New Brunswick’s largest forestry company and its wealthy owners have urged members of the provincial legislature to not give in to what they call “misinformation” about the herbicide glyphosate.
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Monsanto owner Bayer AG has lost another appeals court decision in the sweeping U.S. Roundup litigation, continuing to struggle to find a way out from under the crush of tens of thousands of claims alleging that Monsanto's glyphosate-based herbicides cause cancer.
In a decision handed down on Monday, the 1st Appellate District in the Court of Appeal for California rejected Monsanto's bid to overturn the trial loss in a case brought by husband-and-wife plaintiffs, Alva and Alberta Pilliod.
"We find that substantial evidence supports the jury's verdicts," the court stated. "Monsanto's conduct evidenced reckless disregard of the health and safety of the multitude of unsuspecting consumers it kept in the dark. This was not an isolated incident; Monsanto's conduct involved repeated actions over a period of many years motivated by the desire for sales and profit."
The court specifically rejected the argument that federal law preempts such claims, an argument Bayer has told investors offers a potential path out of the litigation. Bayer has said it hopes it can get the U.S. Supreme Court to agree with its preemption argument.
In May 2019 a jury awarded the Pilliods more than $2 billion in punitive and compensatory damages after lawyers for the couple argued they both developed non-Hodgkin lymphoma caused by their many years of using Roundup products. (The trial judge lowered the combined award to $87 million.)
In appealing the loss, Monsanto argued not only that the Pilliod claims were preempted by federal law, but also that the jury's causation findings were flawed, the trial court should not have admitted certain evidence, and that "the verdict is the product of attorney misconduct." Monsanto also wanted the damage awards further slashed.
In the appeals court decision, the court left the award unchanged and said that Monsanto had not shown that federal law did preempt such claims as those made by the Pilliods. The court also said substantial evidence showed that Monsanto acted with a "willful and conscious disregard for the safety of others," supporting the awarding of punitive damages. The evidence showed that Monsanto "failed to conduct adequate studies on glyphosate and Roundup, thus impeding discouraging, or distorting scientific inquiry concerning glyphosate and Roundup," the court said.
The court also chastised Monsanto for not accurately presenting "all of the record evidence" in making its appeal: "Rather than fairly stating all the relevant evidence, Monsanto has made a lopsided presentation that relies primarily on the evidence in its favor. This type of presentation may work for a jury, but it will not work for the Court of Appeal."
The court added: "The trial described in Monsanto's opening brief bears little resemblance to the trial reflected in the record."
"Summed up, the evidence shows Monsanto's intransigent unwillingness to inform the public about the carcinogenic dangers of a product it made abundantly available at hardware stores and garden shops across the country," the court said.
Bayer, which bought Monsanto in 2018, has settled several other cases that were scheduled to go to trial over the last two years. And in 2020, the company said it would pay roughly $11 billion to settle about 100,0000 existing Roundup cancer claims. Late last month, Bayer said it would set aside another $4.5 billion toward Roundup litigation liability.
Bayer also announced it would stop selling Roundup, and other herbicides made with the active ingredient glyphosate, to U.S. consumers by 2023.
A jury of seven men and five women on Monday were hearing the fourth Roundup case to go to trial- Donnetta Stephens v. Monsanto in the Superior Court of San Bernardino County in California. Retired U.S. government scientist Christopher Portier, who has been an expert witness for the plaintiffs in each of the prior Roundup trials, testified at length on Monday, reiterating previous testimony that there is clear scientific evidence showing glyphosate and glyphosate-based formulations such as Roundup can cause cancer.
Her new book is The Monsanto Papers: Deadly Secrets, Corporate Corruption, and One Man's Search for Justice, published by Island Press.
Women exposed to the herbicide glyphosate were more likely to experience shorter pregnancies, according to a study published last week in the journal Environmental Research.
Glyphosate is the active ingredient in the widely-used herbicide Roundup. Most research on the health effects of glyphosate has focused on workplace exposures — people who work in agriculture and as groundskeepers, for example — and on cancer outcomes. The new study joins a small but growing body of research in the United States exploring the health risks of glyphosate exposure during pregnancy.
Researchers tested urine samples from a racially and geographically diverse cohort of 163 pregnant women in California, Washington, Minnesota, and New York. They detected glyphosate in more than 94 percent of the samples and found an association between glyphosate exposure and shorter pregnancies.
This latest study follows two others on glyphosate and pregnancy length, including a 2018 study of 71 pregnant women in Indiana which found that more than 90 percent had glyphosate in their urine. Those with higher glyphosate levels were more likely to have shorter pregnancies, which can increase the risk of infant mortality and long-term health challenges like breathing difficulties and intellectual delays.
First author Corina Lesseur, an assistant professor in the Department of Environmental Medicine and Public Health at Mount Sinai's Icahn School of Medicine, cautioned about the limitations of the new, relatively small study that focused on a single time point and did not identify the specific sources of the women's glyphosate exposure. Further research, she said, will be necessary to confirm the results in larger populations and to ascertain additional exposure effects on pregnancy and infant health.
But the results underscore the importance of understanding glyphosate's health impacts beyond cancer, said corresponding author Jia Chen, also a professor at Mt. Sinai. She added that the study raises questions about potential effects of even low-dose exposures to glyphosate among the general population, since the glyphosate levels in the women's bodies were well below current U.S. regulatory thresholds.
"Glyphosate is unavoidable, it's even in rainwater," Chen said. "I would want to know if the regulatory levels are really safe. They may not cause DNA mutations, for example, but they may have other effects."
Glyphosate-based herbicides are the most commonly used in the world. Residue has been widely detected in food as well as in soil, dust, and drinking water. Multiple studies have found widespread exposure to glyphosate in the general population, with exposure rates increasing dramatically in recent years. Glyphosate has been linked to an array of health problems, including birth defects, DNA damage, endocrine disruption, reproductive problems, and cancer.
Tens of thousands of people have filed U.S. lawsuits alleging health problems caused by Monsanto's glyphosate-based weedkiller Roundup. The agrochemical company was acquired by Bayer AG in 2018. Last week, Bayer announced it would remove glyphosate from all lawn and garden products sold in the United States by 2023 to manage future litigation risk.
Bayer said no changes were planned for its professional and agricultural market products, however, which constitute the largest uses.
Despite Bayer AG's efforts to put an end to costly litigation inherited in its acquisition of Monsanto, opening statements in yet another trial are set for Thursday as a woman suffering from non-Hodgkin lymphoma claims Monsanto's Roundup herbicide caused her cancer.
A jury of seven men and five women have been seated in the case of Donnetta Stephens v. Monsanto in the Superior Court of San Bernardino County in California.
The trial comes a week after Bayer announced it would stop selling Roundup, and other herbicides made with the active ingredient glyphosate, to U.S. consumers by 2023. Monsanto was purchased by Bayer AG in 2018, and Bayer insists, just as Monsanto has for decades, that there is no valid evidence of a cancer connection between its weed killing products and cancer.
Bayer said the move to stop selling the herbicides to consumers was "to manage litigation risk and not because of any safety concerns." The company said it will continue to sell its glyphosate-based herbicides for commercial use and for use by farmers.
Bayer also said last week it was setting aside $4.5 billion – on top of roughly $11 billion already earmarked for Roundup litigation settlements – to cover "potential long-term exposure" to liability associated with claims from cancer victims such as Stephens.
Bayer further said with respect to ongoing litigation, it "will be very selective in its settlement approach in the coming months."
Ahead of the opening statements, Judge Gilbert Ochoa ruled – in agreement with Monsanto – that federal law regarding Environmental Protection Agency (EPA) oversight of pesticide product labeling preempts "failure to warn" claims under state law, meaning Stephens' lawyers would not be able to pursue such claims.
The plaintiffs still hope to argue, however, that separate from the labeling issues, Monsanto could have, and should have, warned consumers about the potential cancer risk in other ways, according to Stephens' lawyer Fletcher Trammell. He and Stephens' other lawyers will seek to prove that Monsanto made an unsafe herbicide product and knowingly pushed it into the marketplace despite scientific research showing glyphosate-based herbicides could cause cancer.
Lawyers for Stephens say that she was a regular user of Roundup herbicide for more than 30 years and it was that extended exposure to the glyphosate-based products made popular by Monsanto that caused her non-Hodgkin lymphoma.
Stephens was diagnosed in 2017 and has suffered from numerous health complications amid multiple rounds of chemotherapy since then. She is one of tens of thousands of plaintiffs who filed U.S. lawsuits against Monsanto after the World Health Organization's cancer experts classified glyphosate – the active ingredient in Monsanto's herbicides – as a probable human carcinogen with an association to non-Hodgkin lymphoma.
The list of evidence to be presented at trial runs more than 250 pages and includes scientific studies as well as Monsanto emails and other internal corporate documents. The federal judge who has been overseeing nationwide Roundup litigation stated in a recent order that there is "a good deal of damning evidence against Monsanto—evidence which suggested that Monsanto never seemed to care whether its product harms people."
Close to 70 people are listed as witnesses to testify at trial, either live or through deposition testimony, including many former Monsanto scientists and executives.
The first witness set to take the stand is retired U.S. government scientist Christopher Portier, who has been an expert witness for the plaintiffs in each of the prior Roundup trials. Portier has previously testified that there is clear scientific evidence showing glyphosate and glyphosate-based formulations such as Roundup can cause cancer in people. He has also testified in the past that U.S. and European regulators have not properly assessed the science and have ignored research showing cancer concerns with Monsanto's herbicides.
Before retiring, Portier led the National Center for Environmental Health/Agency for Toxic Substances and Disease Registry at the Centers for Disease Control and Prevention (CDC), part of the U.S. Department of Health and Human Services. Prior to that role, Portier spent 32 years with the National Institute of Environmental Health Sciences, where he served as associate director, and director of the Environmental Toxicology Program, which has since merged into the institute's National Toxicology Program. Portier was also an "invited specialist" to the International Agency for Research on Cancer unit of the World Health Organization when the group made its probable carcinogen classification of glyphosate in 2015.
Monsanto has lost three out of three previous trials, with a jury in the last trial – held in 2019 – ordering a staggering $2 billion in damages due to what the jury saw as egregious conduct by Monsanto in failing to warn users of evidence – including numerous scientific studies – showing a connection between its products and cancer. (The award was later shaved to $87 million.)
In trying to free itself from the weight of Monsanto-related woes, Bayer said last week that in addition to replacing its glyphosate-based products in the U.S. residential market with new formulations using alternative ingredients, it is exploring changes to Roundup labeling.
"It is important for the company, our owners, and our customers that we move on and put the uncertainty and ambiguity related to the glyphosate litigation behind us," Bayer CEO Werner Baumann said during a recent investor call.
The company also said it will file a petition this month seeking U.S. Supreme Court review of one of its trial losses – the case of Hardeman v. Monsanto. Bayer said if the Supreme Court grants review, the company "will not entertain any further settlement discussions" while the court reviews the appeal.
In the event of a "negative Supreme Court outcome," Bayer said it would set up a claims' administration program that will offer "pre-determined compensation values" to "eligible individuals" who used Roundup and developed non-Hodgkin lymphoma over the next 15 years.
Her new book is The Monsanto Papers: Deadly Secrets, Corporate Corruption, and One Man's Search for Justice, published by Island Press.
Canadians can now comment on the federal government's proposal to increase the amount of glyphosate herbicide residue allowed on certain grains and legumes until Sept. 3.
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