Does Bayer Now Have $10 Billion Or More Reasons To Settle?
(MASS TORT NEXUS MEDIA) Bayer AG and its recently acquired asset Monsanto Co., lost a recent California state court trial over the Roundup weedkiller in Oakland County, California when a jury awarded the plaintiffs $2.055 billion. They were ordered to pay the blockbuster verdict to a couple who successfully showed that Roundup use caused their non-Hodgkin’s lymphoma. The plaintiffs, Alva and Alberta Pilliod of Livermore, California, claimed they used Roundup once a week for nine months of the year over three decades, when they were both diagnosed with cancer in 2011 and 2015 respectively.
Now attention has moved from the state court Roundup docket to the US District Court in San Francisco, where Judge Vince Chhabria is handling the Monsanto Roundup Glyphosate MDL 2741. Judge Chhabria has entered an order setting a tentative plan in place to remand the federal cases back to their original courts of jurisdiction for trial. (see May 21, 2019 order excerpt below)
Among the financial and legal parties who are monitoring MDL 2741 the number attached to a full settlement looks to be somewhere around $10 billion — an average of $1 million for each of the 11,200 people who are suing over Roundup, which may be a conservative estimate.
The tentative bench ruling by U.S. District Judge Vince Chhabria could help Bayer AG-owned Monsanto win future cases by trying them in agricultural states where farmers heavily depend on the company’s glyphosate-based herbicides Roundup and Ranger Pro, and where medical-causation laws favor the defendants.
Chhabria is now proposing to send them back to their home districts for trial in phases, starting with 16 cases filed in California. Cases filed in other states would be transferred in subsequent phases.
Glyphosate is the most widely used agrichemical in history. Monsanto introduced it in 1974, and its use exploded in 1996 after Monsanto introduced “Roundup-ready” seeds engineered to resist the chemical. More than 2.6 billion pounds of glyphosate were spread on U.S. farmlands and yards between 1992 and 2012, according to the U.S. Geological Survey.
Roundup’s product label instructs users to wear protective clothing and equipment like goggles and long-sleeved shirts while spraying Roundup, and to not breathe it in. But because the first phase of the trial was limited to causation, the jury didn’t learn about the safety instructions included on the Roundup label.
The proposal comes after a federal jury awarded plaintiff Ed Hardeman $80 million in the first bellwether trial before Chhabria in San Francisco in March. Hardeman claimed decades of Roundup use had caused his non-Hodgkin lymphoma.
RELEVANT EXCERPTS FROM MAY 21, 20-19 REMAND ORDER
|ROUNDUP PRODUCTS LIABILITY LITGATION|
MDL No. 2741
Case No. 16-md-02741-VC
| PRETRIAL ORDER NO. 147:
TENTATIVE REMAND PLAN
- The Court will decide all case-specific summary judgment motions. In addition, because Daubert motions relating to causation are so intertwined with summary judgment, the Court will decide those as well. Ninth Circuit law will govern the Daubert motions regardless of where the case originated.1 The courts that will eventually try the cases will be left with any other pretrial motions, including motions in limine, motions to bifurcate, and Daubert motions unrelated to summary judgment.
- The Court will then group the cases by their governing state law. The first group will likely be cases governed by California law. For this group, the Court’s prior summary judgment rulings will govern, at least absent intervening authority. Therefore, to obtain summary judgment in a particular case, Monsanto will need to identify a material difference between that case and the cases for which summary judgment has already been denied. Assuming summary judgment and Daubert motions are denied for a particular case, that case will be remanded to the multi-district litigation panel for transfer back to its original district in California.
- A similar process will take place for subsequent groups of cases, but with the parties also setting forth their positions on whether the law of the state relating to causation is materially different from California law.
- Individual states may be grouped together if it is determined that the relevant law is the same.
- Absent extraordinary circumstances, all multi-plaintiff cases must be severed into separate, individual cases, both because it is not proper for those plaintiffs to be joined under Federal Rule of Civil Procedure 20 and because severance will facilitate implementation of the above-described plan.
IT IS SO ORDERED.
Date: May 21, 2019
United States District Judge
The World Health Organization’s International Agency for Research on Cancer (IARC) did deem Roundup a probable carcinogen in 2015—and though the evidence was mixed and partially based on animal studies, some scientific research has backed that classification. The Environmental Protection Agency’s official position is that “there are no risks to public health when glyphosate is used in accordance with its current label and that glyphosate is not a carcinogen,” with the EPA reiterating this stance at the end of April.
However, Monsanto has also faced accusations that it benefited from a cozy relationship with EPA officials and that it interferedwith supposedly independent scientific reviews that concluded Roundup is safe.
DEFENSE OPPOSES REMAND
Monsanto’s attorney Brian Stekloff, of Washington-based firm Wilkinson Walsh Eskovitz, opposed the plan in court Wednesday. Remanding California cases first likely means getting verdicts in those cases first, which Stekloff said would provide no new data about the litigation given Monsanto’s three trial losses in the state. Additional losses would further weaken the company’s bargaining position in court-ordered settlement discussions.
In addition to the $80 million Hardeman verdict, Monsanto has been ordered to pay $2 billion to a married couple and $289 million – later reduced to $78.5 million – to a school groundskeeper in state court trials in Oakland and San Francisco, respectively. All three plaintiffs alleged they developed non-Hodgkin lymphoma after using Roundup. The World Health Organization’s cancer agency declared Roundup’s main ingredient glyphosate a probable human carcinogen in 2015.
Chhabria rejected Stekloff’s argument by noting the California cases will be sent to federal courts spanning the entire state.
“California is a pretty diverse state,” the judge said. “It’s not like the Bay Area.”
Some observers contend Bay Area residents are too liberal to find for Monsanto.
In a follow-up question, Chhabria clarified Stekloff’s position. “You’d want to pick a state where you think the law on causation is different?” he asked. “More favorable to the defendants?”
“Correct,” Stekloff replied.
Earlier in Wednesday’s hearing, Stekloff said Monsanto wants to try cases in states where glyphosate is “used heavily in agriculture” and has a positive reputation.
Chhabria agreed to remand cases from one additional state during the first phase, but said he will revert to just California cases if the process becomes unwieldy.
Both parties can choose states for subsequent remands. Chhabria suggested they take turns for each remand phase and group states together based on similar laws on medical causation.
Chhabria split up the San Francisco bellwether trials into causation and liability phases to avoid biasing the jury against Monsanto, and Stekloff on Wednesday asked him to formally recommend that judges who get remanded cases also bifurcate their trials.
Chhabria demurred. But “[i]f somebody called me and asked me, I’d say aside from the misconduct in the opening statement, bifurcation worked well,” he said. “It’s a little more challenging for the judge, but I think it worked well.”
The judge recently sanctioned Hardeman’s two lead trial attorneys $500 each for presenting prohibited evidence in their opening statement to the jury.
Also Wednesday, Chhabria set a Feb. 10, 2020, trial date for the next bellwether case. Originally set for this month, Chhabria postponed it to prepare the remaining cases for summary judgment by late 2019.
He also appointed Kenneth Feinberg to mediate settlement discussions between Monsanto and the plaintiff’s MDL Executive Committee. Feinberg has served as Special Master of the September 11 Victim Compensation Fund and the Asbestos Personal Injury Litigation, and as administrator of the BP Deepwater Horizon Disaster Victim Compensation Fund.
Monsanto Bad Conduct Is Revealed At Trial
* Monsanto never conducted epidemiology studies for Roundup and its other formulations made with the active ingredient glyphosate to evaluate the cancer risks for users.
* Monsanto was aware that the surfactants in Roundup were much more toxic than glyphosate alone.
* Monsanto spent millions of dollars on covert public relations campaigns to finance ghostwritten studies and articles aimed at discrediting independent scientists whose work found dangers with Monsanto’s herbicides.
* When the US Agency for Toxic Substances and Disease Registry sought to evaluate glyphosate toxicity in 2015, Monsanto engaged the assistance of EPA officials to delay that review.
* Monsanto enjoyed a close relationship with certain officials within the Environmental Protection Agency (EPA), who have repeatedly backed Monsanto’s assertions about the safety of its glyphosate products.
* The company internally had worker safety recommendations that called for wearing a full range of protective gear when applying glyphosate herbicides, but did not warn the public to do the same.
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