Turmoil both in and outside courtrooms appears to be growing for Monsanto, a unit of German owner Bayer AG, as the company works to meet overlapping deadlines for appeal actions in the three Roundup cancer trials Monsanto has lost so far at the same time that the company must prepare for new trials at the end of this summer.
The weight of the litigation burden was laid out by a Monsanto/Bayer attorney in a recent California Court of Appeal filing seeking more time to file a brief in Monsanto’s appeal of the first case it lost last summer.
That plaintiff in that case, Dewayne “Lee” Johnson, was awarded $289 million by a San Francisco jury who determined that Johnson’s non-Hodgkin lymphoma was caused by his exposure to Monsanto’s glyphosate-based herbicides. As part of the $289 million, the jury ordered $250 million in punitive damages after Johnson’s attorneys presented evidence that Monsanto suppressed the evidence of the risks of its herbicides.
The trial judge lowered the damage award to $78 million, and Johnson is cross-appealing to reinstate the full verdict.
Monsanto’s appeal argues, among other things, that if the court refuses to reverse the judgment there should be no punitive damage award at all, even if Johnson is awarded a small amount for compensatory damages.
In the recent filing, Bryan Cave attorney K. Lee Marshall told the court he needs an extension of time to prepare the next brief that is due in the Johnson appeal because of the various deadlines in the multiple cases Monsanto is defending against. He cited post-trial motion deadlines in Pilliod v. Monsanto, in which a jury ordered Monsanto pay more than $2 billion in damages, and deadlines in Hardeman v. Monsanto, in which a jury ordered the company to pay roughly $80 million in damages. Monsanto is seeking to overturn both those verdicts as well.
Last week, Monsanto filed notice in federal court that it – along with insurer Liberty Mutual Insurance Co. – had posted a $100 million bond as it plans to appeal the Hardeman verdict. The company has a July 2 hearing on its request for the trial judge to set aside the verdict and order a new trial.
“In light of the imminent post-trial motion briefing deadlines in Hardeman and Pilliod, I am, and will be, devoting a significant amount of time over the next several weeks to the post-trial motions that challenge the enormous verdicts in those cases. These time-sensitive commitments will substantially impair my ability to devote time to prepare… in this appeal,” Marshall told the court.
As well, he wrote, the Johnson case is “unusually complex and presents numerous complicated issues.” In-house counsel at Bayer wants to review, comment on and edit the reply brief before it is filed, he added.
The Johnson appeal is being handled on an expedited basis due to Johnson’s declining health and terminal cancer diagnosis. Johnson’s attorneys have said they expect oral arguments to be set for the appeals by September or October, with a final ruling expected within 90 days following oral arguments, possibly by Thanksgiving.
If Monsanto loses its bid for a new trial in the Hardeman case the company is expected to file an appeal with the Ninth Circuit Court of Appeals in a process that would likely drag into next spring, attorneys involved in the litigation said.
Meanwhile, the next trial is set to get underway Aug. 19 in St. Louis, the longtime hometown for Monsanto before it was acquired by Bayer in June 2018. The case involves plaintiff Sharlean Gordon, a cancer-stricken woman in her 50s. The case was filed in July 2017 on behalf of more than 75 plaintiffs and Gordon is the first of that group to go to trial.
More than 13,000 plaintiffs have filed suit against Monsanto in the United States alleging they developed non-Hodgkin lymphoma due to exposure to Monsanto’s glyphosate-based weed killers, such as Roundup.
As the litigation proceeds, Bayer investors grow more restless and many are pushing Bayer to seriously consider a global settlement, sources say. Various analysts put a potential settlement number between $2 billion to $3 billion on the low side, up to $10 billion or slightly more as the high end of a range.
Bayer’s shares have fallen 44 percent since the Johnson verdict was handed down last August.
An internal Bayer email dated June 13 revealed that the company is launching a new marketing effort aimed at distancing itself from Monsanto’s questionable conduct.
The email sent from Bayer CEO Werner Baumann stated: “We are currently facing questions of public trust. This challenge is also an opportunity for us to demonstrate what we stand for. That’s why we are raising the bar as we are setting off on a journey to elevate our efforts in transparency, sustainability and how we engage with our stakeholders. As the new leader in agriculture, we aim to set standards that not only align with the norms of our industries, but push all of us to be better.”
“Transparency is our foundation. We will evolve our engagement policies that ground all of our interactions with scientists, journalists, regulators and the political sphere in transparency integrity and respect,” the internal Bayer email states.