Monsanto Roundup Lawsuit Update

March 19, 2025 – Push for Roundup Consolidation in New Jersey

A second request to centralize lawsuits against Monsanto and Bayer over Roundup exposure has been submitted to the New Jersey Supreme Court. Plaintiffs in 36 cases across eight jurisdictions seek to consolidate their cases in Atlantic County Superior Court, arguing that centralization would improve judicial efficiency, streamline discovery, and prevent inconsistent rulings.

Currently, 41 cases are pending in New Jersey, with plaintiffs asserting that Roundup exposure led to serious health conditions, including non-Hodgkin lymphoma. The plaintiffs anticipate that if their request is approved, the total number of cases could exceed 100. The New Jersey Supreme Court previously denied a similar request in June due to an insufficient number of cases. Monsanto has opposed the renewed bid, maintaining that the number of claims does not justify multicounty litigation.

March 11, 2025 – Bayer “Threatens” to Take Roundup Off the Market

Bayer is telling Congress it may stop selling Roundup in the U.S.  Bayer is lobbying lawmakers for legal immunity, arguing that federal EPA approval should block injured plaintiffs from suing under state laws. Meanwhile, 67,000 more lawsuits remain unresolved, and countless other individuals may have been harmed by prolonged exposure to Roundup.

Rather than taking responsibility for the devastating effects of glyphosate, Bayer is doubling down on corporate defense strategies, petitioning the U.S. Supreme Court again, and seeking legislative protection. It has not yet made good on its veiled threat to pull Roundup from the U.S. market, but if it ever does, it will only be because litigation has made it too costly to continue profiting from a dangerous product.

March 10, 2025 – Selling Stock to Pay Roundup Settlements

Bayer is attempting to raise billions of dollars by seeking permission from its shareholders to issue additional stock. This move highlights the significant financial challenges the company is facing due to the numerous lawsuits that remain pending. The announcement caused Bayer’s stock to drop 10%, making investors even more worried about the company’s future. It hard to understand why this would tank the stock.  It is not as if this was big news, Bayer would have to find the money somewhere to fund settlements.

March 3, 2025 – Nothing New in MDL

Zero cases were added to the Round MDL last month. The total number of pending MDL cases remains at 4,414.

February 4, 2025 – MDL Adds 14 New Cases

The Roundup cancer MDL saw 14 new cases added over the last month, bringing the total number of pending cases to 4,414. This is somewhat surprising, given the increasing shift of Roundup litigation to state courts, where plaintiffs have seen significant successes in the last 18 months. Still, the relatively low number of new filings suggests that the MDL may be nearing its endgame, with most activity now concentrated in state court dockets.

January 30, 2025 – New Study on Birth Weight and Roundup

January 28, 2025 – Roundup Settlement Rumors

January 4, 2025 – Caranci Appeal

Monsanto has appealed a $175 million jury verdict in Pennsylvania Superior Court, seeking to overturn the decision in favor of Ernest Caranci, who claimed Roundup weedkiller caused his cancer.

Monsanto argues that a court clerk improperly coerced the jury into reaching a decision by suggesting they would have to return for several days of deliberation before a mistrial could be declared. Monsanto asserts this instruction deviated from Pennsylvania’s standard guidance, allegedly pressuring the jury to reach a verdict.

The appeal also challenges Judge James C. Crumlish III’s evidentiary rulings, including the exclusion of evidence showing global scientific consensus on the safety of glyphosate, the active ingredient in Roundup. Monsanto argues that this exclusion, coupled with the inclusion of a foreign report favoring the plaintiff, created a double standard and undermined the fairness of the trial. Additionally, Monsanto cites it new favorite case, the Third Circuit’s Schaffner v. Monsanto ruling, which preempts state law failure-to-warn claims, as grounds for appeal.

The foundation of Monsanto’s appeal appears unsteady and unconvincing.

January 3, 2025 – New MDL Case Total Update

Lawyers are still filing lawsuits in the MDL. The Roundup class action added 27 new cases during December. There are now a total of 4,400 pending lawsuits in the MDL.

December 10, 2024 – Glyphosate and Long-Term Neuroinflammation

A recent study has revealed alarming connections between glyphosate exposure, the active ingredient in Roundup, and long-lasting damage to the brain. Researchers found that even after a six-month recovery period, glyphosate and its metabolite, aminomethylphosphonic acid, persisted in the brain tissue of mice, exacerbating inflammation and Alzheimer’s disease (AD)-like pathology. Exposed mice exhibited an increase in amyloid plaques, tau tangles, and elevated levels of inflammatory cytokines, all hallmark features of neurodegenerative disorders like AD. The study also highlighted heightened anxiety-like behaviors in glyphosate-exposed mice, linking these to changes in the brain’s structure and chemistry caused by prolonged neuroinflammation.

This research is particularly concerning for Roundup users.  It underscores the potential for glyphosate to not only harm the body but also disrupt critical neurological processes. Chronic exposure to glyphosate may amplify risks for developing neurodegenerative conditions by promoting inflammation, impairing cognitive functions, and altering key brain proteins. For individuals already struggling with health complications related to glyphosate exposure, this study provides additional evidence of its long-term dangers that go beyond non-Hodgkin’s lymphoma.

This is not the first study to come to these conclusions. Monsanto will argue that the findings are limited to animal models and may not directly apply to humans. But the literature on the persistence of glyphosate’s metabolite in brain tissue and its correlation with hallmark features of Alzheimer’s disease cannot be ignored. The study is our all fours with a growing body of evidence linking glyphosate to inflammatory and neurodegenerative processes.

December 8, 2024 – Mistrial in Chicago

November 20, 2024 – RFK Jr. and Roundup

Robert F. Kennedy Jr. has long been a vocal critic of Roundup. In 2018, he was involved with the legal team representing Dewayne Johnson, a former school groundskeeper who alleged that prolonged exposure to Roundup caused his non-Hodgkin’s lymphoma. Johnson’s case is widely regarded as the starting point for this litigation. A jury awarded Johnson $289 million, finding that Monsanto acted with “malice and oppression” by failing to warn consumers about the potential health risks of its product.

After the verdict, Kennedy remarked, “This jury found Monsanto acted with malice and oppression because they knew what they were doing was wrong and did it with reckless disregard for human life.” He called the decision a strong message to Monsanto’s boardroom. You like him or hate him.  But Kennedy is clearly on the right side of this issue.  (Here is a Facebook post from him. )

If Kennedy is confirmed as Secretary of Health and Human Services, his leadership could meaningfully influence the Roundup litigation. True to his history, he is likely to advocate for stricter oversight of herbicides and pesticides, potentially pushing federal agencies like the EPA or FDA to re-evaluate the safety of glyphosate. Any regulatory action questioning or limiting glyphosate’s use could strengthen plaintiffs’ claims, supporting arguments that Roundup is hazardous and inadequately regulated.

Such a shift in regulatory and political climate—especially under a conservative administration—might force Bayer to do a reset on its jumbled legal strategy and reconsider a more aggressive pursuit of a global Roundup settlement.

November 16, 2024 – Monsanto Win in Philadelphia

Monsanto won the Womack trial in Philadelphia yesterday.  Good plaintiffs’ lawyers trying the case, the last verdict was $78 million…it was a good recipe for victory.  But we are not going to win every trial in this litigation.  This was a tougher case with only ten residential uses of the product starting in 2015.

October 24, 2024 – Massachusetts State Court Follows 3rd Circuit

A Massachusetts state court has found that federal law preempts a plaintiff’s claims that Monsanto failed to warn about the potential dangers of its weed killer, Roundup.  Plaintiff’s design defects remain, but it is certainly a blow to lose the failure to warn claim.

The ruling mirrors the 3rd Circuit’s opinion in Schaffner v. Monsanto.  The concern is that this case provides judges who are inclined to favor corporate protection, such as those who support Monsanto, with a legal basis to do so, and we will likely see more opinions like this.

October 21, 2024 – Roundup Skin Cancer Lawsuit Fails

In a new ruling Friday, the Fifth Circuit upheld summary judgment in favor of Monsanto in a lawsuit filed by the family of a doctor who they claimed died of skin cancer due to exposure to Roundup.

There was a statute of limitations problem. Louisiana has a draconian one-year deadline to file. The court also excluded the family’s expert witness, finding his causation methods unreliable. The expert’s reliance on a study showing arsenic in some Roundup bottles was criticized for failing to prove a direct link to the doctor’s exposure or provide sufficient evidence to support his cancer diagnosis.

I have no idea if skin cancer can be related to Roundup.  I have not heard that.  I have heard, besides NHL,  Hodgkin’s lymphoma, multiple myeloma, leukemia, Parkinson’s, reproductive issues such as hormone disruption and fertility problems, as well as liver and kidney damage observed in some animal studies. Other potential health effects include respiratory irritation, particularly for agricultural workers, and an increased risk of birth defects.

Can any of these be proven in court?  Probably not.  But it seems pretty unlikely that NHL is the only health complication these chemicals cause.

October 10, 2024 – New $78 Million Verdict in Philadelphia

The jury in Melissen awarded $3 million in compensatory damages and $75 million in punitive damages. Plaintiffs needed a big win, and we got one.

September 26, 2024 – 3rd Circuit Ruling Stands

Unfortunately, the Third Circuit declined to revisit its decision that federal law preempts a more stringent Pennsylvania statute requiring cancer warnings on chemicals. Instead, it upheld Monsanto’s victory in a case in which a man claimed the company’s Roundup herbicide caused his illness.

This leaves in place the court’s finding that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) expressly preempts any state law labeling requirements that differ from or add to FIFRA’s standards.

As discussed in the August 16 update below, the EPA approved labels that did not include a cancer warning. Since FIFRA requires health warnings on pesticide labels to match those approved by the EPA, the court’s reasoning is that the state law’s requirement to include a cancer warning conflicts with federal regulations and is therefore preempted by federal law.  The court is on an island – no other courts have agreed.

We need some fresh momentum, and the prediction here is that we will get that momentum with a win in Melissen v. Monsanto, which is still in trial in Philadelphia right now.

September 16, 2024 – New Trial Starts Today

Philadelphia’s sixth Roundup trial, Melissen v. Monsanto, is set to start today. A jury was selected last week.  Hopes are high for this case.

September 11, 2024 – Loss in Philadelphia

In Young v. Monsanto, a Philadelphia jury cleared Monsanto of liability, rejecting claims that its Roundup weedkiller caused the plaintiff’s non-Hodgkin lymphoma. The jury found that the plaintiff did not provide sufficient evidence to prove that Roundup was the cause of his cancer.

Plaintiffs will not win every Roundup lawsuit.  Some cases are stronger than others. But to put this in context, in the five Roundup cases tried in Philadelphia, plaintiffs have won three. The biggest verdict was $2.25 billion (later reduced to $404 million so we will use that number), while the two other wins included verdicts of $3.5 million and $175 million. Including those two losses, the average of these verdicts is approximately $194.17 million.

September 4, 2024 – Missouri Loss Affirmed

A Missouri appeals panel upheld a trial court victory for Monsanto Co. in a Moore v. Monsanto. The appeals court supported the trial court’s decision to exclude testimony from one of Moore’s experts.

The court said that the circuit court correctly excluded a witness who was not qualified as an expert. Additionally, the court found no error in not granting a mistrial based on Monsanto’s comments during its opening statement suggesting Moore would not present a medical doctor to testify about causation. Moreover, the court upheld the decision to deny Moore’s motion to strike a juror for cause, affirming the juror’s ability to remain fair and impartial despite a past business relationship with Monsanto.

This has been a few good weeks for Bayer. Will they take their momentum and try to start settling these lawsuits to save their company or will they double down and let the tide turn against them once again?  History suggests the latter.

September 3, 2024 – MDL Experts Motions

There are still 4,337 cases pending in the Roundup MDL in federal court. This number has changed very little in over 3 years.

In the MDL, Monsanto has filed a motion to exclude the testimony of seven plaintiffs’ experts: Dr. Peter T. Silberstein, Dr. Bruce Woda, Dr. Lawrence M. Weiss, Dr. Craig Nichols, Dr. Richard Bakst, Dr. William Fleming, and Connie Welch-DuJardin. Plaintiffs’ filed their responses to these motions on Friday.

August 20, 2024 – New Trial in Philadelphia

The 5th Philadelphia Roundup trial is underway in Young v. Monsanto.  Opening arguments began yesterday.  Plaintiffs are looking to with their fourth trial in five tries in Philadelphia.

August 16, 2024:  Big Appellate Win for Bayer

Bayer won a big victory in the 3rd Circuit yesterday. The court ruled that federal pesticide labeling regulations preempt state laws. This decision, stemming from a case in Pennsylvania, centers around whether the EPA approved pesticide labels, which do not include cancer warnings for Roundup, override state requirements for such warnings.

The court emphasized that once the EPA approves a label that omits specific health warnings, state laws demanding those warnings are preempted by federal law.

Chief Judge Michael A. Chagares wrote that “Because regulations promulgated to implement FIFRA require the health warnings on a pesticide’s label to conform to the proposed label approved by the EPA during the registration process, and because during Roundup’s registration process the EPA approved proposed labels omitting a cancer warning following an extensive review of scientific evidence concerning Roundup’s possible carcinogenicity, we conclude that the alleged state-law duty to include the Cancer Warning on Roundup’s label imposes requirements that are different from those imposed under FIFRA, and that it is therefore preempted by FIFRA.”

I don’t think Bayer’s fantasy of this going to the U.S. Supreme Court will become a reality. But we do now have a split among federal appellate courts over the issue of federal preemption of state warning requirements on pesticides. So, it is more realistic today than it was before this opinion.

Bayer stock is up 10% this morning on the news.

July 23, 2024: Important Appellate Win in Oregon

Plaintiff won a big appeal of a jury verdict in Oregon.  The plaintiff contended that the trial court erred by excluding testimony from his expert, Dr. Charles Benbrook, regarding EPA regulations.

Benbrook was prepared to explain the overall regulatory framework for pesticides in the United States, including the processes and criteria the EPA uses to evaluate and approve pesticide products. This would encompass the complexities of FIFRA, how the EPA assesses the safety and efficacy of pesticides, and the significance of the EPA’s labeling requirements.

His testimony was also expected to shed light on how different pesticide regulations interact, particularly focusing on the EPA’s pesticide cancer risk assessment process and policy. This would involve discussing how the EPA and other regulatory bodies like the International Agency for Research on Cancer (IARC) reach different conclusions regarding the carcinogenicity of substances like glyphosate, the active ingredient in Roundup.

The Oregon intermediate appellate court agreed was a mistake not to allow Dr. Benbrook to testify.  As a result, the appellate court reversed the judgment and remanded the case. This means the plaintiff gets a new trial.

Monsanto cross-appealed, arguing that the plaintiff’s claims were preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), looking for some court, somewhere, to buy into their argument.  The court, however, rejected Monsanto’s argument, concluding, as every court has, that the FIFRA does not preempt the plaintiff’s state law claims.  The appellate court specifically found that FIFRA’s express and implied preemption did not apply.

July 18, 2024: Plaintiffs Post-Trial Motions Fail in Kline

As expected, a motion for a new trial after plaintiffs’ loss in Kline was rejected this week.  This is plaintiffs’ only loss in Philadelphia. Plaintiffs are three for four with three substantial verdicts totaling $3.5 million, $175 million, and $2.25 billion.

Plaintiff has a strong argument on appeal. We think the trial court incorrectly restricted evidence regarding the International Agency for Research on Cancer (IARC)’s classification of glyphosate as a probable human carcinogen and a ruling by the U.S. Court of Appeals for the Ninth Circuit, which highlighted issues with an EPA study on glyphosate.

We know these have been strong arguments for jurors in other cases. But you do not expect the trial judge to reverse course. This argument will get a fresh look on appeal.

July 11, 2024 – MDL Updates

July 10, 2024 – Bayer Making Progress in Congress

The next Philadelphia Roundup trial, set to start next week, has been voluntarily dismissed by the plaintiff. The trial judge dismissed nine of the ten counts alleged in the cases, ruling that the plaintiffs had missed the statute of limitations. With only one count remaining, the plaintiff voluntarily dismissed the claim, although it looks like it will appeal.

What happened was the plaintiff was diagnosed with NHL in 2014 and tragically died in April 2020.  The wrongful death claim his family filed was filed within the statute of limitations, but the survival action was not. The fact that the victim’s doctors did not know Roundup could cause cancer, that the man continued to use Roundup after his diagnosis, and that he may have had some dementia did not persuade the judge.

It is sad that the family will not get the courtroom justice they deserve, but this dismissal has nothing to do with the merits of the case. There will be another Roundup trial in Philadelphia next month.

June 29, 2024 – Bayer’s Bill Gets Past Congressional Subcommittee

Yesterday, the House Appropriations Subcommittee on Interior, Environment, and Related Agencies voted on the fiscal year 2025 appropriations bill, which includes preemption language that would strip states of the ability to regulate pesticides, hindering victims’ ability to hold pesticide manufacturers accountable.

Getting past a bill past a subcommittee is a long way to passing it, but it is not good that Bayer is making some inroads with this nonsense.

June 28, 2024 – More on the Reduction of $2.5 Billion Verdict

June 26, 2024 – Bayer Lobbies for Law to Limit Roundup Lawsuits

Bayer has been spending a lot of money lobbying Congress to pass legislation to pass a law to limit Roundup lawsuits. This effort includes a provision in the farm bill, drafted with Bayer’s help, which would limit the ability of plaintiffs to claim they were uninformed about the herbicide’s health risks.

As we have discussed, they are also targeting state legislatures as well.  If passed, this legislation would significantly reduce Bayer’s legal liabilities and prevent future lawsuits.

This is scary because it is hard to trust Congress.  Still, Bayer’s bet the company strategies all seem to revolve around pipe dreams like “Congress will pass a law” or “the Supreme Court will change its thinking.”

June 12, 2024 – No New Jersey Roundup Class Action

The Roundup MDL judge raised concerns that some plaintiffs’ firms might be taking on too many cases just to settle them inexpensively.

The judge questioned whether some firms might be neglecting clients by taking on more cases than they can handle and settling them for minimal amounts instead of litigating.

In every mass tort, a small minority of lawyers take cases that are not viable, either because they want a large inventory of cases or they simply cannot identify which claims should be pursued. The Roundup litigation is a little ripe for this because we have big verdicts and settlements, which attract lawyers like moths to a flame.

Still, I do not think it is a big problem in this litigation. Moreover, defense lawyers have the solution to this problem in their hands: do not settle claims if they do not think the claims are compensable.

June 5, 2024 – Roundup Verdict Reduced to $400 Million

A Philadelphia Court of Common Pleas judge has reduced the verdict in McKivision from January from $2.25 billion to $400 million.

I think the jury’s verdict should be respected. But we can all agree that $400 million is still an extremely large sum of money.

May 23, 2024 – Existential Threat

Bayer AG Chief Executive Officer Bill Anderson has described the ongoing wave of Roundup lawsuits over the widely used weedkiller Roundup as an “existential threat” to the company.

Speaking at the Executives’ Club of Chicago, Anderson emphasized the dire nature of the litigation threat, admitting that the glyphosate litigation threatens Bayer’s ability to survive and innovate for farmers.

If you read these updates regularly, how long have I been saying this? I swear I think he stole it from me.   I’ve also been saying, like he says, that Monsanto makes a lot of other quality products. It does innovate for farmers.  These two things can be true at the same time.

I think it is an existential threat not because it is not a situation that can be controlled.  It is because Bayer will not do what it knows it must to resolve this litigation.  Yes, it will have to take some lumps and pay a lot of money in settlements.  But isn’t that better than going bankrupt?  That is where we are heading.

May 9, 2024 – Bayer Loses in Carson… Again

The 11th U.S. Circuit Court of Appeals yesterday decided against revisiting a February decision in Carson v. Monsanto that dismissed arguments suggesting the Federal Insecticide, Fungicide and Rodenticide Act precluded a Georgia plaintiff from claiming that the company failed to inform customers about the health risks associated with Roundup.

The first part of Bayer’s “Five Point Plan” to defend Roundup lawsuits is to get the Supreme Court to rule in its favor.  The idea was to win Carson to get a split in the circuits which might interest the Supreme Court into taking the appeal. That “dream scenario” for Bayer as a path out of the litigation nightmare it is in looking bleak. Monsanto’s theory that FIFRA  preempts failure to warn claims is just not selling with anyone outside of Bayer’s lawyers.

May 8, 2024 – New Roundup Lawsuit Filed in Delaware

Last week in Delaware state court, a new Roundup lawsuit was filed by a professional arborist who has extensively used Roundup herbicide for over two decades in his line of work. He applied Roundup on various properties to clear out undesirable turf and weeds, preparing areas for new turf and maintaining flower beds around trees. He not only used the herbicide for his clients but also on his own property. His primary choice was Roundup concentrate, which he mixed with water and sprayed using handheld and backpack sprayers, regularly exposing his skin to the chemical.

In February 2023, the arborist was diagnosed with Cutaneous T Cell Lymphoma, a type of non-Hodgkin lymphoma. Since his diagnosis, he has endured significant and disabling physical injuries resulting from both the disease and its treatments. Throughout this difficult period, his wife has been his primary caretaker, with his children also deeply affected by his condition.

The family was initially puzzled by the diagnosis, given his young age and lack of family history with the disease. They later discovered that his prolonged exposure to Roundup was likely the cause of his cancer.

This lawsuit adds to a growing docket of Roundup-related lawsuits being filed in Delaware state court.

April 6, 2024 – Billion Dollar Verdict Reduced

A judge knocked back the $1.56 billion jury verdict in state court in Missouri to three plaintiffs in November last year to $611 million.

Bayer will call it a win. Bayer stock yesterday jumped on the news.  But let’s all agree a $611 million verdict is a darn good verdict.

April 5, 2024 – Iowa Roundup Bill

The Iowa Senate approved a bill that provides legal immunity to agricultural chemical manufacturers from lawsuits alleging the companies did not inform users about the health risks, provided the products include the necessary EPA labels.  This is Iowa Senate selling out its own citizens right to a jury trial, presumably in exchange for some campaign contributions.

This bill is not law. It is unknown how the Iowa House will deal with this bill.

April 2, 2024 – New Roundup Lawsuits

We got a call a few hours ago from a new client diagnosed with NHL in 2024.

This one individual tragedy of many reminds us all how this particular litigation works.  Obviously, there is a latency period between the time of exposure to Roundup and the onset of non-Hodgkin’s lymphoma. This means that after someone is exposed to Roundup, it could take several years before symptoms of non-Hodgkin’s lymphoma manifest. The latency period is the result of the time required for the exposure to Roundup to initiate changes or damage in the body’s cells, which eventually can lead to the development of NHL and other forms of cancer.

So if Bayer stops selling Roundup today – see the March 19 update below – we will still be seeing new claims for the next 10 years. This is bad news for Bayer.  But discontinuing the product or putting a warning on it would at least start the clock on the end of any Roundup litigation.

March 20, 2024 – Key Points in Kline Appeal

Plaintiff is appealing the defense verdict in Kline v. Roundup, the one defeat we have suffered in Philadelphia.  There are three key points on appeal:

1. Exclusion of Scientific Studies and Regulatory Critiques: The plaintiff argues that the court improperly limited evidence related to the International Agency for Research on Cancer (IARC)’s classification of glyphosate as a probable human carcinogen and a U.S. Court of Appeals for the Ninth Circuit ruling that identified issues with an EPA study. These exclusions prevented the jury from fully understanding the scientific and regulatory landscape surrounding glyphosate and Monsanto’s responses to it.
2. Admission of EPA Findings: The court allowed the defense to introduce evidence from the EPA that deemed glyphosate safe. The plaintiff contends this was misleading – because it is – and that the EPA’s findings, which they argue were irrelevant to the claims of common-law negligence, gave undue weight to the defense’s argument on the safety of glyphosate.
3. Amendment of Orders Regarding Evidence: The appeal also takes issue with the timing and manner in which evidentiary orders were amended, particularly those concerning the admissibility of the IARC study. The plaintiff argues that these amendments and the subsequent trial court rulings restricted their ability to counter Monsanto’s reliance on regulatory approvals and to present a comprehensive view of glyphosate’s potential health risks.

March 19, 2024 – Bayer Seeks Alternative to Glyphosate

Bayer officials announced they are exploring a potential alternative to glyphosate, the key component in Roundup weed killer, which is associated with a heightened risk of non-Hodgkin’s lymphoma and has resulted in significant legal challenges for the company. This move to find a substitute for glyphosate is viewed by many as an indirect way of recalling Roundup, effectively withdrawing the controversial ingredient implicated by numerous plaintiffs in causing their cancer from the market.

Keeping Roundup on the market as it is now complicates Monsanto’s settlement process. Introducing a new version of Roundup, one without glyphosate, would be a great move toward mitigating these legal and public relations challenges. By developing and marketing a glyphosate-free alternative, Monsanto can demonstrate a commitment to safety and a willingness to address the concerns that have led to endless lawsuits and billions in settlements and verdicts. This shift could potentially reduce the company’s legal liabilities and facilitate a more straightforward path to settling existing lawsuits.

March 14, 2024 – Bayer Claims Bankruptcy Possible

Bayer planted an article in Bloomberg that appeared yesterday from anonymous sources that it is considering the Texas Two-Step bankruptcy. This strategy is named after a Texas law that allows corporations to divide their assets and liabilities, then push the liability-heavy unit into bankruptcy as a means to negotiate a comprehensive settlement.

It does not work in mass torts with solvent companies as 3M Co. and Johnson & Johnson learned just last year in the two biggest mass torts in the country. The article points out that experts say the chances of success with the Texas Two-Step are doubtful and it signals Bayer’s desperation.

So what is the thinking here and why leak it to Bloomberg? Settlement.  The one thing even a failed Texas Two-Step would do is temporarily slow things down. Now this is a threat that has some teeth.  Plaintiffs and plaintiffs’ lawyers sense that Roundup settlement is not that far away. Plaintiffs want their money for obvious reasons. They have suffered horribly and justice has already been long delayed for most victims.

Plaintiffs’ lawyers have a more nuanced reason to want a settlement sooner rather than later. In 2024, plaintiffs’ lawyers often finance the acquisition and handling of personal injury cases with mountains of debt.  These attorneys do not want delay and Bayer knows it.  If nothing else, this threat targets these lawyers to give them a little extra incentive to be flexible in settlement negotiations.

So, paradoxically, if you are looking for a tea leaf for a Monsanto Roundup settlement in 2024, I think we may have one here.

March 8, 2024 – California Plaintiff Quits in Middle of Trial

Geez.  I had higher hopes for the four cases that were in trial.  One mistrial, two defense verdicts, and now a plaintiff has quit mid-trial.

Why?  I have no idea. I never understood the facts of Meyer and do not know whether it was a good case.  There is no question Bayer will keep looking to try weak cases. So you will keep seeing defense verdicts.  But you also will see more billion dollar verdicts if this litigation drags on.

March 8, 2027 – Bayer CEO on Settlement

This is from Bayer’s CEO on the earnings call this week:

But it’s clear that a strategy of defense alone is not enough. We’re looking at the litigation topic from every angle, inside and outside the courtroom. That includes much more thorough engagement with other stakeholders in the realm of public policy. It includes considering every possible means to bring closure to these lawsuits for the company and for our customers.

Bayer is being cagey and its plans for two reasons.  One, it is a bad idea to telegraphic your intentions in how you will manage any piece of mass tort litigation. But I also don’t think it has a clear plan either.

March 7, 2024 – More on Kline Verdict in Philadelphia

Let’s take a closer look at the Kline case. I’ll admit I was surprised by this verdict.

Kline filed a lawsuit against Monsanto and Nouryon Chemicals LLC in March 2022, alleging that his regular use of the weed killer Roundup caused him to develop non-Hodgkin’s lymphoma. Kline claimed that he had been using Roundup regularly for six months out of the year for several years before his NHL diagnosis.

This case was not a particularly close call for the jury. They were out for only two hours before returning with a defense verdict.

The plaintiff will appeal because evidence about the Environmental Protection Agency’s safety evaluation of Roundup being vacated and the International Agency for Research on Cancer (IARC) findings that Roundup is a carcinogen were not allowed to be presented at trial.  So, the plaintiff will appeal evidentiary issues.  You do not see any statements about unfair and biased judges like you see from Monsanto, right?

This Monsanto victory lowers the average Roundup verdict in Pennsylvania to $607 million.

March 5, 2024 – Monsanto Gets Win in Philadelphia

Monsanto got a win today in Kline v. Monsanto; it’s its first win in Philadelphia.

March 4, 2024 – Monsanto Gets a Win (and a Tie)

The Roundup wrongful death trial in Delaware (Cloud v. Monsanto) ended in a hung jury on Friday. After deliberating for three days, the jury advised the judge that they were deadlocked, and a mistrial was declared. Another Roundup trial in Arkansas ended last week in a defense verdict in Cody v. Monsanto.

Again, Monsanto will win some of these cases.  Not every case of NHL was caused by Roundup. I’m not that familiar with Cody besides what I read in the Complaint (which did indicate the plaintiff used a great deal of the product).  But we will run some updated average verdict statistics later in the week, and we will have more verdicts soon.  My prediction is we get another huge verdict in March.

March 1, 2024 – Consolidation of Roundup Cases in NJ State Courts Sought

As the Roundup litigation heats up, Plaintiffs’ Roundup NHL lawyers are looking for paths to organize the litigation better.  This involves having an orderly process to administer these cases like we have, for example, in Philadelphia.

So attorneys have submitted a petition to the Administrative Director of Courts in New Jersey requesting that all Roundup-related lawsuits filed in the state, which allege a connection to non-Hodgkin’s lymphoma, be grouped into what is called in New Jersey Multi-County Litigation.

This is not a class action, each case would remain independent. Should the cases be consolidated under a single judge, this state-court mechanism would mirror the federal MDL approach, although hopefully at a faster pace than the California MDL. The presiding judge would oversee the discovery process on universally applicable issues and likely set up a “bellwether” trial system.

February 29, 2024 – Cloud Verdict Expected Today

We should get a verdict today and we will report it here.

February 28, 2024 – Cloud Verdict on Deck and a Reduced Verdict in Dennis

Two things to talk about.

Cloud

We should get a verdict in the Cloud case in Delaware.  The jury is out. This is a wrongful death case filed by the family of a South Carolina man.

Plaintiffs’ attorneys are asking the jury for $142 million in punitive damages.  The bar for punitive damages in Delaware is high – conduct that is willful or wanton, shows reckless indifference to the rights of others, or is otherwise in egregious violation of societal rights or standards.  But many juries have awarded billions of dollars in punitive damages in Roundup NHL lawsuits using a similar standard.

So certainly evidence of economic bullying, ghostwriting, covertly attacking scientific research it didn’t like, remorselessness… there are all things from which a reasonable jury in Cloud may conclude that Monsanto recklessly violated the public trust and should be punished.

Dennis

A San Diego, California judge has significantly reduced a jury award in Dennis, the case of a former land surveyor who attributed his cancer to Monsanto’s Roundup product, from $332 million to $28 million.

Judge Kevin Enright declined Monsanto’s request for a retrial of Michael Dennis’ lawsuit, but considered the punitive damages of $325 million to be excessive in relation to the $7 million in compensatory damages, and thus in violation of due process according to standards set by the U.S. Supreme Court.

Bayer is pretty excited about the win. That is what a win for Bayer is in 2024 – a $28 million verdict with more to come.

February 26, 2024 – Award in Caranci Increased

A Philadelphia judge increased a $175 million verdict against Bayer AG’s Monsanto to approximately $177.3 million by adding $2.3 million in delay damages to the compensation for Ernest Caranci.

Why?  In Pennsylvania, the rate of prejudgment interest in personal injury lawsuits like this is 6%. This rate is applied to the amount awarded from the time the action commenced until the judgment is rendered.

The judge also dismissed Monsanto’s request for a new trial, countering the company’s usual argument in these cases that the judge was biased and irrational (and that the plaintiff was too old to receive so much compensation). Here is the money quote that summarizes everything I’ve been saying:

“Aggressively blaming the court and plaintiff’s counsel for the outcome as opposed to the ineffectiveness of defendant’s trial tactics, strategic choice of trial witnesses, cross examinations or proffered defense evidence outcome is hardly a compelling basis for the court to overturn this jury’s decision.”

February 17, 2024 – Class Action Lawsuit

Everyone smells blood in the water with Roundup and it is drawing lawyers who do not have personal injury or wrongful death lawsuits.

The MDL judge in California signaled his inclination to either dismiss a proposed nationwide class action lawsuit regarding Roundup exposure or transfer it to a multidistrict litigation in California’s Central District. Judge Vince Chhabria, expressed concerns during a San Francisco hearing about the suit being filed in an inappropriate venue, given that the defendants, Monsanto and its parent company Bayer AG, have their principal places of business outside Northern California, and the plaintiffs lack a direct connection to the Northern District of California.

The lawsuit, initiated in September by five Californian plaintiffs, seeks to represent individuals nationwide who have been exposed to Roundup more than twice yearly, raising issues about the suitability of the Northern California venue and the representativeness and manageability of such a broad class action given the diversity of state laws.

These types of claims are important, but that does not mean I like them.  I would rather everyone focus on the Roundup wrongful death and personal injury claims because that matters a whole lot more than trying to get back 11 bucks to someone who bought Roundup and does not have NHL.

February 15, 2024 – Lots of Roundup NHL Trials

We used to have a long wait in between Roundup trials.  No longer.   A series of NHL Roundup lawsuits are gearing up for trial in Arkansas, California, and Pennsylvania. Two of these trials started today. We also have the Cloud trial is progress in Delaware. (See our February 5th update below.)

Today, in Conway County Circuit Court in Morrilton, Arkansas, a wrongful death Roundup Lawsuit begins.  In Cody v Monsanto, the plaintiff alleges his wife’s death from NHL was from Roundup exposure. This is the first Roundup pesticide trial in Arkansas.

In California, Sonoma County Superior Court is preparing for the 7th Roundup trial in California in Myers v. Monsanto.

Finally, we get another Philadelphia trial where plaintiffs are 3-0.  In Kline v. Monsanto, a retired U.S. Postal Service worker alleges that his aggressive cancer is linked to his use of a self-mixed Roundup variant. This trial starts today in the Philadelphia Court of Common Pleas.

This is a lot of pressure on Monsanto. I may be an optimist but I predict you will see a lot of Roundup settlements in the first half of 2024.  Because Monsanto cannot continue to bear this trial schedule and the likely verdicts we will see in most of these lawsuits.

The left-for-dead Roundup litigation is back and getting tons of attention in 2024.  This brings out the vultures.

We learned today that someone is calling potential victims in California, saying they are from our law firm, and telling them they are entitled to $40,000 in compensation.

If you get a call like this, it is a scam. (And if you have a viable case, it is likely worth a heck of a lot more than $40,000.)

February 7, 2024 – Usual Monsanto Tactics

Monsanto is challenging the $2.25 billion verdict claiming a series of mistakes by a Philadelphia judge, Susan Schulman, unfairly influenced the trial’s outcome.

In typical Monsanto fashion, the motion called the court’s rulings “inexplicable.”  It is hard to understand who the target audience is – other than themselves – with this kind of rhetoric.

February 6, 2024 – Cloud Trial in Delaware

Yesterday, we were talking about New Jersey.  Today, let’s talk about Delaware.

Opening statements were heard in Cloud v. Monsanto in Delaware Superior Court in a lawsuit involving a South Carolina groundskeeper whose family’s wrongful death lawsuit alleges that Monsanto’s Roundup was the cause of his non-Hodgkin’s lymphoma.

For two reasons, it is hard not to have high hopes for this case.  First, plaintiffs are on roll, and juries have awarded victims over $4 billion in the last few months.

Second, the decedent was a groundskeeper.  These are among the best cases because of the undeniable volume of exposure to the product. We do not have an exact answer to how much exposure to Roundup is dangerous, and that is an issue in some trials.  That will not be a debate in this case.

February 5, 2024 – Bet the Company Strategy

In our February 1st update, we talked about Bayer’s ‘bet the company” strategy on a favorable appellate court ruling.  That strategy took a punch to the face today.

The 11th Circuit ruled that a state failure-to-warn claim filed by a Roundup user, who alleges his cancer was caused by Monsanto Co.’s weedkiller, is not barred by federal law regulating pesticide labels. The court found that Georgia’s state-law duty to warn of foreseeable dangers, which manufacturers should reasonably know about, aligns with federal law and does not demand more from pesticide manufacturers than the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).

This is a significant ruling.  Bayer put a lot of eggs in the basket of this case.  In one of the goofiest moves in recent appellate history, it settled with the plaintiff and then paid him to make this appeal to make favorable law.

I sound like a broken record. But if you are a Bayer executive reading this, you have to consider the possibility that your lawyers have steered you in the wrong direction in this litigation.  It happens. You are not the first corporate executives to get burned listening to your attorneys, and you will not be the last.  But you must do what is hard now to save this company from ruins.  This means finding the cash to get these cases settled once and for all and doing it quickly.

February 4, 2024 – New Jersey Roundup Lawsuits

New Jersey might become a new hotbed jurisdiction for Roundup cancer lawsuits.  The state’s Administrative Office of the Courts announced plans to gather public opinions on a proposal to coordinate a group of Roundup trials in Atlantic County Superior Court.

The request for this coordination aims to bring together 10 Roundup cases filed since late December. But if there is consolidation, and we have seen this movie before in other mass torts, you can expect hundreds of cases to follow.

What is attractive about New Jersey?  Bayer’s U.S. headquarters is in New Jersey, which should keep lawsuits filed in New Jersey in state court.

February 2, 2024 – New Suits Filed in MDL

It is easy to forget the Roundup MDL with so many trials in state court.  But 26 new Monsanto lawsuits were filed in the MDL last month. 

In one new lawsuit filed yesterday in the MDL, the plaintiff, a resident of Sarasota, Florida, brings a wrongful death lawsuit as the representative of the estate of a deceased relative, also from Sarasota County, Florida. The plaintiff claims the decedent used Roundup regularly since approximately 1980, adhering to all safety and precautionary warnings provided during its use.

Despite these precautions, the man was diagnosed with Diffuse Large B-cell lymphoma.  It is alleged that the plaintiff’s condition was directly and proximately caused by exposure to Roundup products manufactured by the defendant. Tragically, the plaintiff passed away on March 24, 2021, due to complications from the lymphoma, prompting this lawsuit against Monsanto.

February 1, 2024 – What Is at Stake for Bayer

Reuters has a quote that I think is really on point:

January 30, 2023 – $6.7 Billion in Roundup Verdicts

This is the updated scorecard of Roundup verdicts:

The average payout for the last six Roundup lawsuits that went to trial, including a zero for the defense verdict,  is a stunning $617,387,142.86.

January 26, 2024 – McKivision Verdict

The verdict is back in McKivision: $2.25 billion. The jury awarded $250 million in compensatory damages and $2 billion in punitive damages.

This was an educated jury.  Half of the 12 jurors were college-educated, and two had master’s degrees.  Plaintiffs’ arguments are working in front of men, women, educated, uneducated, you name it.  Whoever did the focus groups for Bayer and told their lawyers to shoot for an educated jury should be fired.

Bayer should change the warning on Roundup today and do what it did last time – start settling cases with lawyers with the largest number of cases. I keep saying this verdict, and that verdict is a game changer, and we go back to business as usual.  But this may be the verdict that turns the tide.

 January 24, 2024 –  Monsanto Struggles with Witness

After a series of losses, Monsanto tried out a new toxicologist, David Saltmiras, in the McKivision trial yesterday.  Losing five trials in a row makes you want to try a new path.

It did not go well for Monsanto. Its lawyers tried – pushing the envelope like it pathologically does – to convert a fact witness into an expert witness, fusing opinions into his testimony.  This did not please the plaintiff’s attorneys or Judge Susan I. Schulman, who moved to shut such testimony down.

January 11, 2024 – Monsanto’s “Cynical Diversion”

One leitmotif in these comments is my complaint that Monsanto, for lack of a better phrase, is such a baby when it loses.

Judge James Crumlish III of the Philadelphia Court of Common Pleas seems to agree.  He sternly opposed Monsanto’s attempt to remove him from the case after a $175 million verdict as a transparent and manipulative tactic. He said the company’s goal is not to contest the trial’s evidence but to undermine the jury and the trial judge. He described Monsanto’s efforts as a delay tactic and a cynical diversion.

Again, this is not a one-off.  Monsanto has previously attempted to disqualify judges in other cases, alleging bias against their defense. These efforts include a failed attempt to disqualify a California judge and accusations of favoritism against another Philadelphia judge after a $3.5 million verdict. Monsanto is the litigation version of politics in 2024.  If you disagree with me, it must be because you are acting in bad faith.

Why does any of this really matter?  Who cares if a defendant is being a baby?  A rational defendant in Monsanto’s shoes right now would be doing everything it could to settle these lawsuits. But stuff like this makes you wonder if the company is rational about this litigation.  I say the company… but maybe it is their outside lawyers. I’m not sure who is driving this train. But the adults in the room need to step up.

January 9, 2024 – McKivision Gets Started

A new trial in Philadelphia, McKivision v. Monsanto, is underway.  Plaintiffs’ lawyers will advance the themes that have been working: Roundup causes non-Hodgkin’s lymphoma, and Monsanto hid studies that show the association to sell more product.

According to McKivison’s lawsuit, he initiated his use of Roundup in 2006, employing it multiple times annually for several consecutive years. His approximation suggests that he utilized Roundup on at least 30 occasions before the cancer manifested.

The plaintiffs are 2-0 in Philadelphia.  You never know what will happen in a jury trial. But the odds seem very strong that plaintiffs make it 3-0.

I’ve been saying Bayer needs to settle this case. It does. It needs breathing room to figure out how to fashion a global settlement or at least one that meaningfully reduces the number of Roundup lawsuits it faces.

January 7, 2024 – Other Roundup Health Concerns

A new study has revealed significant effects of glyphosate on the gut microbiome, even at doses approximating the U.S. Acceptable Daily Intake.  The research demonstrates that low levels of glyphosate can disrupt gut microbiota by reducing beneficial bacteria, such as Lactobacillus and Bifidobacterium, which play crucial roles in maintaining gut health.

The study highlights gut dysbiosis as a potential mechanism through which glyphosate could negatively affect human health, raising concerns about its safety at doses previously considered acceptable. These findings contribute to the growing body of evidence questioning the long-term safety of glyphosate, especially in relation to its impact on human gut health.

January 2, 2024 – Monsanto Gets a Win

Plaintiffs five trial streak was snapped on Friday when a San Benito County, California jury found no liability in Jones v. Monsanto.  The jury ruled in favor of Monsanto, dismissing allegations of negligence, design defect, strict liability, and negligent failure to warn.

We know plaintiffs will not win every case.  We have a fresh slate of trials in January, including an extensive trial in Philadelphia where plaintiffs are two-for-two.

This is the updated scorecard of Roundup verdicts:

2023 Roundup Litigation Updates

Roundup Update December 23, 2023

One theme in the comments is my frustration at how Monsanto blames the judge whenever it loses a case.  Of course, every appeal is premised on the trial judge’s error.  But Monsanto often goes beyond simple error and argues some nefarious motive.

In the last verdict in Philadelphia, Monsanto accused Judge Genece Brinkley of the Philadelphia Court of Common Pleas of exhibiting favoritism towards the plaintiff during the trial. Specifically, Monsanto claimed that Judge Brinkley made prejudicial statements and asked questions during witness testimonies that seemed to align with the plaintiff’s side, effectively taking on an advocacy role.

Really? What is the point exactly?  There is a zero percent. This argument flies on appeal.

Roundup Update December 19, 2023

Bayer is not just mishandling litigation in the Roundup NHL lawsuits. Bayer was ordered on Monday to pay $857 million to ex-students and parent helpers at a school near Seattle. The reason was – big surprise, right? — their exposure to the firm’s dangerous chemicals at the facility, which they claimed led to brain injuries and various health issues.

Bayer’s stock price is feeling the consequences.

Roundup Update December 13, 2023

For years, Dr. Cristian Tomasetti, a math doctor, not a medical doctor, served as Monsanto’s key expert in defending their Roundup weed killer against lawsuits alleging it caused cancer. His central claim: most non-Hodgkin lymphoma cases, the specific type of cancer in these lawsuits, are simply unfortunate accidents of biology caused by random mutations rather than environmental factors like Roundup. That is the Monsanto’s favorite argument.

As five in a row, plaintiffs’ verdicts totaling over $2 billion suggests that argument is wearing thin. Plaintiffs’  Monsanto weed killer lawyers are highlighting to juries concerns about the methodology and data underlying Dr. Tomasetti’s findings, pointing to 54 published articles that disagree with his assertion that 95% of NHL is just pulling the wrong genetic straw.

In the Roundup class action in California, Plaintiffs’ attorneys argue that Dr. Tomasetti’s “bad luck” theory improperly minimizes environmental factors in cancer development. They believed that allowing Tomasetti to continue to present this data that lacks a study scientific basis should be excluded from court proceedings.

In the federal court case, Judge Chhabria will decide whether to allow Tomasetti to testify in the next group of Roundup trials in the MDL.  We will see how it goes.  Ironically, plaintiffs may be better off letting Tomasetti testify and destroying him on cross-examination than excluding him from testifying.

Roundup Update December 12, 2023

The mess Bayer has made is starting to get more attention in the media.

Roundup Update December 6, 2023

Bayer loses. Again. Yesterday, another Philadelphia jury ordered Bayer to pay nearly $3.5 million to a woman who alleged that the company’s Roundup weedkiller caused her cancer. The verdict, reached after a three-week trial and two days of jury deliberation, comprised $462,500 in compensatory damages and $3 million in punitive damages.

This verdict represents Bayer’s fifth consecutive loss. There is another trial in Philadelphia next month. I predict that the verdict will be more than $3.5 million.

In 15 trials, juries awarded victims a few thousand dollars shy of $4.5 billion.  So, the average Roundup verdict is $300 million.  If you multiply $300 million by the estimated 40,000 remaining cases, you get $12 trillion. (This is a little misleading because of trials with multiple plaintiffs, but you get the idea.)

Bayer CEO Bill Anderson has a degree from MIT and has had great success as a CEO in his two previous pharmaceutical company stints, which is how he earned the Bayer job. He pledged to study the company before taking action. The time for action is now.  Because that train of success will come to a screeching halt if he does not find a way to settle the Roundup lawsuits.

Roundup Update November 20, 2023

In a verdict that truly redefines this litigation, a Missouri jury ordered Monsanto on Friday to pay over $1.5 billion in damages to three former users of its Roundup weedkiller, who claimed the product caused their non-Hodgkin’s lymphomas.

The state court in Jefferson City, Missouri, awarded the plaintiffs a combined $61.1 million in actual damages and $500 million each in punitive damages.

Valorie Gunther from New York, Jimmy Draeger from Missouri, and Daniel Anderson from California were the plaintiffs in the lawsuit. All three were diagnosed with non-Hodgkin’s lymphoma. The jury determined that Monsanto was responsible for their injuries due to not providing sufficient warnings about the dangers of Roundup.

These last four verdicts will almost certainly have an outsized impact on Roundup settlement amounts. Bayer keeps waiting to settle, hoping something good will happen. This is going from bad to worse to – I’ll say it again, existential threat – for Bayer.

We will get another verdict in Philadelphia in Martel v. Nouryon Chemicals, probably early next month. Bayer should settle that case today. But it won’t.

Roundup Update November 10, 2023

Bayer is not ready to settle. That message came out of a media call after Bayer’s third-quarter financial results were released. Bayer says they will keep defending Roundup litigation cases, particularly those involving glyphosate, its active ingredient, asserting to juries that the herbicide is safe when used as instructed.

I mean, what else is it going to say?   The company cannot say, “We are getting hammered again, we will make reasonable settlement offers, I hope the plaintiffs agree. But AG’s Chief Financial Officer, Wolfgang Nickl, said something else interesting:  “We have no appetite to write humongous checks and in a time where we have little free cash flow.”

When I was in college, I would get parking tickets at school. My plan for those parking tickets was to put them in my glovebox and try to forget about them. That is what Bayer is doing here. We do not have the money, so we will not pay it. But this is precisely what I did in college. These chickens will come home to roost. The problem is only going to get bigger.

Roundup Update November 9, 2023

Monsanto is seeking to overturn a $175 million verdict from a Pennsylvania state court trial, contending that the court unjustly influenced the jury to resolve a deadlock in a case regarding its alleged failure to warn about carcinogenic risks in Roundup. Monsanto’s brief accuses the court of several errors, including coercing the jury towards a consensus without informing the parties and allowing prejudicial evidence from the plaintiffs.

The company allegedly discovered post-verdict that the jury was initially deadlocked at 9-3, and the court had instructed them to either reach a majority or face extended deliberation. Very desperate argument. Judges always do this, and they have every right to do it.

Monsanto also criticized the court’s exclusion of evidence from regulators regarding the safety of glyphosate.

Bayer also may be declaring war on the entire mass tort process in Philadelphia. It has requested Judge James C. Crumlish III’s recusal from any rulings on the motion for a new trial due to these grievances. There is no real point to this – the judge is not going to recuse – other than to attack the judge and the process.

Roundup Update November 7, 2023

Bayer got a win today when the Ninth Circuit ruled that California’s mandate for products containing glyphosate to carry a warning label is unconstitutional, infringing upon agricultural producers’ First Amendment rights against compelled speech.

The court found that the warning made producers convey a message they fundamentally disagree with, concerning a matter that it thinks is not settled among the scientific community.

The requirement failed the “intermediate scrutiny” standard because it was not narrowly tailored to serve an important government interest, despite the International Agency for Research on Cancer classifying glyphosate as “probably carcinogenic” five years ago. As for whether it serves an important government interest… if California does not have an important government interest in keeping its citizens alive, it is hard to figure out where it does have a significant governmental interest.

Judge Mary M. Schroeder dissented, believing the lower court should review the sufficiency of the new warning and arguing that scientific consensus should not be a requirement for noncontroversial information in the context of compelled commercial speech. My guess is the Supreme Court will see it the same way.

Roundup Update November 6, 2023

Philadelphia is gearing up for its second trial concerning allegations that the herbicide Roundup causes cancer, scheduled to start today.

Martel v. Nouryon Chemicals will be the first time Pennsylvania-based chemical manufacturer, Nouryon Chemicals, is a defendant at trial. Plaintiffs allege that Nouryon supplied Monsanto with chemicals that increased Roundup’s carcinogenic potential. This is also the defendant that gets these claims in state court in Pennsylvania in the first place.

We will have many Roundup litigation updates in the future. After a holiday break, the next trial is set for January 8, and we will see more trials in Missouri and California state courts. Unless there is a big settlement, we are just getting started.

Roundup Update November 4, 2023

Just to put it in context, Bayer is worth $44 billion (which is much less than it paid for Monsanto). In five days, Bayer absorbed two verdicts against Monsanto totaling over $500 million. So those two cases, which make up .005% of the estimated pending Roundup claims against Monsanto, were over 1% of the total value of the entire company.

My point is Bayer can still settle these lawsuits at a number that does not decapitate the company. But we are no longer in an MDL where trial dates move slowly. The state court docket is producing more and more trials.   If Bayer does not act on settlement, things could spiral out of control pretty quickly. Bayer has to acknowledge that its playbook in this litigation is not working.

If you read these updates, I complimented many times Bayer’s strategy of letting the weakest cases go to trial, get defense verdicts, and quell the enthusiasm of plaintiffs lawyers. It worked. But it is just not a sustainable strategy. I figured the point was to leverage settle out as many cases as they could before the Philadelphia trials began.

My guess is Bayer began to believe the were winning because their lawyers found the secret sauce to win as opposed to crediting it strategy of trying cases with weak facts for plaintiffs.

Roundup Update November 2, 2023

The Legal Intelligencer correctly reports that plaintiffs’ Roundup attorneys are ramping up the pressure on Bayer to resolve numerous lawsuits or remove its Roundup pesticide from the market after three substantial verdicts amounting to over half a billion dollars were awarded against Monsanto.

Of course, the pressure of recent juries in Missouri, Pennsylvania, and California totaling over $500 million has changed the landscape. Plaintiffs’ lawyers want fair Roundup settlement offers and, at a minimum, a reasonable warning on the product.

Here is a quote from a Cornell professor:

“What’s surprising is they didn’t settle these cases. If I were Monsanto, I would settle the best cases with the best lawyers, and bring to trial the worst cases with the worst trials. I’m guessing they thought that was their strategy, too. But they made a mistake.”

But, actually, this is how Monsanto won nine in a row, doing exactly this. But Bayer did not want to overpay, and plaintiffs’ demands for settlement were just too high.

Bayer is said to be weighing bankruptcy. But I don’t think they really are. One option is the Texas Two-Step. The “Texas two-step” is a corporate maneuver that involves a divisional merger strategy often associated with liability restructuring for companies facing numerous lawsuits. They know the Texas Two-Step will not work and will just cost them millions more in legal fees from a company that is already bleeding legal fees.

Bayer could declare bankruptcy. But I do not think a single person within Bayer is really considering this as an option.

I laid out the plan a few days ago. Settle these cases. Put a warning on the product. And get back to ruling the agricultural world.

Roundup Update October 31, 2023

$332 million in Dennis. The jury awarded $7 million in compensatory damages and $325 million in punitive damages. Getting one huge verdict last week was great. But now three for three in just a few weeks totaling over $500 million is a complete game changer.

Yes, Bayer won nine trials in a row. We kept telling you it was smoke and mirrors – they are letting weak cases go to trial. These last three verdicts prove this hypothesis.

Like Caranci, there was nothing unusual about Mr. Dennis’s case. He used Roundup on his lawn and garden for 35 years and was diagnosed with non-Hodgkin’s lymphoma at age 51. These typical Roundup lawsuits are getting these incredible verdicts.

It is time to start talking about whether Roundup is an existential threat to Bayer. It would not be if Bayer just came to its senses and made reasonable settlement compensation to resolve these claims. But if this keeps spiraling – and there is a new trial next month – there is no telling where it leads.

Roundup Update October 30, 2023

Bloomberg has an article today about the mounting legal troubles Bayer has after a Philadelphia jury ordered the company to pay $25 million in actual damages and $150 million in punitive damages over claims that its weed killer, Roundup, caused 83-year-old Ernie Caranci’s cancer.

The punitive damages – and the amount of the punitive damages – really sends a message to Bayer, and there is a real possibility that the message will get sent again in this next trial in Pennsylvania that starts next week (and maybe in the San Diego case as well).

Bayer could have settled the first round of cases for less if it had avoided those first three trials. It also could have settled a good portion of the 40,000 remaining cases by settling before this Philadelphia trial, which had plaintiff’s verdict written all over it. I was virtually screaming it in the updates even after nine consecutive losses. But it wants to keep rolling the dice, and you see the consequences of that.

Bayer’s CEO, Bill Anderson, is said to re-evaluating the company’s strategies and aims to restore investor confidence. I think what would help investor confidence is making reasonable Roundup settlement offers to victims and putting this litigation behind them even if it costs a few billion more than it originally allocated to these claims.

Last week, I read the book “The Travels of a T-Shirt in the Global Economy” by Pietra Rivoli. The book offers a detailed exploration of the global trade and economics surrounding the lifecycle of a t-shirt and explains in stunning detail how Monsanto developed and commercialized genetically engineered cotton seeds, known as Bt cotton. These seeds are designed to resist certain pests, which can reduce the need for pesticides and potentially increase yield. Monsanto has played an unbelievably dominant role in the cotton seed market and other agricultural products, and this dominance allowed it to make money hand over fist, which is why it was so attractive to Bayer in the first place.

What is my point? For all its flaws with Roundup, Monsanto is doing great things. Bayer should focus on continuing to develop that business and stop wasting so much energy and focus on trying to beat down victims in the Roundup NHL lawsuits. Just offer reasonable settlement compensation to victims and get back to doing what you do.

Roundup Update October 28, 2023

If you enjoyed Friday’s $175 million verdict, keep in mind there will be another trial on November 7 in the Philadephia Common Pleas Court between now and next year. We are also waiting on a verdict in San Diego.

Bayer has another $4-$5 billion left in their reserves to settle these cases. At $4 billion, that is about $100,000 a case. That will not be enough to get these cases settled.

Update: $175 million verdict in Caranci!!!! More details to follow!

Roundup Update October 27, 2023

Closing statements ended yesterday, and a Philadelphia jury will deliberate today in Ernest Caranci’s lawsuit that claims that Monsanto’s Roundup weedkiller led to his non-Hodgkin’s lymphoma diagnosis. Most likely, we will hear from the jury today in this highly anticipated verdict.  

Roundup Update October 25, 2023

It is good to see reports that Bayer made no offer in the Roundup lawsuit that resulted in a $1.25 million verdict on Friday. Bayer is letting go to trial only cases it is extremely confident it can win. So it is encouraging to see plaintiffs win a case it seems Bayer thought was a slam dunk.

Getting a win next month in Philadelphia or San Diego would be huge for the 40,000 plaintiffs who have lawsuits pending.

Roundup Update October 23, 2023

In these updates, we have been talking about a new strategy employed in the three Roundup lawsuits in trial. Plaintiffs’ Roundup lawyers are not focusing on glyphosate but instead making the easier and more obvious connection: Roundup causes cancer.

This strategy appears to be bearing fruit. A St. Louis jury awarded $1.25 million to a plaintiff who claimed Monsanto’s Roundup caused his non-Hodgkin lymphoma, marking an end to Monsanto’s series of victories in Roundup trials. The jury determined that Monsanto did not adequately warn about the risks of Roundup and its active ingredient, glyphosate.

This is a big win and gives plaintiffs fresh momentum.   The victory breaks a streak of nine defense wins across several states. Hopefully, we get two more big wins in San Diego and Philadelphia and put pressure back on Bayer to make reasonable Roundup settlement offers to resolve these cases. The company has already set aside billions to settle these cases. Now, these just need to set aside some more billions to put this litigation to bed.

Roundup Update October 12, 2023

Yesterday we slipped in talk of a Roundup trial in San Diego we have not previously mentioned. A California state court jury in San Diego heard opening statements yet another Monsanto’s Roundup trial. In Dennis v. Monsanto, the plaintiff alleges that exposure to Roundup led to his non-Hodgkin lymphoma at 51. This trial, alongside two more ongoing trials in Missouri and Pennsylvania, is being tried from a more 10,000 feet view than previous trials. Lawyers in all three cases focus less on glyphosate and more on a more fundamental and easier-to-prove premise: Roundup causes cancer.

Roundup Update October 11, 2023

A new Roundup cancer trial is now underway in Pennsylvania state court in Philadelphia. Monsanto (Bayer) has been winning almost all of the Roundup cases that have gone to trial over the last two years, including a recent victory in St. Louis in a trial that ended last month. Many are predicting a much different outcome in this trial, however. Philadelphia is a good jurisdiction for plaintiffs.

In opening statements, the plaintiffs’ Roundup attorney argued that the alleged cancer-causing effects of Roundup aren’t solely due to glyphosate. We saw this in St. Louis and San Diego in other trials this week, which clearly marks a trial strategy change. Another component, surfactant, was labeled as “a problem chemical,” with claims that several harmful substances in Roundup were not disclosed on its packaging.

So this emphasis on other ingredients in the Monasanto weedkiller reflects a change in approach, as earlier strategies focused solely on the effects of glyphosate. It encourages juries to get out of the weeds and look at what really matters: does this product cause cancer?   Because that is the question that really matters. There is reason to be optimistic about this case. Stay tuned.

Roundup Update September 28, 2023

The McCostlin case ended up being dismissed at the close of the plaintiffs’ case today. This is Monsanto’s 9th win in a row. The trial judge did not believe that the plaintiff’s expert, Dr. Barry Boyd, pushed them over the finish line to prove specific causation, i.e., Roundup caused this man to be diagnosed with NHL.

What I can say now that I couldn’t say before is that the conventional wisdom was this was not a strong case. No one was excited about it. I’ve repeatedly said that Monsanto is only letting weak cases go to trial. It is like Alabama football only playing middle school teams and bragging about its great record. Sure, this annoying strategy is working and giving Monsanto momentum. But let’s call it what it is.

This changes next month in Philadelphia, where I predict a large verdict… or a big confidential settlement.

Roundup Update September 22, 2023

Donna Farmer testified yesterday in McCostlin v. Monsanto. She has been in the middle of all this and has been the face of Monsanto. She is likable when she testifies (there is a YouTube video out there you can watch).

But facts are facts. She had to admit that studies indicating the weedkiller’s impact on chromosomes were primarily conducted by independent researchers, while research asserting no chromosomal harm was predominantly funded by Monsanto. When this litigation had just started, I wrote a since-deleted blog post saying I did not think Roundup caused cancer. At the time, I did not know that Monsanto funded all the medical literature I was relying on.

Roundup Update September 19, 2023

Yesterday,  Richard DeGrandchamp, a toxicologist from the University of Colorado, testified at the latest Roundup trial in St. Louis about studies that have come out since 2015 linking Roundup to NHL.   More recent studies have shown that it can cause other harmful effects on our body’s DNA and cells, he said. However, during questioning, DeGrandchamp admitted that he’s made most of his money in the past 30 years by being a paid expert in court cases, earning about $2 million lately. While that might raise some eyebrows, it’s a regrettably common practice for experts on both sides in mass torts in 2023. Let’s hope the jury focuses on the solid science he’s sharing.

McCostlin v. Monsanto is available to watch on the Courtroom View Network.

Roundup Update September 13, 2023

The opening statement began yesterday in another Missouri courtroom today. In McCostlin v. Monsanto, the plaintiff’s lawyer argued that Mr. McCostlin’s non-Hodgkin lymphoma resulted from using Roundup for more than 30 years in Lenexa, Kansas. Bayer’s lawyer pushed their “all NHL is from random cellular errors” theory, which seems pretty ridiculous.

Roundup Update July 23, 2023

Monsanto is now seeking to exclude expert opinion testimony from Dr. Ron Schiff, a prominent expert witness for the plaintiffs. Monsanto claims that Dr. Schiff’s opinions about the link between Roundup and cancer rely on a flawed methodology and should, therefore, be viewed as unreliable.

Roundup Update May 24, 2023

Bayer won the Gordon trial last night, marking its 7th victory in a row.

Not good. In the second to last paragraph of the May 1st update below, we explain why Bayer let this case go to trial. It had fundamental weaknesses from the plaintiffs’ perspective on jurisdiction and the facts of the case. But, at the end of the day, a loss is a loss.

Roundup Update May 1, 2023

Where are we on expected settlement amounts in the Roundup NHL lawsuits right now? There are approximately ten zillion lawyer pages on Roundup, and no one talks about the one issue victims care about.

The expected settlement amounts for the remaining inventory of Roundup weedkiller lawsuits are dropping. Let’s go ahead and get that out in the open. Why? Bayer is winning, and some lawyers are losing their unbridled confidence in cases, especially those involving the non-commercial use of Roundup. One canary in the coal mine: lawyers are not marketing for Roundup as they were just months ago.

Much of this is the fruit of good strategy from Bayer’s lawyers. They are trying cases they can win and settling the ones they fear. And they have been making the right calls, which has turned the tide in terms of how much money plaintiffs’ lawyers think they are worth. If you ask different attorneys in the litigation what the expected settlement payouts are now, you will get a wide range of answers. But the common thread is that those settlement payout estimates are less than they were last year at the same time.

That can all change in a New York minute. What plaintiffs need is a win at trial. Another new Roundup cancer trial began on April 26 in St. Louis County, Missouri. This case involves Sharlean Gordon’s claims that she was regularly exposed to Roundup when her stepfather used it around the house during her childhood. Gordon asserts that this exposure resulted in her being diagnosed with non-Hodgkin’s lymphoma at age 39 (making Gordon one of the youngest Roundup plaintiffs to go to trial). During opening statements, plaintiffs pushed a Monsanto memo from 2009 written by Donna Farmer, the chief toxicologist at Monsanto’s product safety center. The document bluntly stated, “You cannot say that Roundup does not cause cancer. We have not done the carcinogenicity studies with Roundup.”

Why is Bayer letting this one go to trial? Montsanto’s lawyers like the non-commercial cases anyway, and this one has particular appeal for them because the exposure was so long ago. It is also helpful to Bayer that the plaintiff is obese (a risk factor) and has been cancer-free for ten years. So they are willing to roll the dice in St. Louis County, where juries are generally more conservative than those in the nearby City of St. Louis, where several Roundup lawsuits are waiting to be heard. Bayer continues to pick and choose its spots.

We need to win this one. Or the next one. Three more Roundup trials are scheduled for June in Florida, San Diego, and again in Missouri.

Roundup Update March 17, 2023

Monsanto is asking the Eleventh Circuit to affirm the dismissal of a lawsuit claiming the company failed to warn about Roundup’s health risks. John Carson Sr. alleges he developed soft-tissue cancer from years of using the glyphosate-based weedkiller on his lawn. This is the goofy case where Bayer paid Carson to appeal his case, trying to split the circuits so the Supreme Court would take the case. The Supreme Court has already refused to hear Bayer’s appeal.

Monsanto argues that Carson’s claims are preempted by federal pesticide labeling law, which disallows any state-law labeling or packaging requirements that differ from those required under federal law. A district court initially threw out Carson’s suit but was reinstated in July 2022 by a three-judge appeals court panel. The full Eleventh Circuit agreed to review Monsanto’s appeal in December 2022.

Roundup Update February 27, 2023

Professor David Carpenter, an expert plaintiffs’ witness in several Roundup lawsuits, has been reinstated at the State University of New York at Albany after Monsanto lawyers attempted to discredit him. Lawyers for Monsanto contacted the University after Carpenter served as an expert in Roundup cases and prompted the University to put the professor on leave pending an investigation. Monsanto’s defense team attempted to use the investigation to their advantage in several ongoing Roundup cases. Last week, however, the University reinstated Carpenter and cleared him of wrongdoing.

There is a deeper backstory that will eventually come out of this.

Roundup Update February 3, 2023

A new study published in the Journal of the National Cancer Institute presented further evidence that chronic exposure to glyphosate (the chemical in Roundup) increases cancer risk. The study included 268 farmers with occupational exposure to glyphosate and compared their health histories to non-farmers without exposure. It found that specific oxidative stress biomarkers (known to increase cancer risk) were significantly higher in the group with glyphosate exposure.

2022 Roundup Litigation Updates

Roundup Update December 12, 2022

Last month, the latest Roundup cancer trial was supposed to get underway in California state court. But that trial never happened. Bayer settled the lawsuit at the last minute because that is what it does when the plaintiff has a strong case.

The case was Langford v. Monsanto Co. et al. (CGC-21-592238). It was set for trial in San Francisco last month. However, just three days before the trial was supposed to begin, the clerk removed it from the calendar with a note stating, “Case settled October 7, 2002.”

The settlement terms are confidential. So we cannot know how much Bayer paid to the plaintiff. But it is fair to say a settlement premium is paid for cases ripe for trial.

Roundup Update November 11, 2022

Another trial in St. Louis involving claims that exposure to Roundup caused cancer has resulted in a disappointing defense verdict. The trial in the case, Moore v. Monsanto, et al., lasted nearly one month, and the jury found that the plaintiff had failed to prove his case. Ten more Roundup cases are set for trial in the months ahead. Bayer offers a Roundup settlement in some of these cases. They will let the weak ones go to trial.

Roundup Update November 10, 2022

The next Roundup trial started in California state court this week.   The plaintiff in this Monsanto lawsuit regularly sprayed Roundup on his Northern California property for over 30 years. He continued to use Roundup after his NHL diagnosis in 2007 because he did not know of the risk of NHL associated with Roundup. This trial was expedited because Mr. Langford is in poor health.

The last Roundup trial in St. Louis resulted in a significant victory for Bayer, which won defense verdicts against all three plaintiffs. But California juries have awarded billions in the three Roundup verdicts.

Roundup Update September 2, 2022

The Roundup trial in St. Louis involving three separate plaintiffs and lasting nearly a month concluded yesterday. Bayer won.

The first handful of Roundup bellwether trials in 2018 resulted in gigantic verdicts for the plaintiffs. The verdicts were so significant that Bayer was forced to stop any additional trials and settle most of the pending Roundup cases.

More recently, however, Bayer has achieved defense victories in 5 state court Roundup trials in a row. Unlike the earlier bellwether cases, the recent trials involved cases that Bayer essentially hand-picked because they featured weaker claims. Four of the five most recent wins were in cases where Bayer was a heavy favorite to win because the facts were not strong for the victims bringing the claims. What happened to the strong cases? Bayer settles those.

Roundup Update August 26, 2022

An Arkansas state judge in an upcoming trial for a Roundup lawsuit ordered Bayer AG CEO Werner Baumann to be deposed about lymphoma and leukemia risk associated with Roundup. This is the first time Baumann has been ordered to testify in the Roundup cancer lawsuits.

Roundup Update August 1, 2022

Jury selection begins today in a new Roundup cancer trial in St. Louis, and the entire proceeding will be webcast live by Courtroom View Network. The case (Alesi, et al. v. Monsanto, et al.) involves three plaintiffs in their 60 and 70s who used Roundup regularly for years and were subsequently diagnosed with lymphoma.

This will be the first Roundup case to go to trial in Saint Louis County Circuit Court, an urban venue that is not kind to corporate defendants. Earlier this year, Bayer settled a large group of cases to avoid going to trial in St. Louis County.

With several additional Roundup trials in St. Louis set for next year, the outcome of this trial could have a significant ripple effect. Bayer still has over $6 billion earmarked for the settlement of current and future Roundup claims.

Roundup News Update July 14, 2022

The 11th Circuit ruled yesterday that claims that Bayer failed to adequately warn of the risk of cancer associated with Roundup are not subject to preemption under the Federal Insecticide, Fungicide, and Rodenticide Act. A federal judge in Georgia had dismissed a claim a plaintiff’s claim that Roundup caused his malignant fibrosis histiocytoma after using Roundup for 30 years.

The goofy – there is no other word – thing about this case is that Bayer already settled with this plaintiff and, as a part of the settlement, required the plaintiffs to appeal the duty to warn claim against Bayer. Why? Bayer hoped to create a split in the circuit courts to compel the Supreme Court to hear the case.   All of this legal scheming… and Bayer has nothing to show for it.

Roundup News Update June 30, 2022

Bayer loses again. The U.S. Supreme Court declined to hear a second Roundup verdict, this time the $87 million verdict for Alberta and Alva Pilliod.  Bayer had a slightly different – albeit ridiculous – additional argument that the punitive damages award violated the U.S. Constitution.

The conventional wisdom is that Bayer must pay another $5 billion or more to settle the remaining 30,000 Roundup lawsuits. That would be an average Roundup settlement of $167,000. This will not be enough money to settle these Monsanto lawsuits.

But not all of those 30,000 claims are viable lawsuits. (Some Roundup lawyers are gathering cases with dubious merit.)  But the Roundup settlement numbers look much better at 20,000 or 25,000 claims and Bayer putting up a few billion in addition to the $5 billion to increase settlement amounts to resolve these cases.

Roundup News Update June 22, 2022

Well, that nightmare is over. The Supreme Court rejected Bayer’s appeal.

Roundup News Update: June 18, 2022

Bayer won Johnson v. Monsanto in Oregon yesterday. This marks Bayer’s fourth consecutive victory in a Roundup trial.

It is easy to place too much significance on these recent defeats. Bayer is counting on that psychology. But as we get away from the MDL class action lawsuit and move towards more trials across the country in state courts, this allows Bayer to pick and choose the Roundup lawsuits it wants to try and the cases it wants to settle.

Roundup News Update: June 10, 2022

After seven hours of deliberation, the jury found for Bayer in the Shelton case in Kansas City. A loss – any loss – in a Roundup weed killer lawsuit hurts. But you have to keep in mind that Bayer settled the last case coming up for trial in Kansas City because it did not like the facts. Bayer liked this case better and took it to trial. There will be more trials and more victories for plaintiffs.

The frustrating thing about this loss is that a big verdict in Shelton would have destroyed Bayer’s morale to defend these cases. Now, they likely are emboldened until the next significant verdict.

In other Roundup lawsuit news, Pennsylvania state court Judge Lysette Shirdon-Harris has ordered a mini Roundup class action lawsuit. Her order consolidates over 100 Roundup lawsuits into a class action consolidated for discovery.

How are these Roundup lawsuits in state court? These lawsuits also name as a defendant the chemical maker Nouryon, which produces a key toxic element of Roundup. The plaintiffs allege that Nurion, headquartered in Radnor, Pennsylvania, produced a toxic ingredient in Roundup. (February 2024 Update: This proved prophetic with $2.5 billion in verdicts in the first three trials.)