Roundup Lawsuits Rock Bayer

International giant Bayer is reaping a whirlwind of hurt after its buyout of Monsanto, maker of Roundup. Attorneys with top Alabama plaintiff firms wade into the tsunami of product liability claims.

Plaintiff attorneys Don McKenna (left) and Rhon Jones are two of the key players as Alabamians join litigation over connections between the weed-killer Roundup and cancer. Photos by Joe De Sciose and Robert Fouts

Jason Bishop, owner of Rock Solid Services Inc., a Shelby County company specializing in tree care and landscape maintenance, has been using the herbicide Roundup for most of his 44 years. The lawn service Bishop started as a teenager has grown, and he now has customers throughout Shelby and Jefferson counties.

When a customer told Bishop about the avalanche of lawsuits filed against Monsanto, the chemical’s manufacturer, and studies linking its main ingredient, glyphosate, to non-Hodgkin’s lymphoma, Bishop was stunned.

“I think I need to look into this a little more,” he says, pointing to a bumpy rash on his right forearm.

Earlier this year, a California jury ruled against Monsanto in a case that alleged Roundup caused a couple’s non-Hodgkin’s lymphoma. The jury awarded $55 million in compensatory damages and an additional $2 billion in punitive damages, the third defeat for Monsanto lawyers.

Monsanto, now owned by the German company Bayer, which paid $63 billion for the company last year, has denied allegations that glyphosate or Roundup causes cancer, but Bayer recently announced it will invest $5.6 billion to find alternatives to Roundup. “While glyphosate will continue to play an important role in agriculture and in Bayer’s portfolio, the company is committed to offering more choices for growers,” the company said in a news release.

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Recently, the International Agency for Research on Cancer published a study of five insecticides and herbicides, including glyphosate. “For the herbicide glyphosate, there was limited evidence of carcinogenicity in humans for non-Hodgkin lymphoma,” the agency stated. “The evidence in humans is from studies of exposures, mostly agricultural, in the USA, Canada and Sweden published since 200l. In addition, there is convincing evidence that glyphosate also can cause cancer in laboratory animals.”

If Bishop pursues the issue, his will become one of 12,000 or more lawsuits filed across the nation, with more on the way, according to Rhon Jones, an attorney specializing in environmental issues with Beasley Allen, a Montgomery law firm.

“We are taking these cases daily,” Jones says. “They are coming in so fast that I expect that by the end of the year that we will have about a thousand cases. That is a big number, but that is how active this area is.”

Another Beasley Allen attorney, John Tomlinson, is the lead trial lawyer and is working on a case set for trial next March in Dallas County, and another case in Montgomery County which is not set yet.

Tomlinson says, “We also have two Alabama plaintiffs that are filed in a joint action in St. Louis, and while we are not lead trial counsel on that, we will be participating in trial as support for our plaintiff. That trial will be in February 2020.”

Tomlinson says his firm also has two cases, one filed in St. Louis and another filed in Dallas County, where the plaintiffs have “done farming, produce and cattle farming, where they would apply Roundup to fence rows and also they would spray it on their cotton and other foliage, so those are two of the cases.”

The two Alabama residents involved in Tomlinson’s cases are a yard maintenance worker and an individual who used Roundup extensively on his own property. “There are a lot of people in Alabama that have farms that are not professional farms but they have property and they do a lot of upkeep on that property.”

Don McKenna, a partner at Hare, Wynn, Newell and Newton in Birmingham, has been involved in Roundup litigation for about five months.

“Our involvement began after the first verdict and a review of the science,” McKenna says. “A study published this March in the International Journal of Epidemiology found an increased risk of developing non-Hodgkin’s lymphoma from exposure to glyphosate. We knew we had a lot of farmer clients from prior litigation that have significant exposure to Roundup in their farming operations. We felt we needed to make sure that our clients were aware of the link between glyphosate and non-Hodgkin’s lymphoma so that they would be informed going forward and so that they could seek legal counsel if they have developed the cancer.”

McKenna says his firm has four clients in Arkansas, two in Alabama, one in Virginia and one in Pennsylvania.

Hare, Wynn, Newell and Newton has represented a large number of farmers in genetically modified rice litigation and genetically modified corn litigation, McKenna says, and “therefore we have thousands of clients who are exposed to large amounts of Roundup in the farming industry through the use of Roundup-ready crops and application of the Roundup herbicide.”

McKenna says anybody in Alabama who has used Roundup and developed non-Hodgkin’s lymphoma should seek legal counsel to discuss whether they should bring suit to compensate them for their injuries.

“In addition,” he says, “many farmers in Alabama use Roundup-ready cotton, corn and soybeans, along with the Roundup herbicide. These farm workers have higher levels of exposure than typical homeowner use. They should be aware of the potential danger from Roundup, take precautions to avoid exposure and educate those that work with Roundup.”

The Hare, Wynn, Newell and Newton team is preparing to file several suits, McKenna says. “We do a thorough investigation of the client’s medical history and use of Roundup before we file suits.”

Tomlinson says most Roundup damage comes through exposure on the skin. “We also advise people to wear gloves and to try to wear clothing that will keep Roundup from touching the skin, but if you are a farmer and have been out using it extensively, you are going to have some runoff on your skin no matter what you have on.”

Farmers routinely take precautions when using a product marked with skull and crossbones, says Tomlinson, but Roundup “has been marketed as completely safe, there are not cancer warnings on the labels.”

McKenna takes a similar view.

“Businesses should thoroughly test the safety of their products before placing them on the market,” he says. “There is evidence from the first trials that Monsanto’s initial rat studies showed a link between glyphosate and cancer. There is also evidence that rather than conducting further studies, Monsanto hired another scientist to re-evaluate the initial study and find another cancer in the control group so that the results would not be statistically significant.”

McKenna also points out that while Monsanto’s strategy allowed the company to continue to sell the product “without any warnings to the end users, the final result may be serious cancer or death for thousands of people, and hundreds of millions or billions of dollars in litigation costs and injury payments for Monsanto.”

A lot has been made of the huge verdicts being returned, especially on the West Coast, and the impact they have had on Bayer stock prices, which fell drastically but are beginning to recover.

“There have been some very huge verdicts, especially out in California,” says Tomlinson pointing to the “non-economic damages that go along with cancer, the treatment, the pain, the suffering and then you have the punitive damages.”

“Let me just give you some details about the California verdicts,” Jones says. “The first verdict was $289 million, the second verdict was $80 million, the third verdict was over $2 billion. Let me give you a break down. The third verdict was a couple, and the husband and the wife had separate awards but their past economic loss was about $250,000, their future economic loss was about $13 million, their past economic loss was about $16 million, and they awarded a billion each. Clearly the evidence was so damning that the jury was sending a message with the $2 billion punitive, but even if you were to exclude punitive damages, you are still talking about some significant economic losses both past and future, and these are folks who contracted non-Hodgkin’s lymphoma.

“There is a trend here that clearly people are becoming upset about the use of Roundup and cancer and the economic loss that comes from contracting cancer and furthermore, the punishment side of it is just getting larger and larger.”

Jones says his Roundup clients normally contact the firm.

“What would normally happen is that someone will come to us and say ‘I have non-Hodgkin’s lymphoma, or I have some pre-cursor to it, and I have a memory of using Roundup on some kind of regular basis, and would ask us to look into the link.’ That is what we do every single day. Hours of use and the duration is always a little different, so we literally look at one pattern at a time and we have thousands of them, and we review each one and see if we can make that link or not.”

Both Jones and Tomlinson say we are looking at the tip of the Roundup iceberg.

“This has sort of gone from zero to 100 in a short period of time,” says Jones.  “The litigation started and very few people knew about it, nobody read about it, it wasn’t much talked about and then these three verdicts have really put the science on display. So what we see are many more people coming forward on a weekly basis, asking us about this issue, than we have ever seen before, so I believe there will be many more claims made because people who had no reason to ever even consider the link between the use of Roundup and non-Hodgkin’s lymphoma are now coming in.”

In an effort to expedite the ever-increasing caseload, this past May a multi-district litigation (MDL) court initiated a plan to have well known attorney Kenneth Feinberg become mediator for court-mandated settlement talks between Bayer and people who say Roundup gave them cancer. Feinberg was government-appointed special master for the 9-11 victim compensation fund and the BP Deepwater Horizon compensation fund.

“MDLs bring cases together for common discovery,” says McKenna. “Everyone wants to know about the testing and studies on Roundup and cancer. Everyone wants to know about internal emails and memos regarding the safety of Roundup. Everyone wants to know why no warnings were given on the product labels. An MDL makes it efficient for that information to be provided to all litigants who participate in the MDL. Will it impact your cases? For those cases we may choose to file in the MDL, it will make common discovery available to our clients. MDLs often help facilitate settlements that individuals harmed by Roundup could choose to participate in or continue with their litigation.”

“In my opinion,” says Jones, “this is the hottest, most significant litigation going on in the entire country. It is talked about everywhere, it is in the news, it is important, and Monsanto needs to be held accountable.”

Mobile’s $120 Million GMO Chemical Plant

The June 2018 merger of Bayer and Monsanto brought together the world’s two largest developers of genetically modified crop (GMO) products, including Monsanto’s Roundup brand herbicide.

Bayer Crop Sciences is developer of another weed killer, the Liberty brand herbicide. And a chemical plant in Mobile County was set up in recent years to be one of the world’s largest producers of this weed killer.

GMO crops have been promoted as one of the greatest leaps forward in agricultural productivity. Critics question the yield gains and point out the safety hazards. For Monsanto’s Roundup, the key chemical is glyphosate. For Bayer’s Liberty herbicide, it’s glufosinate.

A groundswell of lawsuits over Roundup rocked Bayer-Monsanto shareholders with major damage awards beginning earlier in 2019.

Glufosinate has escaped the scrutiny applied to glyphosate, but its purpose in GMO farming is similar. It was developed to kill the “superweeds” that evolve a resistance to Roundup’s glyphosate.

Whether glufosinate is as damaging to humans as it is to weeds has not yet become a legal issue. But a lot of the world’s supply of it, or the ingredients that go into it, will be made in Mobile County.

In 2013, Bayer selected the Theodore Industrial Complex, on Mobile Bay, as the site for a $396 million plant that would more than double the company’s global production capacity for glufosinate.

In 2015, plans for the Alabama plant were cut back to a $120 million investment.

Following the Bayer-Monsanto merger, the plant became the property of BASF Corp., when the anti-trust division of the U.S. Justice Department required Bayer to divest itself of its U.S. agricultural holdings prior to the merger. — Chris McFadyen

Bill Gerdes, Robert Fouts and Joe De Sciose are freelance contributors to Business       Alabama. Gerdes is based in Hoover, Fouts in Montgomery and De Sciose in Birmingham.

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