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. 

Significant Progress in Bard Hernia Mesh Litigation: Confirmation of Upcoming Stinson Bellwether Trial

Daniela P on August 23, 2023

Bard Hernia Mesh Update: Stinson Bellwether Trial Advances Despite Defense Motion 

In a noteworthy advancement within the Bard multidistrict litigation (MDL), the presiding court has confirmed that the Stinson bellwether trial, designated as the third of its kind, is scheduled to proceed on October 16, 2023.

On May 24, 2023, the defendants submitted a legal memorandum asserting that both plaintiff Aaron Stinson and Jacob Bryan, the fourth bellwether trial plaintiff scheduled for January 2024, no longer serve as suitable “representative” bellwether plaintiffs. The defendants posited that the forthcoming jury trials involving these plaintiffs would no longer yield substantial insights applicable to the broader MDL case pool, recommending their complete substitution with new plaintiffs. The defendants’ argument highlighted that Mr. Stinson’s additional surgery in May, involving the removal of a second Bard hernia device and subsequently his right testicle and spermatic cord, presented “new facts” that were not emblematic of the majority of MDL cases. They also stated that Mr. Bryan’s potentially evolving medical condition, with additional treatment and possible surgery on the horizon, rendered his case a “moving target.” 

On June 20, MDL Judge Edward Sargus ruled against this motion. The Plaintiffs’ Steering Committee (PSC) contended regarding Mr. Stinson that they plan to demonstrate that all subsequent injuries, including the Bard Mesh surgical removal and orchiectomy, stemmed from the initially defective PerFix Plug implant. The Committee asserted no claims against the Bard Mesh implanted in 2017 and removed in May 2023. Judge Sargus set limitations on the PSC from disclosing certain information regarding the Bard Mesh, while permitting the defense to propose that the recent surgery and Bard Mesh could be the intervening causes of Mr. Stinson’s orchiectomy. 

Furthermore, Judge Sargus dismissed the defense’s characterization of Mr. Bryan’s symptoms as “new injuries,” noting that Mr. Bryan had reported groin and testicular pain in a 2019 deposition, thereby the defense was already aware of these complaints. 

This effectively undermined what appeared to be the defense’s strategy to delay the impending bellwether trials. 

Subsequent to these developments, on July 13, Judge Sargus sanctioned a joint stipulation that established deadlines for the submission of additional post-operative medical records for Mr. Stinson, further depositions, the delivery of the parties’ revised expert reports, supplemental expert depositions, as well as additional Daubert motions and motions in limine. 

The next Case Management Conference in this ongoing MDL is slated for August 29, 2023, where the parties will continue to prepare for the trials ahead. 

Comprehensive Analysis of the Ongoing Roundup Litigation Landscape

Daniela P on August 11, 2023

Navigating the Complex Terrain of Roundup Litigation

The protracted litigation surrounding Roundup, the widely used herbicide, is entering a pivotal phase as Monsanto/Bayer prepares for a series of jury trials. The imminent trials represent a crucial juncture, embodying both the possibility of significant rewards for plaintiffs and the inherent risks of the litigation process. 

In the forthcoming months, Monsanto is scheduled to confront a sequence of jury trials in the plaintiff-oriented Court of Common Pleas in Philadelphia, with the first trial commencing on October 5, 2023. Additional trials will unfold into 2024 in Cobb County, Georgia, where Monsanto is yet to face litigation. Concurrently, a trial is underway in St. Louis County, Missouri, subsequent to a jurisdictional decision by the Missouri Supreme Court transferring certain lawsuits from St. Louis City court to the County. Another trial is also scheduled to take place in San Diego later in September. 

These multiple trials could influence Bayer to consider settling claims on a broader scale, especially if plaintiff verdicts induce market pressures. Contrarily, Monsanto has gained some legal traction from a recent ruling by the Eleventh Circuit Court of Appeals, which remanded a key preemption question in the Carson v. Monsanto appeal. 

Monsanto’s defense hinges on the claim that federal law, through the Environmental Protection Agency’s (EPA) stance that glyphosate is non-carcinogenic, preempts state law claims of failure to warn about the risks of Roundup. This argument, however, has been consistently rejected by lower and appellate courts, including the Ninth Circuit in the Hardeman case, and the United States Supreme Court has declined to review the appeal. 

The complexity of the legal strategy extends to the Eleventh Circuit, where an en banc panel recently decided not to fully overturn a three-judge panel’s decision but instead remanded the case for further consideration. Monsanto’s legal maneuvers continue as it seeks to argue its position before the Eleventh Circuit, aiming for a favorable decision that might provoke a circuit split, thereby increasing the likelihood of Supreme Court consideration. 

In the interim, Monsanto/Bayer faces the daunting reality of over 45,000 pending claims. Substantial verdicts in the upcoming trials across multiple jurisdictions could further compel the company to settle in order to mitigate litigation risk and alleviate shareholder concerns. 

Despite the potentially heightened risks for Roundup victims presented by the appellate proceedings, the prospects of the forthcoming jury trials in favorable courts seem to offer a counterbalance of potential rewards. 

Legal Updates: 

  1. 10.6.23 Update: The landscape of the Roundup litigation was altered by a recent directed verdict in Monsanto’s favor in a St. Louis County trial. However, the onset of jury selection in several trials, including those in Philadelphia and San Diego, signals a busy period for Monsanto, potentially impacting its approach to settlements.
  2. 10.20.23 Update: A plaintiff victory in St. Louis has disrupted Monsanto’s succession of trial wins. While punitive damages were not awarded, this outcome represents a significant shift, ending Monsanto’s winning streak.
  3. 10.25.23 Update: Further details on the St. Louis victory highlight the implications of the Missouri jury’s decision, including Monsanto’s lack of settlement offers and the effective presentation of new arguments regarding Roundup’s carcinogenic constituents. As the Philadelphia and San Diego trials proceed, additional cases loom on the horizon, setting the stage for further developments.

In conclusion, Monsanto/Bayer remains in a legal quandary as it navigates an array of jury trials and complex appeals. The outcome of these processes will significantly influence the legal landscape concerning Roundup litigation and the broader implications for corporate liability and consumer safety. 

Tylenol Litigation: Getting Closer to the Daubert Motions

William V on July 29, 2023

Judge Cote has largely ruled in plaintiffs’ favor to date on most of the defendants’ initial motions — e.g., denying Walmart’s preemption motion twice and J&J’s preemption motion, and various other motions to dismiss claims on other grounds. Most recently she denied J&J’s motion seeking her permission to file an immediate (interlocutory) appeal from her preemption ruling to the Second Circuit Court of Appeals.   
Plaintiffs’ leadership have filed amended master complaints against J&J and separately, against the various retail chain defendants who had manufactured and sold their own house brands of acetaminophen (i.e., Walmart, and other major retailers). These master complaints reflect the narrowing of plaintiffs’ causes of action in accordance with Judge Cote’s rulings.  

In further efforts to focus the litigation, parties have agreed to dismiss without prejudice complaints where Texas law clearly governs, since Cote previously dismissed certain claims against retailers under a Texas statutory “safe harbor” preemption clause for retailers. The parties asked Judge Cote to resolve the parties’ dispute over whether certain additional plaintiffs’ complaints are governed by Texas choice of law (and thus dismissible) or a different state’s law (and thus remaining viable).  

As previously written, she has also scheduled a “rocket docket” deadline, with special attention for Daubert motions to be filed on September 19th and a Daubert hearing on the motions during the week of December 4th. The parties will continue the process of exchanging initial and rebuttal expert reports in the weeks leading up to September 19, 2023. 

On July 28, 2023, the Department of Justice asked Judge Cote for a time extension until September 15th to respond to Cote’s unusual invitation to the federal government to weigh in on whether the label for acetaminophen should be changed to provide additional warnings of risk to pregnant women taking the drug. She likely granted the DOJ’s request to obtain a glimpse of how relevant regulatory agencies (especially the FDA) view this dispute in the context of their interpretation of public health and safety requirements.

Watch this space for links to the September 15th and 19th filings — to the extent they are public and not sealed.