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Daily News Blog

25
Jun

Bayer-Monsanto, Committed to Continued Sales of Roundup™-Glyphosate, Announces $10.9 Billion Settlement with Cancer Victims, Protects Company from Future Trials by Jury

(Beyond Pesticides, June 25, 2020) Facing approximately 125,000 lawsuits on cancer caused by the weed killer Roundup™ (glyphosate), Bayer/Monsanto announced yesterday that it will pay up to $10.9 billion to resolve current and potential future litigation. According to Bayer, the settlement will “bring closure” to approximately 75% of current Roundup™ litigation. “The company will make a payment of $8.8 billion to $9.6 billion to resolve the current Roundup™ litigation, including an allowance expected to cover unresolved claims, and $1.25 billion to support a separate class agreement to address potential future litigation,” according to Bayer’s press release. At the same time the company announced a $400 million settlement with farmers whose crops have been damaged by the weed killer dicamba and $820 million for PCB water litigation. Bayer is a German multinational pharmaceutical and chemical company that purchased Monsanto for $63 billion in 2018. Bayer’s stock price increased by 2.5% after the news of the settlements.

Bayer Settles, but Defends the Safety of Roundup
As expected, Bayer is not acknowledging any harm caused by glyphosate. According to chief executive officer of Bayer, Werner Baumann, “The decision to resolve the Roundup™ litigation enables us to focus fully on the critical supply of healthcare and food. It will also return the conversation about the safety and utility of glyphosate-based herbicides to the scientific and regulatory arena and to the full body of science.” After expressing sympathy for victims of non Hodgkin lymphoma (NHL), Mr. Baumann said, “The extensive body of science indicates that Roundup™ does not cause cancer, and therefore, is not responsible for the illnesses alleged in this litigation.” He continued, “We stand strongly behind our glyphosate-based herbicides, which are among the most rigorously studied products of their kind, and four decades of science support their safety and that they are not carcinogenic.” He points to EPA’s Interim Registration Review Decision, issued in January, which allows continued use of glyphosate.

Roundup™ Causes Cancer, according to Science
Concern about glyphosate-based pesticides swelled when the World Health Organization’s International Agency for Research on Cancer (IARC) determined that glyphosate is a probable carcinogen in 2015. Beyond Pesticides has covered the relationship of glyphosate (and the adjuvant ingredients in formulations) to cancer, endocrine disruption, reproduction, and renal and hepatic damage, in addition to its toxicity to fish and other aquatic organisms. Contrary to scientific consensus and to the IARC’s conclu, EPA, which has experienced heightened politicization of its decisions under the Trump administration, maintains that glyphosate formulations are “not likely to be carcinogenic to humans,” as it posited in a decision announced in May 2019. EPA took this step even in the face of an April 2019 report by the Agency for Toxic Substances and Disease Registry (ATSDR) — an agency of U.S. Department of Health and Human Services — which evidenced findings that support glyphosate’s carcinogenicity.

The three cases that have gone to trial (see below) will continue through the appeals process and are not covered by the settlement. It is important for the company to continue these cases as the appeals will provide legal guidance going forward. In an appellate court filing, the U.S. government expressed its specific support for the company’s preemption arguments, asserting that state law warning claims in the Roundup™ litigation conflict with U.S. federal law, requiring no cancer warning, and must be dismissed. Just this week, a federal judge in California found that the weight of scientific evidence does not support the state’s Proposition 65 cancer warning requirement for glyphosate-based herbicides — a ruling that reinforces the very arguments the company has made at trial. Potential future cases will be governed by a class agreement which is subject to court approval. The agreement includes the establishment of a class of potential future plaintiffs and the creation of an independent Class Science Panel. The Class Science Panel will determine whether Roundup™ can cause NHL.

Settlement Will Stop Jury Trials
Both the class and company will be bound by the Class Science Panel’s determination on this question of general causation, taking this decision out of the jury trial setting, where Bayer has a poor track record. If the Class Science Panel determines that a causal connection between Roundup™ and NHL is not established, class members will be barred from claiming otherwise in any future litigation against the company. The Class Science Panel’s determination is expected to take several years. Class members will not be permitted to proceed with Roundup™ claims prior to the Class Science Panel’s determination, and cannot seek punitive damages. The agreed funding is capped at $1.25 billion and will support research into treatment of NHL, NHL diagnostic programs in underserved areas, and assistance payments to class members who develop NHL before the Class Science Panel’s determination and are eligible on a need basis for assistance during that period.

The company said that before deciding to settle, it considered the alternative course of continuing to litigate Roundup™ cases. In the company’s risk assessment, the potential negative outcomes of further litigation, including more advertising and growing numbers of plaintiffs, upwards of twenty trials per year and uncertain jury outcomes, and associated reputational and business impacts, would substantially exceed the settlement and related costs.

“Taking account of various options, I am convinced this plan provides a comprehensive, reasonable solution to the complex, contested issues presented by this litigation,” said attorney John Beisner, a consultant to Bayer’s Supervisory Board and a mass tort expert who leads Skadden, Arps, Slate, Meagher & Flom LLP’s Mass Torts, Insurance and Consumer Litigation Practice Group.

Big Jury Verdicts for Victims of Roundup
In May 2019, a California jury awarded plaintiffs in the third damages lawsuit on the weed killer Roundup™ over $2 billion in punitive and compensatory damages. The jury found that Monsanto “engaged in conduct with malice, oppression or fraud committed by one or more officers, directors or managing agents of Monsanto.” Plaintiffs Alva and Alberta Pilliod, a couple in their seventies, used Roundup™, with the active ingredient glyphosate, since the 1970s to maintain their yard around their home and other properties that they owned. The couple did not wear protective gear when using Roundup™ because Monsanto marketed the product as “safe.” Mrs. Pilliod was diagnosed with non-Hodgkin lymphoma (NHL) in 2011; Mr. Pilliod’s diagnosis followed in 2015. The Pilliod v. Monsanto jury came to its decision based on evidence, not only of the herbicide’s carcinogenicity, but also of Monsanto’s role in suppressing and discrediting independent findings regarding Roundup™ toxicity. In an interview with U.S. Right to Know’s Carey Gillam, co-lead trial counsel Michael Miller said, “Unlike the first two Monsanto trials, where the judges severely limited the amount of plaintiffs’ evidence, we were finally allowed to show a jury the mountain of evidence showing Monsanto’s manipulation of science, the media and regulatory agencies to forward their own agenda despite Roundup’s severe harm to the animal kingdom and humankind.”

The Pilliod trial adds to the growing list of major wins for plaintiffs who attribute their suffering from cancer to Monsanto’s “malice, oppression or fraud.” In the summer of 2018, California groundskeeper Dewayne “Lee” Johnson won a $289 million jury verdict against Monsanto for his development of NHL after consistent exposure to Roundup™. The jury awarded him $39 million in compensatory damages, and $250 million in punitive damages, finding that Monsanto acted with “malice or oppression.” That amount was later amended by the judge to a total of $78 million. In the second federal court case, again in California, the jury found unanimously that Edwin Hardeman’s development of NHL was substantially caused by Roundup™ and awarded him $80 million.

Misleading on “Sustainable Agriculture”
Bayer, which expresses a long-term commitment to “sustainable agriculture,” continues to push genetic engineering and herbicide tolerant crops, despite increasing weed resistance to glyphosate that threatens farmers’ financial viability. In fact, on June 3, the federal Ninth Circuit Court of Appeals vacated EPA’s 2018 conditional registration of three dicamba weed killer products for use on an estimated 60 million acres of DT (dicamba-tolerant through genetic modification/engineering) soybeans and cotton, pointing to the crop damage caused by the herbicide.

Calling for a Transformation to Organic
The tragedy caused by glyphosate and dicamba represents the tip of the iceberg that is chemical-intensive agriculture. While the litigation costs and jury verdicts on individual pesticides create an economic disincentive for continued production of hazardous pesticides and chemical-dependency in agriculture, the Bayer settlement indicates that it is not the silver bullet to put an end to continued hazardous pesticide use—even continued use of the chemical at issue, glyphosate. And, as a federal court decision banning three dicamba products was being announced this month, new formulations of dicamba and new herbicide-tolerant crops were being brought on to the market. This phenomenon—the pesticide treadmill—kicks the toxic pesticide can down the road, as the next generation of hazardous pesticides are developed for no other reason than the profits captured by multinational corporations and their shareholders. Meanwhile, the hazards associated the toxic chemicals being developed and spread across the environment are raising complex challenges for the sustainability of life on an individual and global scale. The use of these chemicals is unnecessary to meet our food production and quality of life needs because there are viable alternatives that are compatible with biological systems. Beyond Pesticides calls for the urgent adoption of organic practices in the management of agriculture, landscapes, and buildings. Join Beyond Pesticides’ campaign to transition society to organic on farms and in communities. Have a pest problem? Solve it without toxic chemicals; see ManageSafe.

All unattributed positions and opinions in this piece are those of Beyond Pesticides.

Source: Bayer press release

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