Fresh talk of a settlement between Bayer and Roundup cancer patients

Print Email Share Tweet

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:

Bayer shareholder meeting draws protests, pleas from cancer patients

Print Email Share Tweet

The Bayer AG annual shareholders’ meeting got underway Tuesday in Germany, drawing the attention of not only investors and analysts but also activists, lawyers and cancer patients who want to see Bayer make amends for alleged misdeeds by Monsanto, which Bayer bought two years ago.

The meeting was to be an in-person event in Bonn, Germany but due to fears about large gatherings that could spread the Covid-19 virus, Bayer instead is hosting a video webcast  of the meeting.

On Monday the company announced a “good start to 2020,” reporting higher sales and profits through all divisions driven in part by strong demand within its Consumer Health division related to the Covid-19 pandemic.

The shareholders’ meeting comes as Bayer is facing legal claims in the United States brought by roughly 52,500 plaintiffs alleging that exposure to Monsanto’s glyphosate-based herbicides such as Roundup caused them or their loved ones to develop non-Hodgkin lymphoma (NHL). They allege Monsanto was aware of the risks and should have warned consumers but instead sought to manipulate the scientific record and regulators.

Three trials have been held to date and Bayer lost all three as juries awarded more than $2 billion to four plaintiffs, though trial judges later reduced the awards. The trial losses angered investors and pushed share prices to the lowest levels in roughly seven years,  erasing more than 40 percent of Bayer’s market value at one point. Some investors called for Bayer CEO Werner Baumann to be ousted for championing the Monsanto acquisition, which closed in June of 2018 just as the first trial was getting underway.

Bayer and plaintiffs’ attorneys have been engaged in settlement talks for the last year and appeared close to a deal that would resolve a majority of the claims before the onset of Covid-19.

Virus-related government closures, including of U.S. courthouses, have eliminated the possibility of additional trials in the near future, and Bayer has seized on its fresh leverage to walk back some of its negotiated settlements, according to sources close to the talks.

Bayer said Monday it will “continue to consider a solution only if it is financially reasonable and puts in place a mechanism to resolve potential future claims efficiently. Against the background of a looming recession and looking at, in part, considerable liquidity challenges, this applies now more than ever.”

Despite the lack of an in-person meeting, several individuals and organizations are hoping to make their criticisms of the company known. One group representing beekeepers said it was running online ads redirecting people searching for Bayer AGM on Google to an online stream featuring beekeepers talking about the impacts of Bayer’s pesticides on bees.

Several people involved in the Roundup litigation also spoke out.

“It’s time for the Bayer board of directors to step up and do what is right,” said Thomas Bolger, a 68-year-old man from Texas who was diagnosed with non-Hodgkin lymphoma in 2013 after using Roundup since 1982. Bolger recorded a video message to Bayer, detailing his ordeal with cancer.

Robyndee Laumbach, a 50-year-old Texas woman who said her work in cotton genetics exposed her repeatedly to Roundup, also made a video message for Bayer. “Cancer is bad, any which way you look at it. I’m completely damaged and scarred and I will be for the remainder of my life,” she said.

Both Laumbach and Bolger are among the people suing Monsanto.

Roundup litigation plaintiff Michelle Taranto also made a video message on behalf of her husband to share with Bayer. Rose said her husband will soon be entering his third round of treatments “that will hopefully save his life.” She asked Bayer to stop selling Roundup.

“Our lives have been diminished to endless hospital visits, countless painful treatments and expensive scary hospital stays,” Taranto said.

Maine Christmas tree farm operator Jim Hayes made a video message describing being diagnosed with Stage 4 NHL in 2016 after using Roundup on his farm for years. Hayes said he went through six rounds of chemotherapy and a stem cell transplant before being declared in remission. He now fears his cancer will return.

“I love my life. I love my family. I trusted the product. Clearly it is not safe for everyone to use,” Hayes said.

One Roundup litigation plaintiff who only wanted to be identified by his first name, Chuck, also made a video message for Bayer.

“I believe Bayer should be doing everything in their power to fix the problem that Monsanto and their product Roundup has caused thousands of individuals like myself who thought we were just using a harmless weed killer,” he said. “Although my cancer is incurable, Bayer can prevent future people from developing this horrible disease by taking this product Roundup off the shelf now. Bayer should also be accountable for everyone that now has to deal with this horrible disease every day.”

New legal filings over alleged Roundup dangers amid court coronavirus delays

Print Email Share Tweet

Even as the spread of the coronavirus closes courthouse doors to the public and lawyers, legal maneuvering continues over claims of danger associated with Monsanto’s glyphosate-based herbicides.

Two nonprofit advocacy groups, the Center for Food Safety (CFS) and the Center for Biological Diversity (CBD), filed an amicus brief on behalf of cancer patient Edwin Hardeman on March 23. Hardeman won a jury verdict against Monsanto of $80 million in March of 2019, becoming the second winning plaintiff in the Roundup litigation.  The trial judge reduced the jury award to a total of $25 million. Monsanto appealed the award nonetheless, asking an appellate court to overturn the verdict.

The new legal brief supporting Hardeman counters one filed by the Environmental Protection Agency (EPA) that backs Monsanto in the Hardeman appeal.

The CFS and CBD brief states that Monsanto and the EPA are both wrong to assert that the EPA’s approval of glyphosate herbicides preempts challenges to the safety of the products:

        “Contrary to Monsanto’s claims, Mr. Hardeman’s case is not preempted by EPA’s conclusion relative to glyphosate because Roundup is a glyphosate formulation that EPA has never evaluated for carcinogenicity. Moreover, significant flaws and biases undermined EPA’s evaluation of glyphosate’s carcinogenicity and the district court was correct in allowing testimony to that effect,” the brief states.

         “Monsanto wants this Court to believe that “glyphosate” is synonymous with ‘Roundup.’ The reason is simple: if the terms are interchangeable, then, they argue, EPA’s finding that glyphosate is “not likely to be carcinogenic” would apply to Roundup and might preempt Mr. Hardeman’s case. However as the evidence presented at trial demonstrated, “glyphosate” and “Roundup” are very much not synonymous, and Roundup is far more toxic than glyphosate.  Moreover, EPA has never evaluated Roundup for carcinogenicity. Glyphosate formulations, like Roundup, contain additional ingredients (co-formulants) to improve performance in some way. EPA understands these formulations are more toxic than glyphosate alone, yet nevertheless focused its cancer evaluation on pure glyphosate…”

Separate lawsuit names EPA

In a separate legal action, last week the Center for Food Safety filed a federal lawsuit against the EPA over its continued support of glyphosate. The claim, made on behalf of a  coalition of farm workers, farmers, and conservationists, alleges the EPA is violating the Federal Insecticide, Fungicide, and Rodenticide Act as well as the Endangered Species Act by continuing to allow widespread use of glyphosate herbicides.

“While EPA defends glyphosate, juries in several cases have found it to cause cancer, ruling in favor of those impacted by exposure,” CFS said in a press release. “Glyphosate formulations like Roundup are also well-established as having numerous damaging environmental impacts. After a registration review process spanning over a decade, EPA allowed the continued marketing of the pesticide despite the agency’s failure to fully assess glyphosate’s hormone-disrupting potential or its effects on threatened and endangered species.”

Bill Freese, science policy analyst at CFS said: “Far from consulting the ‘best available science,’ as EPA claims, the agency has relied almost entirely on Monsanto studies, cherry-picking the data that suits its purpose and dismissing the rest.”

Virus-related court disruptions

Monsanto and its German owner Bayer AG have been working to try to settle a large number of the tens of thousands of Roundup cancer claims brought in U.S. courts. That effort continues, and specific settlements have already been reached for some individual plaintiffs, according to sources involved in the talks. US Right to Know reported in early January that the parties were working on a settlement of roughly $8 billion to $10 billion.

However, many other cases continue to work their way through the court system, including the appeal of Dewayne “Lee” Johnson, the first plaintiff to win against Monsanto in the Roundup litigation. Johnson’s attorneys had hoped the California Court of Appeal would hold oral arguments in Monsanto’s appeal of Johnson’s win sometime in April. But that now appears extremely unlikely as other cases scheduled for March have now been pushed into April.

As well, all in-person sessions for oral arguments in the appeals court are currently suspended. Counsel who choose to present oral argument must do so over the telephone, the court states.

Meanwhile, courts in multiple California counties are closed and jury trials have been suspended to try to protect people from the spread of the virus. The federal court in San Francisco, where the multidistrict Roundup litigation is centralized, is closed to the public, including a suspension of trials, until May 1. Judges can still issue rulings, however, and hold hearings by teleconference.

In Missouri, where most of the state court Roundup cases are based, all in-person court proceedings (with a few exceptions) are suspended through April 17, according to a Missouri Supreme Court order. 

One Missouri case that had been set to go to trial in March 30 in St. Louis City Court now has a trial date set for April 27.  The case is Seitz v Monsanto #1722-CC11325.

In ordering the change, Judge Michael Mullen wrote: “DUE TO THE NATIONAL PANDEMIC OF THE COVID-19 VIRUS AND THE UNAVAILABILITY OF JURORS IN THIS CIRCUIT THE COURT HEREBY REMOVES THIS CASE FROM THE MARCH 30, 2020 TRIAL DOCKET. CAUSE IS RESET FOR A TRIAL SETTING CONFERENCE ON MONDAY, APRIL 27, 2020 @ 9:00 AM.”

EPA Glyphosate Registration Review Public Comments Now Due

Print Email Share Tweet

For anyone interested in commenting on the EPA’s latest safety review of the weed killing chemical glyphosate:

  • Docket ID:EPA-HQ-OPP-2009-0361
  • Abstract:Federal Register for Tuesday, February 27, 2018 (83 FR 8476) (FRL–9973–07) EPA–HQ–OPP–2017–0720; Registration Review; Draft Human Health and/or Ecological Risk Assessments for Several Pesticides; Notice of Availability
  • Document Type:Notice
  • Status:Posted
  • Received Date:Feb 27, 2018
  • FR Citation:83
  • Start-End Page:8476 – 8478
  • Comment Start Date:Feb 27, 2018
  • Comment Due Date:Apr 30, 2018
  • Glyphosate Case 0178 EPA-HQ-OPP-2009-0361 glyphosateRegReview@epa.gov (703) 347-0292.

See all details here: https://www.regulations.gov/docket?D=EPA-HQ-OPP-2009-0361