in the appeal of the first Roundup cancer trial. The California Court of Appeal First Appellate District is set to hear oral arguments on cross-appeals in the case of Johnson v Monsanto  on June 2.

That case, which pitted California groundskeeper Dewayne “Lee” Johnson against Monsanto, resulted in a $289 million damage award for Johnson in August 2018. The jury found not only that Monsanto’s Roundup and related glyphosate-based brands presented a substantial danger to people using them, but that there was “clear and convincing evidence” that Monsanto’s officials acted with “malice or oppression” in failing to adequately warn of the risks.

The trial judge in the Johnson case later lowered the damages to $78.5 million. Monsanto appealed even the reduced award, and Johnson cross-appealed seeking reinstatement of the full jury award.

In appealing the verdict, Monsanto asked the court to either reverse the trial decision and enter a judgment for Monsanto or reverse and remand the case for a new trial. At the very least, Monsanto asked the appeals court to reduce the portion of the jury award for “future noneconomic damages” from $33 million to $1.5 million and to wipe out the punitive damages altogether.

The appeals court judges gave an early hint about how they were leaning on the case, notifying lawyers for the two sides that they should be prepared to discuss the question of damages in the June 2 hearing. Plaintiffs’ attorneys have taken that as an encouraging sign that the judges may not be planning to order a new trial.

Under the terms of the settlement that has been discussed for the last several months, Bayer would pay out a total of $10 billion to bring closure to cases held by several large firms, but would not agree to put warning labels on its glyphosate-based weed killers, as had been demanded by some of the plaintiffs’ attorneys.

The settlement would not cover all of the plaintiffs with pending claims. Nor would it cover Johnson or the other three plaintiffs who already won their claims at trial. Monsanto and Bayer have appealed all the trial losses.

Lawyers at the major firms involved in the litigation declined to discuss the current situation.

Bayer officials have denied there is any scientific evidence linking glyphosate herbicides to cancer, but investors have been pushing for a settlement to resolve the litigation. It would be beneficial to Bayer to settle the cases before any adverse ruling by the appellate court, which could further rattle the company’s shareholders. Bayer bought Monsanto in June of 2018. Following the Johnson trial loss in August 2018, the company’s share price plummeted and has remained under pressure.

Frustrated Plaintiffs

The first lawsuits in the Roundup cancer litigation were filed in late 2015, meaning many plaintiffs have been waiting years for resolution. Some plaintiffs have died while they waited, with their cases now being carried forward by family members frustrated at the lack of progress in bringing cases to a close.

Some plaintiffs have been making video messages directed at Bayer executives, calling for them to agree to settlements and to make changes to warn consumers about potential cancer risks of glyphosate-based herbicides such as Roundup.

Vincent Tricomi, 68, is one such plaintiff. In the video he made, which he shared with US Right to Know, he said he has undergone 12 rounds of chemotherapy and five hospital stays fighting his cancer. After achieving a temporary remission, the cancer recurred earlier this year, he said.

“There are so many like me who are suffering and need relief,” said Tricomi.  Watch his video message below: