May 5, 2020 – As a followup to our programming on what has been reported in the scientific and jurisprudential communities, is the devastating effects of the herbicide glyphosate on human health, the food supply, and the environment.
Juries in the United States have heard several cases where plaintiff’s have alleged and juries have found they were gravely harmed from using the herbicide. At least three cases have been decided in favor of the injured plaintiffs—even unanimously, but are pending appeal by the maker—Monsanto, now owned by the international conglomerate, Bayer AG, headquartered in Germany.
Yet, during the pendency of these actions, plaintiffs continue their battle against non-Hodgkins lymphoma—the type of cancer at the center of the lawsuits, as well as against the herbicide maker–Monsanto/Bayer. What is insidious about this cancer, is that it attacks the body’s lymphatic system, which in turn affects the immune system–the very same body system that needs to be battling the cancer. As a result of all these stressors, these victims and their immune systems are literally battling for their lives. Despite all this, the multi-billion dollar Bayer is now signaling amidst the Corona pandemic that it is playing hard-ball with these cancer victims. Once signaling to settle a number of the cases against it before the pandemic, it is now throwing these battle-weary and dying plaintiffs a whole new set of challenges on what the company claims to be the road to settlement. What is remarkable, is that even after having made billions of dollars selling their controversial weedkiller during the pandemic, much of it being stockpiled by purchasers, it appears that these corporate profiteers are still trying to squeeze these injured and dying plaintiff’s to a point beyond no return—literally.
Not long ago before the pandemic shutdown, Bayer was looking to mediate the vast amount of cases to stem outflow of millions of dollars in compensatory and punitive damages awards—while at the same time, minimizing the damage to its public image and reputation. That is looking to end the swath of bad publicity coming their way. But in light of the evidence presented at trial, much of it admitted through discovery, was very damning for Monsanto.
Evidence Presented at Trial: Jury Awards Huge Verdicts to Suffering and Dying Plaintiffs
The first successful case brought against the herbicide maker, was filed by Dewayne Johnson, a California school groundskeeper who regularly applied the product as part of his maintenance duties. In 2014, at the age of 42, Johnson was diagnosed with terminal cancer, non-Hodgkins lymphoma. After just a handful of years of routinely using the product on the job, he recounted one day in particular. It was the day he was applying the herbicide and the sprayer he used malfunctioned, and his clothes were sprayed with the herbicide. He testified he took a shower after the incident, but despite his best efforts, he developed a rash all over his body. Johnson testified that he tried to contact Monsanto numerous times after he experienced these rashes, but the company never returned his calls.
Johnson then sought medical advice for what appeared to be developing skin lesions. After testing, the doctors determined his rash to be cancer. In 2018, a San Francisco jury heard the evidence, and awarded Johnson $289 million in both punitive and compensatory damage. What that jury learned from information obtained through discovery that, the maker Monsanto “knew” of the propensity of the herbicide to cause non-Hodgkins lymphoma but failed to warn users of this hazard. As a result of this and other evidence presented, Johnson received a “unanimous” jury finding that the jury believed the evidence showed that Johnson’s non-Hodgkin’s lymphoma was caused by his repeated use of the herbicide up to and including the time of his illness, when he was employed as a California school groundskeeper.
Yet, despite the plaintiff’s documented suffering and terminal diagnosis, combined with the defendant Monsanto’s failure to warn of the danger presented by repeated use of its products–literally hiding the product warnings from public view, the judge reduced a dying man’s monetary award by means of “remittitur” –-a judicial ruling to lower the amount of damages granted in a civil case. In doing so, the judge effectively reduced Johnson’s jury award of $289 million dollars–which consisted of $250 million in punitive damages and $39.25 million in compensatory damages—down to $78.5 million. Jurors believed that the company had “acted with malice or oppression” which justified the punitive damages when it supplied the herbicide to the school district that employed Johnson without disclosing the toxic, life-threatening effects of its product on those exposed to it. The jury also took in consideration on the punitive damages award that the company ignored Johnson’s repeated phonecalls to contact them once he became ill.
Nevertheless, the judge reduced the award based on procedural and statutory grounds—stating that both the compensatory damages and punitive damages under the law was required to be split equally, 1 to 1. That final calculation was $39.25 for compensatory and $39.25 for punitive damages bringing the reduced the verdict to $78.5 million. It has also been reported that the judge wanted to nullify the jury’s verdict based upon her own view of the strength and reliability of the evidence presented. However, after jurors heard of the judge’s leanings, many of them were 
outraged and wrote letters to the judge urging her to keep their verdict intact–one of them writing, “You may not have been convinced of the evidence, but we were,” one of them wrote.
Even though Johnson could have appealed the judge’s decision which lowered the award, he accepted the lowered amount of $78 million, stating he wanted to bring the case to a close during his lifetime. But not long after, the herbicide maker chose to appeal the lowered amount, as a result, oral arguments are set to take place in the Court of Appeals in San Francisco during the Coronavirus pandemic, on June 2, 2020. Despite all Bayer’s attempts to ward-off the pending jury awards, the owner of Monsanto reported record profits in 2019 of $2.4 billion dollars in earnings. What is remarkable, the company stance toward these plaintiffs has gotten even more difficult, despite the fact that corporate earnings were pushed even higher due to pre-Coronavirus sales. It appears the company would rather spend buckets of money on armies of lawyers to wear down the plaintiff’s and dissuade others from bringing claims, than making restitution for those who were injured by their product and the resultant disease. Not a good public relations feel good story at a time of unmitigated human crisis and tragedy.
Now that the Coronavirus has brought out the best in humanity, first-line responders are putting their lives on the line–paramedics, nurses, doctors and volunteers, surely reasonable minds would expect Bayer to do the same? Yet, Bayer’s actions do not appear to be in the best interests of those harmed, it appears to be acting only in the best interests of its shareholders.
More Cases of non-Hodgkins Lymphoma Being Litigated With Exponential Jury Awards
In another non-Hodgkins lymphoma case last year in 2019, a San Francisco jury awarded another plaintiff, Edwin Hardeman $80 million dollars for damages after the jury found the controversial weedkiller was a substantial factor in causing his non-Hodgkin’s lymphoma. Hardemann, who is 70 year old, had used the herbicide on his 56-acre property for more than two decades. Jurors also wrote letters to the judge in the Hardemann case to thwart off attempts to lessen the awards based upon traditional ratios between compensatory and punitive damages.
In yet another Monsanto case in California in 2019, a jury in Alameda County awarded $2 billion to a couple–the Pilliods, both of whom developed non-Hodgkins lymphoma–cancer– in yet another round of the Roundup weed killer case. The jury found that Alva and Alberta Pilliod both developed non-Hodgkins’s lymphoma because of their regular use of the herbicide.
All of these cases, evidence and awards are damning for both the company and its executives, as evidence unearthed through discovery includes internal company records that Monsanto company executives themselves created information on the product safety, and had outside scientists attest to it, placing their signatures and names on the reports. To make matters worse, internal documentation showed a correlation between glyphosate use and non-Hodgkin’s lymphoma–the very disease that plaintiff’s were suffering from and seeking compensation.
International Community Under Siege by Herbicide Maker
Moreover, these same documents also exposed company plans to discredit the International Agency for Research on Cancer (IARC)–an arm of the World Health Organization (WHO) based in France. It was this agency that declared in 2015, the primary chemical in Roundup, “glyphosate” to be a “probable carcinogen.” In fact, many of Monsanto’s “scientific partners” that push its safety, include: trade groups, lobbyists and paid academics. These “partners” in addition to Bayer–have tried to find and report flaws in the IARC analysis, yet, despite their attempts, they have been unable to do so using legitimate arguments. At trial “ghostwriting” by Monsanto’s to disparage the IARC’s finding that their product was “probably carcinogenic” was brought before the jurors. The scheme was that reliable “scientific partners’ were paid to create doubt in the minds of the public by publishing safety documentation that was fully or mostly written by company executives, and then disseminated by the scientists, trade groups and academics as if written and researched by them. In truth these “independent” scientists were merely hired by Monsanto to give credence to Monsanto’s own position on safety. With the jury hearing this evidence, in addition to the maker failing in its “duty to warn” of the known dangers posed by the ordinary use of its product–jurors found the maker was knowingly culpable and blameworthy for the injuries suffered by the plaintiffs. It is also worthy of note, that due to the Coronavirus pandemic, the Trump administration has cut all funding to the WHO, claiming that they did not do their job swiftly enough to warn the US of the impending danger from the virus. Yet the take away here, is that the US Environmental Protection Agency (EPA) is currently loosening restrictions on pesticide use, and as a result just reraffirmed that glyphosate as safe to use, and does not cause cancer--even though the WHO’s IARC cancer arm declared it to be carcinogenic. Could this be coincidence?
The Making of a Successful Product Liability Case…
What most plaintiff’s don’t know, is that to be successful in a product liability suit, the Plaintiff must prove that the product caused the injury, and it was made defective or unreasonably dangerous in some manner, or that the maker failed to warn of a known danger. Product liability claims can be based on breach of warranty, defective design, defective manufacture, and failure to warn. As always, the Plaintiff has the burden to prove that the product was used as intended by the manufacturer, or in a way that would be expected or anticipated by the manufacturer of the product. Whatever the theory of liability, the Plaintiff must prove that it is “more probable than not” that they were injured by the product, and such injury was “in fact” caused by the product. If the manufacturer knew of a danger and concealed it, and it was reasonably foreseeable that harm would result–that can lead to exponential punitive damages. That certainly happened in these cases. As in any civil action, the standard of proof is proof by a “preponderance of the evidence” which equates to the more probable than not standard that the product in question caused the injury.
In these litigated Monsanto cases, it appears that evidence presented in numerous instances was failure to warn and breach of warranty as to the claims made by the company as to the product’s safety. In all its advertisements, Monsanto made it clear that their product was safe to be used around people and pets. Purchasers relied on those statements of safety to make their purchase, which led to the cavalier use of the product. Without such warning, the jury found it was foreseeable that people would be harmed by the product.
Discovery: a Window Into Corporate Intent
What is most egregious, is that through discovery, it became evident to the jury that the company knew that non-Hodgkin’s lymphoma could result from repeated use of its product, yet they marketed it as safe, and without adequate warning as to its actual safety. Such failure to warn of known harms, and the foreseeability of subsequent catastrophic harms suffered by plaintiffs—gives credence to the exceedingly large jury verdicts and punitive damage awards by those hearing the evidence presented at trial. The juries’ messages are unmistakably clear: callous disregard or indifference toward the potential for catastrophic human injury and suffering by those who regularly purchased and used the Defendant’s product will not be tolerated by society. Without such verdicts, companies can just continue making products without any change in the way they do business, especially if government regulators such as the EPA turn a blind eye.
Most damning for Bayer, is Monsanto’s internal corporate memoranda, indicating it had knowledge that the product was unsafe to use without adequate protection of its users–yet, disregarded the evidence and marketed it as safe for consumers.This information was published by U.S. Right to Know (USRTK) and is known as the “Monsanto” papers. Much can be found with regard to the legal filings including internal company reports detailing the company knew of its product’s toxicity, and tried to hide it. As a result, juries repeatedly found for Plaintiff’s on the “failure to warn” theory of product liability.
Quoting US Right to Know based on the ‘Monsanto papers‘:
“Among the evidence that has emerged through the litigation are internal Monsanto documents showing the company engineered the publishing of scientific papers that falsely appeared to be created solely by independent scientists; the funding of, and collaborating with, front groups that were used to try to discredit scientists reporting harm with Monsanto’s herbicides; and collaborations with certain officials inside the Environmental Protection Agency (EPA) to protect and promote Monsanto’s position that its products were not cancer-causing.”
The Toxic Effects of Herbicides on People, Planet & Pollinators
The plaintiff’s irreparably harmed include: farmers, landscapers, weekend gardeners—unknowing consumers who used the product according to directions but had no indication of its toxicity and no warning as to the deadly consequence of its repeated use. Notably, it has been reported that residue of the herbicide gets into foodcrops and can be ingested, creating grave risk to both humans who consume the food products and bees that pollinate them. Moms Across America has shared documented testing that catalogs the amount of glyphosate residue in food, water, and even breastmilk. The Environmental Working Group (EWG) has published their findings of glyphosate in food products. There is also scientific evidence that glyphosate in Roundup kills critical pollinators, such as honeybees, and leading to colony collapse. The herbicide maker vehemently denies this occurs, but the FDA won’t release their findings to the public on the levels of glyphosate found in the foodcrops.
Upcoming Programming
To learn more about glyphosate and the ongoing litigation, tune in to view our interview with MIT’s Senior Scientist, Dr. Stephanie Seneff, as she discusses the chemistry, the science, and what she believes to be the pathway to toxicity. In her interview, Dr. Seneff also discusses the Shikimate pathway–a metabolic pathway that resides in the microorganisms and plants–bacteria that line the human gut and protects humans from disease. She explains how the gut microbiota are detrimentally affected by glyphosate substitutions in the body. Curiously, Monsanto claims that the Shikimate pathway does not exist in humans, even though it resides in the microbiota in the human gut. The maker’s argument is that gut microbiota are not human cells, and by such a definition, is not part of the metabolic Shikamate pathway in humans.
For more on the human microbiome, the chemistry, the litigation, and how toxic chemical substitutions take place in the body when glyphosate is present, watch: “Roundup: Is it Ready for Another Trial” only on TheLegalEdition.com
Copyright 2020, Mary Kay Elloian, MBA, JD, Esq. All Rights Reserved.
The information contained in this article and programming is based upon the opinions of the World Health Organization and the research of the scientists and organizations around the world, and does not reflect any opinion or position by the author or The Legal Edition, and does not constitute legal advice.