Landmark Legal Victory: Bayer Monsanto’s $175M Roundup Verdict

Michael S on October 27, 2023

Bayer Monsanto’s Landmark Defeat in Roundup Cancer Case

The legal landscape, characterized by a complex web of laws, regulations, and judicial decisions, can often appear daunting to those outside the profession. Within the realm of lawsuits and mass torts, significant verdicts not only set precedents and sway public opinion but also serve as a testament to the pursuit of justice. A prime example is the recent ruling against Bayer’s Monsanto.

Key Points:

A jury recently mandated that Bayer Monsanto pay $175 million to a Pennsylvania man who attributed his non-Hodgkin’s lymphoma to prolonged exposure to the company’s Roundup weedkiller.
The plaintiff was awarded $25 million in compensatory damages, coupled with an additional $150 million in punitive damages, asserting that two decades of Roundup application in his garden was a causative factor for his cancer.
Prior to this case, Bayer had celebrated a succession of nine consecutive victories in Roundup-related cases. However, a shift in the tide was observed earlier this month when a St. Louis state court jury awarded $1.25 million in damages to another individual attributing his cancer to the weedkiller.
While compensatory damages are intended to provide restitution to the victim, punitive damages act as a deterrent and serve to reprimand the defendant, in this instance, Bayer’s Monsanto. The substantial punitive damages in this case are indicative of the jury’s stance on the company’s liability.
As the legal battles surrounding Roundup persist, each verdict contributes to a broader narrative that shapes future lawsuits, corporate accountability, and informs potential claimants of their rights.

The recent courtroom setback faced by Bayer in the Roundup case underscores the intricate relationship that exists between corporations and their products. For claimants, such verdicts symbolize hope and affirm that the legal system is a viable avenue for their grievances to be acknowledged and addressed. Conversely, for corporations, they act as stark reminders of their duties and the potential ramifications of their actions.

In our capacity as legal professionals, it is incumbent upon us to ensure that claimants – the individuals who are at the forefront of these legal confrontations – are adequately informed, empowered, and supported throughout the judicial process. It is vital to recognize that each case number represents a unique human story, encapsulating elements of suffering, hope, and a quest for justice.

In a world that can often seem dominated by corporate entities and prevailing power structures, verdicts such as the recent one against Bayer Monsanto highlight the potential power that individuals, when supported by a just legal system, can wield. For every claimant, it is a resounding affirmation that their voices are integral, their pain is recognized, and that justice, albeit sometimes elusive, is within reach.

Update on Tylenol Litigation: Initiation of Daubert Motions

Daniela P on September 25, 2023

Insightful Update on the Tylenol Litigation’s Daubert Hearing Proceedings

The judicial examination concerning the admissibility of general causation expert testimony in the Tylenol litigation has formally begun. On September 19, 2023, Johnson & Johnson, along with co-defendants representing retail entities, submitted a trilogy of motions intent on precluding the testimonies of the plaintiff’s general causation experts. The defense has raised questions about the scientific reliability of claims that acetaminophen consumption during pregnancy: (1) increases the risk of autism spectrum disorders, (2) elevates the risk of Attention-Deficit/Hyperactivity Disorder (ADHD), and (3) is backed by biological plausibility. Conversely, the plaintiff’s legal team has presented a series of motions aiming to exclude all expert testimonies put forth by the defense regarding general causation.

At this nascent stage of proceedings, it is challenging to predict the rulings on these motions. Opposition briefs and corresponding evidentiary materials will be filed by both parties on October 10, 2023. Subsequently, each will have an opportunity for rebuttal with reply briefs due on October 20th. A clearer understanding of the possible judicial directions will likely emerge only after the comprehensive briefing of each motion.

Further insights into the methodology of the presiding Judge Cote may be ascertained from a public telephonic status conference scheduled for early October. During this session, Judge Cote will delineate the expectations and specifics of the Daubert hearings set to commence on December 4th. This discussion may involve directives on witness examination procedures, the sequencing of testimonies, and potential limitations on the duration of oral arguments. Additionally, substantive comments from Judge Cote on the current briefs may signal her areas of interest.

It is also within the realm of possibility that Judge Cote will either request or mandate a set of questions for the counsel to address during the hearings in December, drawing parallels to the approach taken by Judge Rosenberg in the Zantac MDL Daubert proceedings of September 2022. Such an inquiry would likely underscore the issues Judge Cote deems pivotal in formulating her factual and legal conclusions.

To date, there is no record of any Daubert ruling from Judge Cote in similar product liability or mass tort cases, nor has either party cited such precedent in their filings. It is anticipated that Judge Cote will render a considered verdict on the motions, with a determination expected by mid to late January 2024.

Should the motions by the defendants be overruled, the litigation is expected to proceed to a subsequent phase, entailing: (1) the selection of bellwether plaintiffs and related discovery, (2) further Daubert motions and hearings focused on specific causation experts, and (3) the setting of bellwether trials, anticipated to be led by noted trial attorneys Mark Lanier and Mikal Watts, contingent upon the plaintiff’s causation experts prevailing against exclusion.

We will continue to provide updates as further developments arise.

Judicial Update 10.6.23: Judge Cote’s Status Conference on Daubert Hearing Procedures

In a concise telephonic status conference lasting merely 11 minutes, Judge Cote conferred with counsel regarding the logistics for the forthcoming Daubert hearings scheduled for the week of December 4th. Judge Cote immediately remarked on the uncommon nature of live expert testimonies during such hearings, indicating her preference for engaging with these testimonies only if they clarify issues arising from their written reports, depositions, or referenced scientific studies, thereby assisting her understanding.

Judge Cote assured that should she deem it necessary to solicit further explanations from specific experts during the proceedings, she will inform the parties accordingly. She emphasized efficiency in testimony, expressing her intention to conduct a thorough review of not only the briefs and reports but also the foundational studies referenced therein.

Although Judge Cote refrained from imposing oral argument constraints during the call, she signaled her willingness to hear counsel’s arguments and indicated that more concrete plans for the hearing would be forthcoming.

Upon querying the parties for their input on her preliminary views, the defendants’ counsel drew a parallel to a precedent where Judge Wolfson found live testimony beneficial after initial hesitation. Judge Cote responded by underscoring her current focus on the written briefs, indicating a readiness to request further expert testimony if necessary after the conclusion of the briefing process.

With the defense’s proposal for comprehensive witness testimony and the plaintiff’s call for a more streamlined approach, Judge Cote’s stance could be interpreted as leaning towards the plaintiffs. However, a more accurate assessment of her position will likely be available after further communication post-October 20th. Insights may also be enhanced should Judge Cote decide to present the parties with specific questions or topics to be addressed during the December hearings.

Legal Brief 10.20.23: Tylenol Case Progress

Following the submission of the final briefs on October 20th concerning the parties

’ Daubert motions, anticipation builds for further instructions from Judge Cote. Ahead of the December 4th Daubert hearing, there are several key considerations: the potential for Judge Cote to call upon specific expert witnesses, the allotment of time for each side’s oral arguments, the sequence of these arguments, and the possibility of receiving direct questions from the Judge. These forthcoming directives will offer significant insight into Judge Cote’s judicial approach and the trajectory of the hearings.

Paraquat Legal Developments: Daubert Hearings Are Over

William V on September 19, 2023

The hearings on the Daubert motions took place from August 21-24 before MDL Judge Nancy Rosenstengl. The oral arguments were, as expected, very contentious and at a very high level. The sole live witness at the hearing, specifically requested by the Judge, was Dr. Michael Wells, plaintiffs’ only general causation expert. The parties’ arguments on their respective motions to exclude other expert witnesses did not generate anywhere near the same time and heat as the arguments over Dr. Wells — which only makes sense since he is the linchpin of plaintiffs’ case.

Dr. Wells did a meta-analysis of seven (7) prior epidemiological studies of the causal link between exposure to Paraquat and Parkinson’s Disease, and he concluded that the odds ratio was 2.8. Syngenta and Chevron argued that he failed to properly consider let alone give proper weight to three more recent and much larger epidemiological studies, which did not show a causal link between Paraquat and Parkinson’s Disease — and used defendant boilerplate words such as “cherry-picking” to characterize his analysis as unreliable and thus warranting exclusion. Dr. Wells and plaintiffs’ counsel Eric Kennedy strongly rebutted those attacks, emphasizing Dr. Wells did consider the other studies but gave them no weight in his analysis because they were lower quality and designed differently than the particular studies he relied upon.

Defendants also cited three prior litigations where Dr. Wells’ expert opinions had been allegedly excluded but plaintiffs’ counsel Kennedy seemed to adequately rebut those assertions as gross mischaracterizations.

In her questioning of counsel during the hearings, Judge Rosenstengl brought up the Seventh Circuit’s Manpower ruling (where that Court had reversed a district court judge for improperly excluding an expert on a Daubert motion). The language in that Seventh Circuit opinions warns district court judges not to overstep their limited role as “gatekeeper” on Daubert motions and intrude on the exclusive province of the jury as sole arbiter of the credibility and weight of expert witnesses’ opinions The Judge’s references to Manpower seemed somewhat heartening, signaling that she intends to tread carefully while wrestling with the critical question of allowing or excluding Dr. Wells and the other experts (on both sides).

At her request the parties filed 20-page post-hearing briefs on September 8, 2023.

She warned that she had much additional reading, and rereading, to do and, consequently, booted the upcoming October date for the first bellwether trial to some as-yet-unknown future date – all premised of course on her denying the Daubert motions aimed at excluding Dr. Wells (and excluding plaintiffs’ other expert witnesses) This is the third rescheduling of the trial.

It’s extremely hard to handicap the outcome of the Daubert motion aimed at Dr. Wells. The Judge did not appear to be anywhere close to making up her mind, or even leaning in one direction, by the end of the hearings.

Rulings on all the Daubert motions will hopefully be issued before year end.

Recent Judicial Proceedings in Paraquat Multidistrict Litigation Await Decision by Judge Rosenstengl

Daniela P on September 19, 2023

Awaiting Judge Rosenstengl’s Determination on Daubert Hearings in Paraquat Litigation

The series of Daubert hearings, pivotal in the ongoing multidistrict litigation concerning Paraquat, concluded after intensive deliberations from August 21 to 24, under the adjudication of MDL Judge Nancy Rosenstengl. The proceedings, marked by vigorous debate, centered predominantly on the testimony of Dr. Michael Wells, the plaintiffs’ principal general causation expert. His appearance was at the behest of Judge Rosenstengl, indicating the weight his testimony held in the litigation.

Dr. Michael Wells’ Testimony: A Focal Point of the Daubert Hearings

Dr. Wells’ testimony involved a meta-analysis of seven epidemiological studies that examined the potential link between Paraquat exposure and Parkinson’s Disease, with his findings suggesting an odds ratio of 2.8. The defendants, Syngenta and Chevron, challenged his methodology, claiming an oversight of three larger, more recent studies that contradicted his conclusions. They used critical language, implying that Dr. Wells selectively reported data to support his position, thus questioning the reliability of his analysis.

In response, Dr. Wells, supported by plaintiffs’ counsel Eric Kennedy, contended that the newer studies were of inferior quality and methodologically distinct, thereby justifying their exclusion from his analysis. Furthermore, the defense’s citation of past instances where Dr. Wells’ expert testimony was purportedly disregarded was met with firm refutations from counsel Kennedy, who insisted these references were misrepresented.

Defense Challenges and Plaintiff Rebuttals in Paraquat Case

Throughout the hearings, Judge Rosenstengl was discerning, alluding to the Seventh Circuit’s Manpower decision which admonished lower courts against exceeding their ‘gatekeeping’ mandate on Daubert motions, reminding them of the jury’s exclusive role in determining the veracity and significance of expert testimony. Her allusions to this precedent appeared to indicate a meticulous approach in her pending decisions concerning the admissibility of Dr. Wells’ and other experts’ testimonies.

Following the conclusion of the hearings, Judge Rosenstengl requested additional post-hearing briefs from the parties, extending to 20 pages, which were filed on September 8, 2023. She acknowledged the extensive review that lay ahead, leading to the deferment of the first bellwether trial, originally scheduled for October, to an undetermined later date. This rescheduling is contingent on her potential denial of the Daubert motions seeking to exclude Dr. Wells and other expert witnesses offered by the plaintiffs, marking the third postponement of the trial.

Given the complexities of the arguments presented, the anticipation of the outcomes of the Daubert motions has become increasingly challenging. Judge Rosenstengl exhibited no clear inclination towards a decision at the hearings’ conclusion, underscoring the unpredictability of the ruling.

A definitive judgment on the Daubert motions is expected before the close of the year, a decision that will have significant implications for the direction of the litigation.

Tylenol Litigation Update: FDA’s Stance Reveals Complex Implications

Daniela P on September 11, 2023

FDA’s Response in Tylenol Autism/ADHD Litigation: An Overview

In the unfolding Tylenol litigation, the U.S. Food and Drug Administration (FDA) has provided a nuanced response to inquiries concerning the potential risks associated with acetaminophen use during pregnancy. In late April 2023, the presiding Judge Cote solicited the agency’s perspective on whether warnings about the risk of autism and Attention-Deficit/Hyperactivity Disorder (ADHD) should be explicitly stated on acetaminophen labels for pregnant women. Although the FDA’s feedback was initially due by the end of July, the deadline was extended at the request of the U.S. Government to September 15th.

Ahead of schedule, on September 8th, the U.S. Attorney for the Southern District of New York, on behalf of the FDA, submitted a letter and an accompanying report. This submission occurred 11 days before the deadline for the parties to present their initial Daubert briefs, which are intended to challenge and aim to exclude their opponents’ general causation experts.

The disclosure from the Department of Justice (DOJ) indicated that the FDA currently views the post-2015 scientific studies it has reviewed as inconclusive regarding causality. This perspective is seen as unfavorable by those who advocate for a definitive link between acetaminophen use during pregnancy and developmental disorders.

However, there is an aspect of the FDA’s position that may be perceived positively by the plaintiffs. According to the DOJ letter, the FDA has chosen not to assert a position within the ongoing litigation, aiming not to impede Judge Cote’s evaluative process of expert testimony during the Daubert hearings. Notably, the FDA has refrained from commenting on potential alterations to the current warning labels, thus abstaining from influencing the judicial procedures directly.

This development prompted Johnson & Johnson and Walmart to consider additional legal maneuvers, anticipating that Judge Cote might be persuaded to reassess her previous rulings that dismissed their preemption claims. In response to a subsequent request from Johnson & Johnson for a status conference to deliberate on the implications of the FDA’s stance, Judge Cote promptly declined, reasserting her focus on the upcoming September 19 Daubert motions.

The future implications of the FDA’s position remain to be fully understood. Defendants are expected to leverage the FDA’s findings in the Daubert motions and may seek to inform juries of the agency’s stance in future bellwether trials. Conversely, the plaintiffs’ representatives are likely to contend that unless FDA officials are subject to deposition and cross-examination, the disclosure of the FDA’s views could unfairly prejudice the jury against the plaintiffs.

Following the FDA’s response, the plaintiffs’ leadership has made public a previously submitted letter to the FDA, arguing that recent scientific studies do indeed establish a causal link. This public disclosure suggests an increased probability that subsequent filings from both parties, including the September 19 Daubert motions and the October 10 opposition briefs, may also enter the public domain rather than being filed confidentially.

While the FDA’s current position on the recent studies does not endorse causality, the agency’s non-interventionist approach to the warning label debate and the Daubert process presents a complex tableau. The litigation community now eagerly awaits the impending exchange of Daubert motions, expert reports, and briefs due for submission on September 19, 2023.