With Trials Looming, Monsanto Looks to Settle Some Roundup Cases
Four Roundup trials are set to start in the next month, including three in California, as Bayer's Monsanto is in talks to settle some of the thousands of lawsuits across the country.
January 16, 2020 at 07:53 PM
8 minute read
The original version of this story was published on Law.com
Monsanto Co. is likely to reach settlements of thousands of Roundup lawsuits across the country as trials are set to begin in the next month, with the first scheduled on Friday.
The trials, in California and Missouri, come as Monsanto, owned by Bayer AG, is in talks to settle batches of the 42,700 lawsuits across the country brought by individuals claiming they got non-Hodgkin lymphoma due to Roundup exposure. The talks follow jury verdicts of $289 million and $2 billion in California state courts, and an $80 million jury award in the first bellwether trial in the multidistrict litigation in San Francisco federal court.
Judges have postponed a handful of trials planned for this month, but four remain scheduled to begin in the coming weeks.
In a statement, Bayer said: "While we have great sympathy for Ms. Caballero and the Wade plaintiffs, the extensive body of science over four decades and the determinations of leading health regulators worldwide support the conclusion that Roundup is not responsible for their illnesses. Relying on this scientific record and the support of the U.S. Government and EPA, we also continue to pursue appeals in the Hardeman, Johnson and Pilliod cases where we have strong arguments on preemption, causation, punitive damages and more. Meanwhile, we continue to pursue mediation in good faith to explore whether we can reach a settlement on reasonable terms that includes a process to bring reasonable resolution to the overall litigation."
"There's a lot of incentive on both sides to try to come up with certain types of settlements," said Adam Zimmerman, of Loyola Law School, Los Angeles. "I don't think a few more cases set for trial necessarily adds pressure, but what it does do is creates an environment to have productive conversations to resolve the cases in chunks, or in a larger way."
A global settlement, he said, was unlikely.
"Even if you settle all the cases now, if the theory of liability is people who are exposed to Roundup are getting cancer, there are future claims for people who haven't manifested illnesses yet or been exposed yet," Zimmerman said.
What's more likely is Monsanto settling chunks of cases, perhaps based on the inventories of certain plaintiffs attorneys in the Roundup litigation.
"They try to get an average value for each of the cases they have, and try to make offers and go back and forth, and see if they can't settle fairly substantial clumps of cases that particular counsel have," said Carl Tobias, a professor at the University of Richmond School of Law.
U.S. District Judge Vince Chhabria of the Northern District of California, who is overseeing the multidistrict litigation, appointed the mediator, Kenneth Feinberg, who did not respond to a request for comment.
But the multidistrict litigation, where more than 2,700 of the lawsuits are coordinated, represents a small share of the overall Roundup litigation.
"There's more than just the MDL cases out there," said plaintiffs lawyer Majed Nachawati, co-founding partner of Dallas-based Fears Nachawati Law. "If you look at the federal MDL, the number of filings there versus the number of filings in state court is like night and day."
There is also a difference of opinion among plaintiffs lawyers over what is fair compensation and other relief to their clients. Responding to the reports of Roundup settlements, Nachawati said in a statement earlier this week, "A coalition of law firms exists that are unwilling to sell their clients down the river in a cheap deal. This coalition represents thousands of claimants."
Nachawati said that settling the cases in groups is part of Monsanto's and Bayer's legal strategy. "It gives them a negotiating edge to say, 'We'll do firm-to-firm inventory settlements,'" he said. "What they're hoping is they can take out the weak links."
About the Upcoming Trials
The Miller Firm, which played a prominent role in obtaining the Roundup verdicts in California state courts, is leading three of the upcoming trials. Founder Michael Miller, who works in Orange, Virginia, also serves as co-lead plaintiffs counsel in the multidistrict litigation.
Miller confirmed his role in the upcoming trials but declined to comment further.
Noticeably absent from the upcoming trials is Los Angeles-based Baum, Hedlund, Aristei & Goldman, whose partner, R. Brent Wisner, was co-lead plaintiffs counsel in the California state court trials. On the defense side, some of the same firms that handled Monsanto's previous Roundup trials, such as Washington, D.C.'s Wilkinson Walsh + Eskovitz and Winston & Strawn, are leading the upcoming trials.
Two of the upcoming trials are in California state court venues that are new to the Roundup litigation, and another is the first to occur in Missouri state court. The fourth is the second bellwether case in the multidistrict litigation.
All are challenging venues for Monsanto.
"St. Louis is not a very favorable venue for them, given what's happened in talc and other litigation that's gone on there," Tobias said. "My guess is they want to try to avoid that. And California hasn't been very favorable, either. So I think those are drivers, and they're important to Bayer. They don't want to keep piling up these huge multimillion-dollar verdicts."
Here is more information about the upcoming trials:
- Caballero v. Monsanto
Trial date: Jan. 17, 2020.
Court: Contra Costa County Superior Court in California.
About the case: Kathleen Caballero alleges she got non-Hodgkin lymphoma after spraying Roundup from 1977 to 2018, according to court documents. From 1977 to 1986, she regularly used Roundup as part of her gardening and landscaping business and as an owner of a peach and sugar cane farm.
Lead plaintiffs attorney: Curtis Hoke, an associate at The Miller Firm, and Steven Brady of Brady Law Group in San Rafael, California. Hoke and Brady both served on plaintiffs teams in the previous California state court trials.
Lead defense attorney: George Lombardi, co-chairman of the litigation department and a Chicago partner at Winston & Strawn. Lombardi was on Monsanto's trial team in the previous California state court trial that ended in a $289 million verdict. Dentons is assisting in the case.
- Wade v. Monsanto
Trial date: Jan. 21, 2020.
Court: St. Louis City Circuit Court in Missouri.
About the case: Four plaintiffs—Christopher Wade, Glen Ashelman, Bryce Batiste and Ann Meeks—are set to try their claims together. It would be the first Roundup trial to consolidate different plaintiffs' claims together, and the first in Missouri.
Lead plaintiffs attorney: Michael Miller and David Dickens of The Miller Firm, and James Corrigan, founding member of O'Leary, Shelton, Corrigan, Peterson, Dalton & Quillin in St. Louis. Dickens also was on the plaintiffs' teams for both California state court trials.
Lead defense lawyer: Anthony Upshaw, a Miami partner at McDermott Will & Emery. Husch Blackwell and Arnold & Porter Kaye Scholer are assisting.
- Cotton v. Monsanto
Trial date: Jan. 24, 2020.
Court: Riverside County Superior Court in California.
About the case: Treesa Cotton alleges she used Roundup on her property for several years. She was diagnosed with non-Hodgkin lymphoma in 2015 and now "requires and relies on both a private care giver and her family for care and assistance," according to the complaint.
Lead plaintiffs attorney: Lori Andrus and Jennie Lee Anderson of San Francisco's Andrus Anderson. Andrus is co-liaison counsel in the multidistrict litigation.
Lead defense team: Dentons. Listed in court records are partners John Vales, in Short Hills, New York; Mordecai Boone in San Francisco; and Frederic Norris in Los Angeles.
- Stevick v. Monsanto
Trial date: Feb. 24, 2020.
Court: U.S. District Court of the Northern District of California.
About the case: Elaine Stevick alleges she used Roundup in her garden until 2014, when she was diagnosed with non-Hodgkin lymphoma. Her husband, Christopher Stevick, is bringing claims for loss of consortium.
Lead plaintiffs attorney: Brian Brake and Tayjes Shah at The Miller Firm, and Mark Burton of Audet & Partners. Burton, who is co-liaison counsel in the multidistrict litigation, was on the trial team that landed the $2 billion verdict.
Lead defense attorney: Brian Stekloff, founding partner of Wilkinson Walsh + Eskovitz, who was lead defense counsel in the $80 million verdict. Hollingsworth and Arnold & Porter Kaye Scholer also are involved in the case.
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