Judge Seeks Lead Counsel in Roundup Products Liability Litigation

roundup-cancerUS District Judge Vince Chhabria requested attorneys who wish to be lead counsel in In Re: Roundup Products Liability Litigation, MDL No. 2741, Case 3:16-md-02741-VC, to submit applications by October 20, when the first pretrial conference will be held in San Francisco.

The Judicial Panel on Multidistrict Litigation (JPML) created the new MDL in the Northern District of California. There are currently 21 actions pending in 14 districts. Including the potential tag-along actions, there are now 37 actions pending in 21 districts. More than 10 different law firms represent plaintiffs in these actions, which were spread across the country.

In the Oct. 6 order, Judge Chhabria stated that the parties will discuss:

  • The appointment of liaison and lead counsel for the plaintiffs.
  • The possibility of bifurcating proceedings to address general causation before any plaintiff-specific questions.
  • The schedule for discovery.
  • The merits of appointing an independent expert at the parties’ shared expense.

Causes cancer

The MDL Court noted that in the two actions previously pending in the Northern District of California, it had granted Monsanto’s request to bifurcate the proceedings. “However, because not all parties to the MDL have had an opportunity to be heard on this issue, the Court will consider additional arguments regarding bifurcation at the case management conference,” the judge wrote.

Three attorneys have submitted applications to be lead counsel including Robin Greenwald of Weitz & Luxenberg, Hunter Lundy of Lundy, Lundy, Soileau & South LLP, and Aimee H. Wagstaff of Andrus Wagstaff.

These lawsuits allege that Monsanto’s Roundup herbicide, particularly its active ingredient, glyphosate, causes non-Hodgkin’s lymphoma (cancer of the lymph nodes). Plaintiffs each allege that they or their decedents developed non-Hodgkin’s lymphoma after using Roundup over the course of several or more years. Plaintiffs also allege that the use of glyphosate in conjunction with other ingredients, in particular the surfactant polyethoxylated tallow amine (POEA), renders Roundup even more toxic than glyphosate on its own.

For more information read New Illinois Lawsuit Charges Monsanto’s Roundup Causes Cancer

Read More

New Roundup Plaintiff Charges Monsanto with Fraud Concerning Cancer Danger

WHO-says-Roundup-probably-causes-cancerAn Illinois plaintiff who contracted non-Hodgkin’s lymphoma (cancer of the lymph nodes) after using the herbicide Roundup, charges in a new lawsuit filed in federal court that Monsanto knew of the cancer risks since the 1980s, but covered it up.

John Cushman of Effingham County, IL, sprayed Roundup on a regular basis for decades. He filed suit in US District Count for the Southern District of Illinois, alleging that the maker, Monsanto Company of St. Louis, MO, pressured the EPA not to label the herbicide as carcinogenic, and aggressively marketed it as “safer than table salt.” Cushman v. Monsanto, Case No. 16 cv 1042.

He is represented by Robert J. McLaughlin, John Backes Prior and Kyle Pozan of Hart McLaughlin & Eldridge, LLC in Chicago.

Monsanto was forced to drop claims that Roundup was non-toxic and safe in 1996 after the New York Attorney General filed suit, charging that the claims were deceptive and misleading. Monsanto did not change its claims in any other state.

In 1985 the EPA classified glyphosate, the active ingredient in Roundup, as a possible human carcinogen. Succumbing to pressure from Monsanto, in 1991 the EPA changed glyphosate’s classification to a “Group E” — noncarcinogenic for humans. The decision came after two occasions when the EPA found that laboratories hired by Monsanto to test the toxicity of its Roundup products committed scientific fraud.

The EPA had planned to release a new risk assessment by July 2015, but it has delayed releasing it in light of the World Health Organization’s 2015 finding that glyphosate is a “probable carcinogen.”

Fraudulent concealment

The complaint argues that because of Monsanto’s fraudulent concealment, the statute of limitations on the claim should be tolled.

“Even as of July 2016, Defendant continues to represent to the public that “Regulatory authorities and independent experts around the world have reviewed numerous long-term/carcinogenicity and genotoxicity studies and agree that there is no evidence that  glyphosate, the active ingredient in Roundup® brand herbicides and other glyphosate-based herbicides, causes cancer, even at very high doses, and that it is not genotoxic,” the complaint states (emphasis added).

Plaintiffs in 14 different federal courts are seeking to create the new MDL No. 2741 to hear all the Roundup litigation. The Roundup motion to consolidate (PDF) seeks to organize the litigation in the Southern District of Illinois before Judge Nancy Rosenstengel or David Herndon. A similar motion is pending to consolidate the cases in the US District Court of Hawaii. The first action was filed on October 9, 2015.

Roundup has been on the market for 40 years.

  • It is the most widely-used agriculture chemical in history.
  • Each year, approximately 250 million pounds of glyphosate are sprayed on crops, commercial nurseries, suburban lawns, parks, and golf courses.
  • In 2010, an estimated 70% of corn and cotton and 90% of soybean fields in the United States contained Roundup Ready seeds. The company accounts for 27% of the world seed market.

For further reading, see Plaintiffs Seek to Consolidate Lawsuits Charging that Roundup Causes Cancer

Read More

Considerations for Plaintiff Attorneys when Starting a Successful Mass Tort Practice

John Ray
John Ray

Mass Tort Litigation has emerged as the only effective check on pharmaceutical and medical device companies that make dangerous products injuring thousands of Americans. Mass tort attorneys have filed 140,000 lawsuits in 250 federal multidistrict litigation dockets as of September 2016.

Many attorneys are expanding their personal injury practices to include mass torts because the US Judicial Panel on Multidistrict Litigation has organized the litigation so effectively against the multi-billion-dollar drug and medical device industry.

“The FDA is not a check or a balance on the pharmaceutical industry,” said Mass Tort Nexus Consultant John Ray, recently teaching a four-day course about mass torts in Fort Lauderdale, FL. “Plaintiff attorneys are the only check on the pharmaceutical industry.”

In recent years mass tort lawyers have recovered $10 billion in settlements for injured Americans: $4.8 billion for Vioxx, $1.8 billion for Yaz, $1.3 billion for the Stryker hip and $2.5 billion for the DePuy hip.

“The drug companies bake these cases into their business model,” Ray said. “Defendants call it a win when they don’t put a warning on their labels, don’t get sued and don’t have to pay a judgment at all. This means they got away with it. That happens a lot.”

When a federal MDL is created, the supervising judge will approve a standard short-form or long-form complaint, plus a plaintiffs’ fact sheet which replaces interrogatories. The consolidation of cases means that a mass tort lawyer can file a notice of appearance and file cases regardless of the jurisdiction of the plaintiff, defendant company or the location of the plaintiff’s attorney.

Criteria for a viable case

Cases that are attracting many mass tort attorneys now involve Xarelto, IVC filters and Pradaxa. Among the many factors determining the viability of a mass tort are:

  • Preemption. Congress has expressly preempted certain claims. Further, courts have ruled that generic manufacturers cannot be sued.
  • Statute of limitations: State laws govern when the statute of limitations starts to run, but in most federal litigation, the date that the FDA issues a “black box warning” for a drug marks the date when the time limit begins to run.
  • Legal viability. In many cases, research will show a connection between a drug and injuries among patients, but specific causation must be proved in a trial. Experts must be found who will survive a Daubert motion to disqualify.
  • Financial viability of the defendant. While Johnson & Johnson had $46.8 billion in annual income in 2015, some small makers of IVC filters went out of business before they could sell one.
  • Average case value. The average Pradaxa case settled for $160,000 in 2014, with some settlements valued up to $500,000, according to a grid created by US District Judge David R. Herndon.
  • Plaintiff numerosity. Cases in the Syngenta Corn Market Crash Litigation involve every corn producer in America, and IVC Filters have been implanted in millions of patients over the last 40 years.
  • Cost per client acquired. Costs can add up with Facebook advertising, website marketing, and lead generation companies. For example, The Sentinal Group will advertise for clients for a fee of $100,000 to obtain 250 calls for Xarelto plaintiffs, with 1 out of 5 calls leading to a signed client.
  • Case duration. Mass torts are litigation for the long haul, with the average case lasting 5 years and 4 months before settlement, according to Ray, with 7 years being a good benchmark for the duration of a case.
  • Case value. An example of a good outcome is with Pradaxa. The average settlement is $162,000. Calculating 40% in gross contingent fees would equal $64,800. Another 7% is deducted ($4,536) for the common benefit to pay the steering committee. Of the remaining fee of $60,204, a 40% referral fee of $24,015 is deducted for the co-counsel that handled the litigation. This leaves a net fee of $36,189 for the attorney who originated the case.
  • Financial resources. Costs to fund a case can be in the tens of thousands of dollars, with costs reaching hundreds of thousands for members of the plaintiffs steering committee.
  • Personnel resources. A law firm will have to train a small army of intake specialists to answer incoming calls when advertising is running. Additional personnel will be needed to obtain and review medical records.

Perfect timing

There are three phases of mass tort litigation, and perfect timing will be needed to enter a particular case.

Emerging Phase Cases. In this early phase, the cost to acquire a client is the least expensive, but there many issues of case viability. For example, the courts are still considering motions to consolidate cases involving Abilify and Roundup. With Abilify the FDA has issued a safety warning but not a black box warning. With Roundup the EPA has not classified the herbicide as a carcinogen, but foreign governments have.

Litigation Phase Cases. It is considered an ideal time to enter into a mass tort when the JPML has created a multi-litigation docket (MDL). Some 250 MDLs include mature litigation involving Benicar, Lipitor, Viagra, Xarelto and Zofran, and many legal issues have been settled. The supervising judge will schedule bellwether or test cases for trial.

Settlement Phase Cases. This is the very safest time to enter litigation because all an attorney must do is find qualified plaintiffs. Example cases involve transvaginal mesh, Levaquin and Pradaxa. However at this late phase the cost to acquire a client is at its highest.

“Whatever you do, maintain your single-event plaintiff’s practice,” Ray advised. “You will have to keep paying the costs of a mass tort case until it settles, and you will need a huge cash supply or credit line.”

Read More

New Illinois Lawsuit Charges Monsanto’s Roundup Causes Cancer

WHO-says-Roundup-probably-causes-cancerAn Illinois man filed suit against Monsanto in U.S. District Court for the Southern District of Illinois alleging he developed non-Hodgkin lymphoma from using the weed killer Roundup.

Roundup motion to consolidate (PDF) seeks to organize the litigation in the Southern District of Illinois before Judge Nancy Rosenstengel or David Herndon. A similar motion is pending to consolidate the cases in the US District Court of Hawaii.

Probable carcinogen

The International Agency for Research on Cancer (IARC), the specialized intergovernmental cancer agency of the World Health Organization, declared in March 2015 that glyphosate, the chemical in Roundup, is a “probable carcinogen.”

Roundup is used in 130 countries and is found in rivers and groundwater, according to many studies. Plants absorb glyphosate and it cannot be removed by washing or peeling produce or by milling, baking or brewing grains. It has been found in food, in the urine of agricultural works and even in the urine of urban dwellers who are not in direct contact with glyphosate. Those most at risk are farm workers, landscapers and employees of garden centers and nurseries.

Charles Bridgeman filed a lawsuit July 18 in U.S. District Court for the Southern District of Illinois against Monsanto Company alleging failure to use ordinary care in designing and manufacturing Roundup, failure to accompany their product with proper warnings and failure to conduct adequate testing and post-marketing surveillance to determine the safety of product. It is case number 3:16-cv-00812

According to the complaint, beginning in 1990, Bridgeman regularly used the defendants’ product, Roundup, to control weeds. The suit says in 2011 Bridgeman was diagnosed with non-Hodgkin lymphoma, which he alleges is a direct result from his exposure to the herbicide.

The lawsuit states he suffered serious and dangerous side effects, as well as other severe and permanent injuries, physical pain and mental anguish, incurred medical expenses and diminished enjoyment of life.

He is represented by attorneys Edward A. Wallace and by Corey G. Lorenz of Wexler Wallace LLP in Chicago, and by Yvonne Flaherty of Lockridge Grindal Nauen PLLP in Minneapolis.

 

Read More

Plaintiffs Seek to Consolidate Lawsuits Charging that Roundup Causes Cancer

WHO-says-Roundup-probably-causes-cancerPlaintiffs in 14 different federal courts are seeking to create the new MDL No. 2741 in southern Illinois to hear their lawsuits that Monsanto’s weed killer Roundup causes non-Hodgkin’s lymphoma — cancer of the lymph nodes.

The International Agency for Research on Cancer (IARC), the specialized intergovernmental cancer agency of the World Health Organization, declared in March 2015 that glyphosate, the chemical in Roundup, is a “probable carcinogen.”

“Any firm would be wise to get younger lawyers involved because this will be a long, hard fight,” said John Ray, a mass tort expert speaking in a recent webinar. Click to see the Slides & Recording for NTL Webinar: Mass Torts Update for Plaintiff Attorneys.

Learn more about the Roundup litigation at the Sept. 23-26 Mass Tort Nexus Course.

Timothy Litzenburg of the Miller Law Firm, which is involved with the motion to consolidate, will speak about the litigation.

To attend, contact Barbara Capasso at barbara@masstortnexus.com or call (954) 383-3932.

“This chemical interferes with the metabolic process, as a method for killing plants. There is no reason to believe it wouldn’t have the same effect on people,” Ray said. “The question is how much exposure is necessary to cause problems. Non-Hodgkin’s lymphoma is the tip of the iceberg. This chemical could affect the future of our species. It will be decades before we know everything that it did.”

The Roundup motion to consolidate (PDF) seeks to organize the litigation in the Southern District of Illinois before Judge Nancy Rosenstengel or David Herndon. A similar motion is pending to consolidate the cases in the US District Court of Hawaii. The first action was filed on October 9, 2015.

Roundup, manufactured by Monsanto of St. Louis, has been on the market for 40 years.

  • It is the most widely-used agriculture chemical in history.
  • Each year, approximately 250 million pounds of glyphosate are sprayed on crops, commercial nurseries, suburban lawns, parks, and golf courses.
  • In 2010, an estimated 70% of corn and cotton and 90% of soybean fields in the United States contained Roundup Ready seeds. The company accounts for 27% of the world seed market.

Roundup is used in 130 countries and is found in rivers and groundwater, according to numerous studies. Plants absorb glyphosate and it cannot be removed by washing or peeling produce or by milling, baking or brewing grains. It has been found in food, in the urine of agricultural works and even in the urine of urban dwellers who are not in direct contact with glyphosate. Those most at risk are farm workers, landscapers and employees of garden centers and nurseries.

Campaign of misinformation

“Monsanto has championed falsified data and has attacked legitimate studies that revealed Roundup®’s dangers. Monsanto has led a prolonged campaign of misinformation to convince government agencies, farmers and the general population that Roundup® is safe,” states the complaint in John D. Sanders and Frank Tanner v. Monsanto Company, Case No. 5:16-cv-00726-pa-kk.

Monsanto was aware of glyphosate’s carcinogenic properties as early as the 1980s. The US EPA classified glyphosate as “possibly carcinogenic” in 1985. But after pressure from Monsanto, the EPA changed its classification to “evidence of non-carcinogenicity in humans” in 1991. However, the EPA made clear that the designation did not mean the chemical does not cause cancer.

On two occasions, the EPA found that the laboratories hired by Monsanto to test the toxicity of its Roundup® products for registration purposes committed fraud:

  • Monsanto, in seeking initial registration of Roundup by the EPA, hired Industrial Bio-Test Laboratories. In 1976 the EPA found “routine falsification of data” at the company.  Three top executives of IBT were convicted of fraud in 1983.
  • Monsanto hired Craven Laboratories in 1991 to perform studies about Roundup. In that same year, the owner of Craven Laboratories and three of its employees were convicted of fraudulent laboratory practices in the testing of pesticides and herbicides.

rats with tumors

Professor Giles-Eric Seralini and his research team at the University of Caan in France provided pictures of rats fed Monsanto GMO corn saturated with Roundup weed killer. Their study published in Food and Chemical Toxicology (FCT) discovered that rats fed GMOs developed tumors and died prematurely.

This began a highly-organzied media attack against Seralini by pro-GMO scientists and journalists. When former Monsanto scientist Richard E. Goodman was installed in a newly-created editorial position at FCT, Seralini’s paper was removed from the journal in 2013, a full year after it was initially peer reviewed and published.

Seralini’s study was re-published in 2014 by Environmental Sciences Europe. He also won a libel suit in France against the  former chairman of France’s Biomolecular Engineering Commission, who accused Seralini of “scientific fraud.”

Government crackdowns

Many government agencies have cracked down on Monsanto regarding Roundup.

In 1996 the New York Attorney General sued Monsanto for false advertising over claims that is was “safer than table salt” and “practically non-toxic.” That year Monsanto agreed to cease advertising that Roundup was safe, biodegradable, “good” for the environment, safer that common consumer products or “practically non-toxic.”

In 2009, France’s highest court ruled that Monsanto had not told the truth about the safety of Roundup. The French court affirmed an earlier judgment that Monsanto had falsely advertised its herbicide Roundup as “biodegradable” and that it “left the soil clean.”

Roundup has been banned for sale in the Netherlands, France, Bermuda and Sri Lanka.

 

 

Read More

Slides & Recording for Webinar: Mass Torts Update for Plaintiff Attorneys

5 Mass Torts for Plaintiff Attorneys Today

Broadcast August 31, 2016

Visit http://goo.gl/rOG9qt to see the slides and recording of this program.

John Ray
John Ray

What you will discover

For lawyers starting a Mass Torts practice, picking the right cases and having an effective law firm marketing campaign are essential. Our presenter John Ray will update plaintiff attorneys about 5 key Mass Torts:

  • New Pradaxa docket in Connecticut
  • IVC Filter
  • Xarelto
  • Fluoroquinolone antibiotics
  • Emerging: Roundup litigation

A Mass Tort is ordinarily a product liability case where hundreds of plaintiffs file suit against a pharmaceutical company. These cases are typically collected into one of 300 federal multi-district litigation dockets (MDLs).

Mass Torts is a multi-billion dollar immature market, with economies of scale and only a single barrier to entry. You have already overcome the barrier if you are admitted to practice law.

About our presenter

John Ray has been a leading consultant to the Mass Tort attorneys for more than a decade. His unique skill sets make him well suited to both teaching and consulting in the Mass Tort arena.

He graduated Magna Cum Laude from Brenau University in Atlanta and started a pharmaceutical and medical device company right out of school, selling it in an eight-figure deal when he was 35.
John’s tenure in the pharmaceutical and medical device field allowed him to gain an in-depth understanding of FDA regulatory matters, as well as, a thorough understanding of the science and epidemiology related to gaining FDA approval to market pharmaceuticals and medical devices. John’s inside knowledge of how “Big Pharma” operates gives him a unique perspective and skill sets that are very useful to Mass Tort plaintiff firms.

When John brought his “insider knowledge” and business acumen to the Plaintiff Mass Tort space, one of the first things he recognized was a lack of common terminology and well-defined metrics. John realized that firms were expressing the same concepts, but were not using the same terminology. As a result, John set out to define common terms and create methods for formulating important metrics for use by Mass Tort firms when evaluating litigations. The terminology and metrics John Ray developed are now commonly used by major Mass Tort Law firms.

John is highly sought after and writes sought-after white papers about both current and emerging torts. The accuracy of his analysis of emerging and ongoing litigations is unmatched.

The fact that John not an attorney has proven to be an asset. John thinks like a business person, employing creative problem solving and possesses an extensive set of business skills and industry-specific knowledge. He assists Mass Tort firms in making sound business decisions before and during any litigation they are involved in or are considering becoming involved in.

John is an expert at evaluating cases and looks at each tort as an individual “investment,” which can be quantified resulting in risk mitigation for you and your firm.

Contrary to popular belief, adding Mass Torts to your practice is not gambling, nor is there a secret society of Mass Tort attorneys. The only information you lack to be successful in the practice of Mass Torts is a business plan. As John says, this type of law is 80% business and 20% law. If you understand the business principles of Mass Tort law, you will be successful.

Read More

Roundup Cancer Plaintiffs Seek MDL Against Monsanto

WHO-says-Roundup-probably-causes-cancerEight plaintiffs who have been diagnosed with non-Hodgkin lymphoma (cancer of the lymph nodes) have petitioned the Judicial Panel on Multidistrict Litigation to create MDL 2741 before Judge J. Michael Seabright in the US District Court of Hawaii.

“The number of related actions will likely rise to the thousands in the coming months,” according to Plaintiffs’ attorneys Timothy Litzenburg and Michael Miller of The Miller Firm in Orange, VA. “Judge Seabright has already spent considerable time and resources familiarizing himself with the complex issues involved in the Roundup litigation and Hawaii has a substantial interest in the adjudication of these actions. ”

Another motion is pending to consolidate the cases in the Southern District of Illinois.

Biggest mass tort since asbestos

Mass Tort Nexus has added the hottest emerging litigation to its September Course: RoundUp Litigation. “This could be the biggest mass tort since asbestos,” says John Ray, a leading consultant to the Mass Tort industry for over a decade.

Timothy Litzenberg will be addressing the emerging RoundUp Cancer litigation. He filed one of the original complaints in district court on behalf of a client who developed cancer after exposure to RoundUp. He is also one of the attorneys supporting the Plaintiffs’ motion to form an MDL.

In US District Court, Monsanto failed to derail the RoundUp litigation. Monsanto, as well as Plaintiffs attorneys including Tim have now separately moved to support the formation of an MDL. “This emerging Toxic Tort may involve more plaintiffs than any in history.Do not miss out on the chance to get information on this litigation in its early stages,” Ray says.

To attend the Sept. 23rd  – Sept. 26th for the “Four Days to Mass Tort Success Course” in Fort Lauderdale, contact Barbara Capasso at (954) 383-3932 or barbara@masstortnexus.com for more information.

“Probably carcinogenic”

A 2015 report from the International Agency for Research on cancer – or IARC – a division of the World Health Organization. It found glyphosate to be “probably carcinogenic.” The report says glyphosate caused cancer in lab tests on animals and found that the chemical damaged DNA in human cells.

Monsanto has a significant presence in Hawaii. The company owns or leases approximately 784 acres of farmland on Maui island and 2,296 acres on Molokai island. Monsanto employs more than 1,000 local Hawaii residents and has invested millions in specialized facilities in the state. Monsanto’s operations comprise one-quarter of all Maui county agricultural activity, and the seed industry in Molokai is the most significant private industry activity aside from tourism.

Each of the related actions and any tag-along cases have common questions of fact:
(1) whether Roundup was marketed with adequate warnings.
(2) whether Defendants conducted adequate testing of Roundup.
(3) whether Roundup exposure contributed to the development of non-Hodgkin lymphoma.

Two cases in Hawaii are the most developed in the country. “Judge Seabright has already invested substantial time in this litigation and has issued a lengthy and well-reasoned opinion involving complex questions of federal preemption, federal regulation of herbicides and statute of limitations,” Litzenburg and Miller argue.

The state and local governments of Hawaii have taken steps to restrict the use of herbicides and planting of genetically engineered crops even before the release of the IARC report on glyphosate.

Read More