“Bayer Deal Pays Roundup Plaintiff to Keep Fighting in Court.”
“Bayer Accused of ‘Pay to Appeal Scheme’ by Roundup Lawyers.”
“Bayer entered into an agreement that essentially pays a Georgia man to keep fighting the company in court.”
See links to referenced news reports at the bottom of this article.
While MTN does not consider the matters covered in this article to be anymore than evidence of Bayer/Monsanto’s desperation to garner any leverage possible in settlement negotiations, we nonetheless thought this story was bizarre enough to merit coverage.
Jim Onder, as well as other major players in the Roundup litigation will be speaking at the MTN Four Day Mass Tort Immersion Course June 11th – June 14th (register here). Attendees will be provided with up to date substantive information on the Roundup settlement negotiations. While news worthy under the category of “bizarre,” the matter covered herein should not be considered substantive. We are covering a side show. Jim and others will give you a peek inside the big tent at our upcoming course.
Bayer/Monsanto has lost numerous trials in the Roundup litigation. The defendants have filed appeals; however, according to reports, Bayer does not believe they are likely to prevail in the appeal in the Circuits where they have pending appeals.
HERE’S WHERE THINGS GET BIZARRE
Now comes the case of Dr. John Carson. Dr. Carson was represented by a relatively young attorney, Ashleigh Madison, in his case filed in Georgia. (4:17-cv-00237-RSB-CLR Southern District of Georgia (Savannah).
From a review of Pacer, it appears that Madison would be accurately described as a general practitioner. We found no appellate cases in our review of cases in which Madison was listed as Plaintiffs counsel. While Madison appears to be a very competent attorney, her apparent lack of appellate experience is concerning considering what is at stake. The Bayer/Monsanto legal team on the other hand is comprised of high flying legal eagles with ample appellate experience.
The lower court Judge in the Carson case found preemption on certain claims brought by Carson; however, other claims survived. One might think, with some claims having survived the lower court’s ruling, the case would have continued to proceed towards trial; then something strange happened.
Although we can find no reference to a settlement in the Notice of Appeal filed in the lower court case, recent news reports inform us that a settlement was reached in which Bayer pays Carson certain undisclosed amounts now and potentially more at a later date.
Despite no particulars regarding the exact amount Carson would receive, it appears that Carson receiving any amount is contingent on his filing of the appeal Bayer wants filed.
It seems that it would be difficult for any Federal Court to find that a genuine adversary case and controversy exist, when the first party has paid the second party to bring an action against the first party. Absent a genuine adversary case and controversy, no Federal Jurisdiction can exist, appellate or otherwise per Article III Section II.
KEEPING IT IN THE FAMILY
What we also find puzzling is the fact that on appeal, Carson v. Monsanto Co., 21-10994, U.S. Court of Appeals for the 11th Circuit (Atlanta) another young Plaintiffs attorney who appears to be less seasoned than Madison, was added to the appellate team. It just so happens that the new attorney added to the team to ostensibly fight Carson’s appeal, appears to be John Carson Jr., the son of the Plaintiff, Dr. John Carson Sr. Like Madison, John Carson Jr. appears to be a perfectly competent attorney; however, we do not see how he brings any additional muscle to a high stake appellate case.
THE LOWER COURT KEPT IN THE DARK
No copy of the settlement was filed with the appeals court, yet a reference was made to the settlement without specificity in Carson’s arguments claiming appellate jurisdiction existed despite a settlement having been reached in the original case. Interestingly, the two cases cited by Carson from the 11th Circuit in support of appellate jurisdiction post-settlement were, Yunker v. ALLIANCEONE RECEIVABLES MANAGEMENT, INC., Court of Appeals, 11th Circuit 2012 and Druhan v. American Mut. Life, 166 F. 3d 1324 – Court of Appeals, 11th Circuit 1999. In both cases the 11th found no appellate jurisdiction existed.
INTERVENTION WAS INEVITABLE
If the Bayer/Monsanto legal team thought their scheme would go unnoticed by their equals (or betters) from the Plaintiffs’ side, they were quickly disappointed.
David J. Wool, Esq. of ANDRUS WAGSTAFF, P.C., R. Brent Wisner, Esq. of BAUM HEDLUND ARISTEI & GOLDMAN, P.C and Jennifer A. Moore, Esq. of MOORE LAW GROUP, PLLC sent a letter to the appeals court (see copy here) shortly after the appeal docket was opened. The letter was followed by a formal motion to intervene.
If Bayer/Monsanto really wants to see their scheme through to the end, it is already clear that they will not do so by out gunning their opposition on appeal. They will have to face the best and brightest of the Plaintiffs’ bar in a battle that is likely to get ugly.
MTN has downloaded the most relevant documents pertaining to this matter from PACER and will be happy to provide any Plaintiff firm interested in this matter with copies.
Lower Court Case: 4:17-cv-00237-RSB-CLR Southern District of Georgia (Savannah)
Appeal: 0:2021-10994 U.S. Court of Appeals, Eleventh Circuit
Links to referenced articles: