Attorney for Roundup Cancer Plaintiffs Arrested on Criminal Charges

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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

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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

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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.

Cancer Taking Toll As New Roundup Trials Near

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For the last five years, Chris Stevick has helped his wife Elaine in her battle against a vicious type of cancer that the couple believes was caused by Elaine’s repeated use of Monsanto’s Roundup herbicide around a California property the couple owned. Now the roles are reversed as Elaine must help Chris face his own cancer.

Chris Stevick, who often mixed Roundup for his wife and tested the sprayer used to dispense the weed killer, was diagnosed last month with chronic lymphocytic leukemia (CLL), a type of non-Hodgkin lymphoma. Unlike Elaine’s aggressive type of NHL known as central nervous system lymphoma, Chris’s cancer is a type that tends to grow slowly. He was diagnosed after a physical examination showed abnormalities in his blood and prompted further tests.

The diagnosis has prompted a scramble among lawyers involved in the sprawling Roundup products liability litigation given that the Stevick’s lawsuit against Monsanto is set as the next federal case to go to trial.

With the trial date of Feb. 24, 2020 looming, Elaine Stevick’s lawyers asked Monsanto’s attorneys if the company would agree that Chris Stevick’s cancer claims could be joined with his wife’s for the February trial in San Francisco. The attorneys argue that at the very least Chris Stevick’s diagnosis is admissible evidence at his wife’s trial as additional proof of their claim that Roundup exposure can cause non-Hodgkin lymphoma.

Monsanto’s attorneys oppose the joining of the claims and say that Elaine Stevick’s trial should only proceed in February if there is no mention made of her husband’s cancer. Alternatively, Monsanto requests that the February trial be delayed and the company be given time to do discovery into Chris Stevick’s diagnosis.

The issue is to be discussed in a case management conference Thursday, which the Stevicks plan to attend. U.S. District Judge Vince Chhabria said ahead of the hearing that he is “tentatively of the view” that a continuance of the trial will be necessary if the couple wants to try their claims together. He also said that if Elaine Stevick proceeds on her exposure claims alone, evidence of her husband’s cancer diagnosis “will likely be inadmissible….”

If the judge confirms that joining the claims would indeed require a continuance, Elaine Stevick will choose to proceed on her own in February, said attorney Mike Miller.

Earlier this year another husband and wife suffering from cancer, Alva and Alberta Pilliod, were awarded more than $2 billion in damages in their lawsuit against Monsanto, though the judge in the case lowered the damage award to $87 million. The Pilliod trial was the third Roundup products liability trial to take place and the third in which juries found that Monsanto’s Roundup herbicides cause non-Hodgkin lymphoma and that the company has hidden the risks from consumers. Alberta Pilliod’s cancer has recently returned and it is not clear she will survive much longer, according to her attorneys.

None of the people so far awarded money in the three trials have received any payout from Monsanto as its owner Bayer AG appeals the verdicts.

There are currently more than 42,000 people suing Monsanto in the United States, alleging that Monsanto’s herbicides cause non-Hodgkin lymphoma. The lawsuits additionally allege that the company was well aware of the dangers but did nothing to warn consumers, working instead to manipulate the scientific record.

The Stevick trial is only one of at least six in five different venues slated for January and February, with each expected to last several weeks. Many lawyers are involved in more than one of the cases, and all have overlapping expert witnesses, setting up organizational and resource challenges for both sides. Multiple trials that had been set for this fall were delayed until next year.

In the meantime, both sides of the litigation are keeping an eye on the California Appellate Court, where lawyers for plaintiff Dewayne “Lee” Johnson and lawyers for Monsanto are awaiting a date for oral arguments in their cross appeals. Monsanto is seeking to overturn the unanimous jury decision handed down against the company in August 2018. The trial judge in that case lowered the jury award from $289 million to $78 million and Johnson is appealing for the reinstatement of the full $289 million.

Johnson was the first to go to trial against Monsanto and his victory sent share prices in Bayer plummeting just two months after Bayer closed the purchase of Monsanto in June 2018. Johnson was  granted “trial preference” due to predictions by his doctors that he did not have long to live. Johnson has outlived those predictions, though his health continues to decline.

As the litigation drags on, several plaintiffs have died or are nearing death, or have suffered such extreme health problems that their ability to undergo the rigors of depositions and trials has become limited.

In some cases, family members are being substituted as plaintiffs for deceased loved ones. In legal parlance, the notices to the courts are titled “Suggestion of Death.”

Another St. Louis Roundup Cancer Trial Officially Postponed Until 2020

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A trial set to start next week over claims that Monsanto’s Roundup weed killers cause cancer has been postponed until at least next year, according to a judge’s ruling on Friday.

The trial would have been the first of its kind to take place in the St. Louis area, Monsanto’s hometown before the company sold to German pharmaceutical giant Bayer AG last year.

Two previously scheduled trials in St. Louis area were also postponed until next year. The status of the trial that had been due to start next week  – Walter Winston, et al v. Monsanto – had already been in doubt for weeks but the delay was made official Friday:

“Whereas the parties in the above-captioned case have requested that the Court take the trial in the above-captioned case off calendar, it is hereby ORDERED that the trial, scheduled for october 15, 2019 will not begin as scheduled. Cause set for status on Feb 10, 2020 @ 9:00 a.m. SO ORDERED: JUDGE MICHAEL MULLEN.”

The Winston case has been unraveling a thread at a time over issues of venue. The case was filed in St. Louis City Court but last month Mullen, who is a St. Louis Circuit Court Judge,  transferred all plaintiffs except Winston from the city court to St. Louis County. Lawyers for the plaintiffs then sought to have the trial take place in the county court on Oct. 15, a position Monsanto opposed. Last week, a judge in the county ruled against the plaintiffs bid for that trial date.

Lawyers for the plaintiffs are now asking for a trial date later this year or early next year. With the transfer of the 13 plaintiffs out of the Winston case in St. Louis City, the case in St. Louis County is now titled Kyle Chaplick, et al v. Monsanto.

“Monsanto’s repeated attempts to avoid the trial…  should be rejected, and the case should be set for trial in 2019 or as soon thereafter as is practicable,”‘ the plaintiffs’ attorneys stated in a motion filed Oct. 3.

The 14 plaintiffs who were in the Winston case are among more than 18,000 people in the United States suing Monsanto claiming that exposure to the company’s glyphosate-based herbicides caused them to develop non-Hodgkin lymphoma and that Monsanto hid the risks associated with its weed killers.

Three juries in three trials over similar claims have found in favor of plaintiffs and ordered large punitive damages against Monsanto.

Bayer and lawyers for the plaintiffs are engaged in discussions about a potential global settlement  of the litigation. Bayer has been dealing with a depressed share price and disgruntled investors ever since the Aug. 10, 2018 jury decision in the first Roundup cancer trial. The jury awarded California groundskeeper Dewayne “Lee” Johnson $289 million and found that Monsanto acted with malice in suppressing information about the risks of its herbicides.

Monsanto Makes New Bid to Block St. Louis Trial

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Less than a month away from what would be the fourth Roundup cancer trial to pit cancer victims against the former agrochemical giant Monsanto Co., lawyers for the opposing sides continue to battle over how, when and where the case should – or should not – be heard.

Lawyers for Monsanto and for its German owner Bayer AG, sent a letter last week to the presiding judge in St. Louis County Circuit Court seeking action that would break up the group of plaintiffs into many smaller groups and delay the trial date of Oct. 15 that was previously set for 14 plaintiffs who had been grouped under the case Winston V. Monsanto.

Lead plaintiff Walter Winston and 13 others from around the country were set for trial in St. Louis City Court but Monsanto protested the venue for all the plaintiffs except Winston and after months of battling between the lawyers for both sides, St. Louis Circuit Court Judge Michael Mullen transferred all plaintiffs except Winston to St. Louis County in a Sept. 13 order.  A Missouri Supreme Court ruling early this year found it was improper for plaintiffs’ attorneys to anchor plaintiffs from outside the area to someone who had proper venue to bring a lawsuit in St. Louis.

Plaintiffs attorneys have been working to keep all 14 plaintiffs together and on track for an Oct. 15 trial, seeking approval for Judge Mullen to take a temporary assignment to the county for the purposes of trying the Roundup case. But Monsanto protested that effort, calling it an “extraordinary  proposal” in the company’s Sept. 19 letter to St. Louis County Judge Gloria Clark Reno.

The company said the plaintiffs’ attorneys “have only themselves to blame for the position they are now in. At the time they filed their claims, venue in the City of St. Louis was not proper… The Missouri Supreme Court’s decision… flatly confirmed that conclusion.”

Additionally, Monsanto’s lawyers argued in their letter that any trial should have no more than two plaintiffs: “A joint trial of the disparate claims of thirteen plaintiffs – claims arising under the law of three different states – would inevitably and impermissibly confuse the jury and deprive Monsanto of a fair trial.”

The Winston lawsuit, filed in March of 2018, would be the first trial to take place in the St. Louis area. Two trials that had been set to start in St. Louis in August and September have been delayed.

Before selling to Bayer last year, Monsanto was based in the suburb of Creve Coeur and was one of the largest St. Louis area-based employers.  Roundup cancer trials that had been set for St. Louis area in August and September have both already been delayed until next year. The back and forth battling over where and when the Winston trial may or may not take place has been ongoing for more than a year.

The plaintiffs in the Winston case are among more than 18,000 people in the United States suing Monsanto claiming that exposure to the company’s glyphosate-based herbicides caused them to develop non-Hodgkin lymphoma and that Monsanto hid the risks associated with its weed killers. Three juries in three trials over similar claims have found in favor of plaintiffs and ordered large punitive damages against Monsanto.

Bayer and lawyers for the plaintiffs are engaged in discussions about a potential global settlement  of the litigation. Bayer has been dealing with a depressed share price and disgruntled investors ever since the Aug. 10, 2018 jury decision in the first Roundup cancer trial. The jury awarded California groundskeeper Dewayne “Lee” Johnson $289 million and found that Monsanto acted with malice in suppressing information about the risks of its herbicides.

UPDATED- St. Louis Trial over Monsanto Roundup Cancer Claims in Limbo

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(UPDATE) – On Sept. 12, the Missouri Supreme Court closed the case, agreeing with plaintiffs’ attorneys that Monsanto’s request for the high court to take up the venue issue was moot.   St. Louis Circuit Court Judge Michael Mullen then transferred all plaintiffs except Winston to St. Louis County in a Sept. 13 order.)

An October trial pitting a group of cancer patients against Monsanto in the company’s former home state of Missouri is snared in a tangled web of actions that threaten to indefinitely postpone the case.

New court filings show that lawyers for both sides of Walter Winston, et al v. Monsanto have been engaging in a series of strategic moves that may now be backfiring on them leading up to the trial date of Oct. 15 date set by St. Louis Circuit Court Judge Michael Mullen. Lawyers for the 14 plaintiffs named in the Winston lawsuit have been pushing to keep their case on track so they can present claims from the cancer victims to a St. Louis jury next month. But Monsanto lawyers have been working to delay the trial and disrupt the combination of plaintiffs.

The Winston lawsuit, filed in March of 2018, would be the first trial to take place in the St. Louis area. Before selling to the German company Bayer AG last year, Monsanto was based in the suburb of Creve Coeur and was one of the largest St. Louis area-based employers.  Roundup cancer trials that had been set for St. Louis area in August and September have both already been delayed until next year.

The plaintiffs in the Winston case are among more than 18,000 people in the United States suing Monsanto claiming that exposure to the company’s glyphosate-based herbicides caused them to develop non-Hodgkin lymphoma and that Monsanto hid the risks associated with its weed killers.

The back and forth battling over where and when the Winston trial may or may not take place began more than a year ago and has involved not only the local St. Louis court but also the appeals court in Missouri and the state Supreme Court.

In March of this year Monsanto filed a motion to sever and transfer 13 of the 14 plaintiffs in the Winston case from the St. Louis City Court to the Circuit Court for the County of St. Louis, where the company’s registered agent was located and where “venue is proper.”  The motion was denied. The company had filed a similar motion in 2018 but it also was denied.

The plaintiffs’ lawyers opposed such a severing and transfer earlier this year, but they have now changed that stance because amid all the maneuvering, Monsanto has been seeking intervention by the Missouri Supreme Court. The state’s high court ruled earlier this year in an unrelated case that it was not proper for plaintiffs located outside St. Louis City to join their cases to a city resident in order to obtain venue in St. Louis City. St. Louis City court has long been considered a favorable venue for plaintiffs in mass tort actions

Monsanto’s bid for intervention by the Missouri Supreme Court was rewarded on Sept. 3 when the Supreme Court issued a “preliminary writ of prohibition” allowing Walter Winston’s individual case to “proceed as scheduled” in St. Louis City Circuit Court. But the court said that the cases of the 13 other plaintiffs joined in Winston’s lawsuit could not proceed at this time as it considers how to handle the cases. The court ordered a freeze on any further actions by the St. Louis City Court, “until the further order of this Court.”

Fearing their case will be broken apart and/or delayed waiting for a Supreme Court decision on venue, the plaintiffs’ lawyers on Sept. 4 said they were withdrawing their opposition to Monsanto’s request for a transfer of the case to St. Louis County.

But now Monsanto no longer wants the case transferred given the Supreme Court’s action. In a filing last week the company said: “Plaintiffs fought venue at every opportunity, instead of agreeing to transfer their claims to St. Louis County and seeking a trial setting in that Court long ago. Rewarding the Winston Plaintiffs for this choice will only encourage further gamesmanship.”

On Monday, the plaintiffs’ attorneys filed a response arguing that the Winston plaintiffs should be transferred to St. Louis County as Monsanto had previously requested and that would make the venue issue before the court moot. They also argued that the judge in St. Louis City who has been presiding over the Winston case should continue to handle the case within the county court system.

“With the withdrawal of their opposition to Monsanto’s motion, Plaintiffs have consented to the very relief that Monsanto requests of this Court – transfer of the Winston plaintiffs to St. Louis County,” the plaintiffs’ filing states.  “The Winston plaintiffs’ case is trial ready. If the case is transferred to St. Louis County in short order, the Plaintiffs can begin trial on or close to the schedule currently in place.”

Whether or not a trial will still take place in mid October in St. Louis is still an open question.

Tech, Medical and Farm Groups Ask Appeals Court to Overturn Verdict Against Monsanto

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Groups representing farm, medical and biotechnology interests have filed briefs with the California Court of Appeal, aligning with Monsanto in asking the court to overturn last summer’s jury verdict that found Monsanto’s glyphosate-herbicides cause cancer and determined that the company spent years covering up the risks.

The groups are urging the appeals court to either throw out the win a San Francisco jury gave to school groundskeeper Dewayne “Lee” Johnson in August of 2018 or to invalidate an order for Monsanto to pay punitive damages to Johnson. The Johnson trial was the first against Monsanto over claims that its glyphosate-based herbicides such as Roundup can cause non-Hodgkin lymphoma.

Johnson is one of more than 18,000 plaintiffs making similar claims. The lawsuits allege that Monsanto was aware of scientific research showing an association between its herbicides and cancer but rather than warn consumers the company worked to suppress the research and manipulate scientific literature.

The jury in the Johnson case decided Monsanto should pay $289 million in damages, including $250 million in punitive damages. The trial judge in the case later slashed the punitive damage amount, reducing the total award to $78 million. Two other juries in subsequent trials over similar claims have also found in favor of plaintiffs and ordered large punitive damages against Monsanto.

Monsanto appealed the verdict and Johnson cross-appealed, seeking reinstatement of the full $289 million. Oral arguments are expected in this appeals court this fall with a potential decision from the appeals court before the end of the year.

One of the parties filing a brief supporting Monsanto’s position is Genentech Inc., a San Francisco biotech company with a history of doing research for cancer treatments. In its appeal to the court, Genentech argues that it has expertise as a “science company” and sees the Johnson verdict as a threat to scientific progress. “Courts must ensure the proper use of science in the courtroom in order for innovation to flourish in the marketplace…” the Genentech brief states.

Genentech announced earlier this year a fast-track review from the Food and Drug Administration for a drug treatment for people with non-Hodgkin lymphoma.

In backing Monsanto’s appeal, Genentech echoed complaints by Monsanto that Johnson’s lawyers did not properly present expert scientific testimony: “Genentech writes to highlight the importance of the proper screening of scientific expert testimony for companies with scientifically innovative products and consumers who rely on their innovations.”

The company also sided with Monsanto on the issue of punitive damages, arguing that companies should not be subject to punitive damages if their product has been reviewed by a regulatory agency such as the Environmental Protection Agency (EPA) and found to not pose a risk to human health.

“Allowing juries to award punitive damages for products that have been specifically examined and approved by regulatory agencies creates a large risk of confusion for life-science-based companies and may deter the progress of science,” the Genentech brief states. “If such punitive damages awards are allowed, companies face the risk of massive punitive damages awards unless they routinely second guess the safety decisions of regulators.”

On Tuesday the California Farm Bureau Federation filed its own brief supporting Monsanto. The farm bureau, which says it represents 36,000 members, said the case is of “vital concern” to farmers and ranchers who “depend on crop protection tools to grow food and fiber.”

Even though the Johnson verdict does not impact the regulation of glyphosate herbicides, the farm bureau argues in its brief that the industry fears restrictions on the chemical. The farm group additionally argued that the “trial court’s decision disregards federal law, as well as state law…” because it conflicts with the EPA’s finding that glyphosate is not likely to cause cancer.

Additionally, California associations representing doctors, dentists and hospitals weighed in on behalf of Monsanto arguing that the jury’s decision in the Johnson case was “subject to emotional manipulation” and not based on “scientific consensus.”

“The answer to the complex scientific question the jury was required to resolve in this case should have been based on accepted scientific evidence and rigorous scientific reasoning, not the jury’s policy choices. Even worse, there is reason to suspect the jury’s analysis was based on speculation and emotion,” the associations said in their brief.

Johnson’s attorney, Mike Miller, said he feels “real good” about the chances of victory in the appeals court and described the brief from the California Medical Association as the “same sophomoric brief they file against every victim of negligence.”

Missouri Trial Can Proceed

In separate action in Missouri , the state’s supreme court said on Tuesday that a trial set to start Oct. 15 in the city of St. Louis can proceed as planned on behalf of plaintiff Walter Winston. Other plaintiffs who had joined in Winston’s complaint against Monsanto are expected to be severed and/or have their cases delayed, according to a decision by the Missouri Supreme Court. Monsanto had asked the high court to prohibit the trial from taking place due to the fact that several plaintiffs do not reside in the area.

The Supreme Court instructed St. Louis City Judge Michael Mullen “take no further action” at this time in the cases of the 13 plaintiffs.

Monsanto was acquired by Bayer AG in June of 2018, and Bayer’s share prices fell sharply following the Johnson verdict and have remained depressed. Investors are pressing for a global settlement to end the litigation.

“Serious, Deadly Injury” Cited in New Appeals Court Filing Over Roundup Cancer Claims

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 A California appeals court should reject efforts by Monsanto to overturn a jury verdict awarding millions of dollars to a school groundskeeper and approve $250 million in punitive damages the jury ordered a year ago this month in the first Roundup cancer trial, according to a brief in the case filed Monday.

The brief filed by lawyers for Dewayne “Lee” Johnson responds to arguments by Monsanto made in the appeal and cross-appeal lodged in the state appellate court. The appeal was initiated last year by Monsanto following an Aug. 10, 2018 jury decision that marked the first of three courtroom losses for the agrochemical giant and its owner Bayer AG. The jury in the Johnson case awarded $289 million in total damages, including $250 in punitive damages. The trial judge then lowered the punitive amount to $39 million for total damages of $78 million.

While Monsanto wants the entire jury decision thrown out, Johnson’s attorneys are asking for the total of $289 million to be restored by the appeals court.

Johnson is one of roughly 18,400 people suing Monsanto over allegations that Monsanto’s glyphosate-based herbicides such as Roundup cause non-Hodgkin lymphoma (NHL) and claims that Monsanto has spent decades covering up the risks.

Both sides in the Johnson appeal are awaiting the scheduling of oral arguments, which are expected within the next couple of months. A decision by the appeals court could come before the end of the year.

The appellate decision could be pivotal. Bayer shares plummeted after the Johnson verdict and have continued to be weighed down by two more jury decisions against Monsanto in two subsequent trials. Bayer has indicated it is ready to talk about a global settlement of the Roundup cancer litigation, and a decision by the appeals court could substantially impact the direction and outcome of settlement talks.

In the brief filed Monday, Johnson’s lawyers argued that Monsanto’s conduct was so “reprehensible” as to warrant much more than a “slap on the wrist,” and cited precedent court decisions finding that punitive damage awards equal to 5 percent of a defendant’s net worth is appropriate for “minimally reprehensible behavior.”

Based on Monsanto’s stipulated net worth of $6.8 billion, the punitive damage award of $250 million equals 3.8% and is “a light punishment considering Monsanto’s highly reprehensible behavior,” lawyers for Johnson stated in their brief. The punitive damage award of $250 million “is not unreasonable and it appropriately serves California’s goals of protecting public health, deterring future corporate malfeasance and punishing Monsanto,” the brief states.

The Johnson argument goes into great detail about evidence obtained through discovery, including internal Monsanto emails in which company scientists discussed ghostwriting scientific literature, Monsanto worries about how to counter building evidence of genotoxicity with its herbicides, the company’s failure to do carcinogenicity testing of its formulations, Monsanto’s cultivation of friendly officials within the Environmental Agency (EPA) for backing, and the company’s secret payments to front groups like the American Council on Science and Health (ACSH) to promote the safety of Monsanto’s herbicides.

Johnson’s attorneys say Monsanto’s deceptive conduct has been similar to that of the tobacco industry.

“The Serious, Deadly Injury Suffered by Johnson Supports a Finding that Monsanto’s Conduct Was Highly Reprehensible,” the Johnson brief states. Johnson’s terminal diagnosis and his very painful physical condition warrants the jury award of $289 million, his lawyers wrote.

“Johnson is suffering from extremely painful, disfiguring lesions all over his body, a consequence of the fatal NHL induced by Roundup,” the brief states. “In light of the high reprehensibility of Monsanto’s behavior, the deathly harm to Johnson, and the high net worth of Monsanto, the punitive damages award of $250 million dollars awarded by the jury comports with due process and should be upheld.”

Monsanto’s brief contradicts the Johnson position on every point and states that there is no legal reason to reinstate the $250 million punitive damage award. The company asserts that because the EPA and other international regulators back the safety of its herbicides, the courts should do the same.

“Monsanto had no duty to warn of a risk that, far from being a prevailing scientific view, worldwide regulators agree does not exist,” the Monsanto brief states. “Reinstatement of the $250 million punitive damage verdict would result in the largest judicially approved award of punitive damages in California history, in a case with exceedingly “thin” evidence of malice or oppression. There is no basis for an award of punitive damages in this case, much less the $250 million awarded by the jury.”

Johnson has additionally failed to establish that Roundup “actually caused his cancer,” according to Monsanto. “Even if Plaintiff introduced some evidence to support a failure-to-warn claim, the worldwide regulatory consensus that glyphosate is not carcinogenic establishes the utter lack of clear and convincing evidence that Monsanto acted with malice,” the company’s brief states.

“The jury’s unusually large compensatory award is just as flawed. It is based on a straightforward legal error—that a plaintiff can recover pain-and-suffering damages for decades beyond his life expectancy—that was induced by counsel’s flagrant attempts to inflame the jury.

“In short, virtually everything in this trial went wrong,” the Monsanto brief states. “Plaintiff is entitled to sympathy, but not to a verdict that ignores sound science, distorts the facts, and subverts controlling law.”

St. Louis Judge Denies Monsanto Bid to Delay Another Roundup Cancer Trial

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Monsanto’s bid to postpone another upcoming Roundup cancer trials in St. Louis has failed – at least for the time being – as a judge has ordered that a trial set for October will proceed.

After hearing Monsanto’s argument last week seeking a continuance in the case of Walter Winston v. Monsanto, St. Louis Circuit Court Judge Michael Mullen denied Monsanto’s request and said the trial would start Oct. 15.  Judge Mullen said that depositions and discovery in the case should continue until Sept. 16 with the jury selection process to begin Oct. 10.

The trial, if it takes place, would be the fourth time Monsanto has had to face cancer patients in a courtroom to answer allegations that its Roundup herbicide products cause non-Hodgkin lymphoma and that the company has sought to cover up information about the risks. Monsanto lost the first three trials and juries awarded more than $2 billion in damages, although each of the three jury awards have been reduced by the trial judges.

The Winston trial would also be the first trial to take place in Monsanto’s former hometown of St. Louis. Before selling to the German company Bayer AG last year, Monsanto was one of the largest St. Louis-based employers.

A trial that had been set to start in St. Louis on Aug. 19 was delayed by court order last week, and a trial that was set to start in September has also been continued.

After the trial continuance announced last week, sources said the company and lawyers for the plaintiffs were moving into serious discussions about a potential global settlement. Currently, more than 18,000 people are suing Monsanto, all alleging they developed non-Hodgkin lymphoma due to Roundup exposure and Monsanto covered up the evidence of danger. Someone falsely floated a potential settlement offer of $8 billion, causing Bayer shares to rise sharply.

Bayer has been dealing with a depressed share price and disgruntled investors ever since the Aug. 10, 2018 jury decision in the first Roundup cancer trial. The jury awarded California groundskeeper Dewayne “Lee” Johnson $289 million and found that Monsanto acted with malice in suppressing information about the risks of its herbicides.

Monsanto appealed the verdict to the California Courts of Appeal, and Johnson has cross-appealed seeking to restore his $289 million award from the reduced award of $78 million set by the trial judge. That appeal is continuing and oral arguments are expected in September or October.

As for the St. Louis situation, the Winston trial could still be derailed. The case has multiple plaintiffs, including some from outside the area, and that fact could put the case in the cross-hairs of an opinion  issued earlier this year by the Missouri Supreme Court, potentially tying up the Winston case indefinitely, according to legal observers.

Trump’s EPA Has “Monsanto’s Back”

In separate news, the Environmental Protection Agency (EPA) last week issued a press release to announce that it would not approve cancer warning labels required by the state of California for certain glyphosate-based herbicide products. The EPA said that labeling that states glyphosate is “known to cause cancer,” is false and illegal, and will not be allowed despite a California regulatory action ordering such labeling.

“It is irresponsible to require labels on products that are inaccurate when EPA knows the product does not pose a cancer risk. We will not allow California’s flawed program to dictate federal policy,” said EPA Administrator Andrew Wheeler.

California’s listing of glyphosate as a substance known to cause cancer came after the World Health Organization’s International Agency on the Research for Cancer (IARC) classified glyphosate in 2015 as “probably carcinogenic to humans.”

The fact that the EPA is taking this stance, and found it necessary to issue a press release, appears to validate internal Monsanto documents obtained through litigation discovery that show the EPA was believed to “have Monsanto’s back” when it comes to glyphosate.

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.”