Judge kills Bayer’s plan to limit future Roundup legal liability, issues harsh criticism
Saying parts of the plan were "clearly unreasonable" and unfair to cancer sufferers who would be part of the class settlement, U.S. Judge Vince Chhabria castigated Bayer and the small group of lawyers who put the plan together in conjunction with Bayer.
He pointed out that the company has been "losing trials left and right" in claims brought by people suffering from non-Hodgkin lymphoma (NHL) who alleged exposure to Monsanto's Roundup and other glyphosate-based herbicides were the cause.
Bayer has owned Monsanto since 2018 and has been struggling to defend the cancer claims ever since. Cancer victims have won three trials held to date and tens of thousands of other plaintiffs have filed lawsuits alleging exposure to Monsanto's herbicides caused them to develop NHL while Monsanto spent decades hiding the risks.
Bayer did not respond to a request for comment about the ruling.
Glyphosate trials
Elizabeth Cabraser, one of the lawyers who structured the settlement plan, said the proponents were "disappointed" by the ruling and "continue to believe that a multi-billion-dollar class settlement that includes free legal services and substantial compensation to claimants, NHL diagnostic assistance, research into NHL treatment, and Roundup label reform to inform users and the public on all the science regarding a Roundup/NHL link, would provide tremendous financial, health and safety benefits for class members."
Judge Chhabria said in his decision that the company's desire to set up a "science panel" to determine whether or not the herbicides actually cause cancer rather than leave that question to future juries is because of the trial losses the company has so far suffered.
The "reason Monsanto wants a science panel so badly is that the company has lost the 'battle of the experts' in three trials, the judge wrote in his order. "At present, the playing field on the issue of expert testimony related to causation is slanted heavily in favor of plaintiffs."
Roundup exposure
The ruling comes after a lengthy hearing last week held to discuss widespread opposition by personal injury attorneys across the United States to the settlement proposal. The proposed plan called for Bayer to put up roughly $2 billion for a series of actions that would help the company avoid future Roundup cancer trials.
The class action settlement would apply to people exposed to Roundup products as of Feb. 3, 2021 who have not yet sued Monsanto or retained a lawyer to do so. The settlement plan would set up a framework for addressing new claims brought by those exposed individuals who develop NHL they attribute to their Roundup exposure. It would apply to people who already have NHL but who have not yet sued the company and to people who develop NHL in the future.
The plan was structured by Bayer in coordination with a small team of plaintiffs' lawyers who stood to be paid millions of dollars for their participation.
'Speedy compensation' for glyphosate victims
Proponents of the proposed class action plan told the judge it "will save lives," and provide "speedy compensation" to people who get NHL they blame on Roundup exposure.
But opponents said the proposal actually did little for cancer patients while benefiting Bayer and the lawyers who helped develop the plan.
At the heart of the objections is the view that if approved, the class action plan could limit the due process rights of people to go to trial and seek punitive damages awards in the future if they are diagnosed with NHL after Roundup exposure, while allowing Bayer to keep selling Roundup products with no express warning of a cancer risk on the label.
The limiting of plaintiffs' ability to seek punitive damages while not limiting Bayer's ability to keep selling Roundup distinguishes this settlement from any similar class action, according to an opposition brief filed by the nonprofit legal group Public Justice. The plan is a "blueprint for how manufacturers can cut off victims' rights to seek punitive damages from injuries caused by hazardous pesticides, the group said.
Monsanto's 'own system of justice'
Another key problem with the plan, according to critics, is that everyone in the United States who meets the criteria as a potential plaintiff would automatically become part of the class and subject to its provisions if they did not actively opt out of the class within a specified time period. If people did not opt out – even if they didn't know about the plan – they would be stripped of the right to seek punitive damages if they ever did file a lawsuit.
"Monsanto tried to buy its own system of justice and it is wonderful that the court saw through what they were trying to do," said lawyer Gerson Smoger, who is among the opponents. "The settlement would've been a travesty for those who use Roundup."
$11b Roundup litigation
The class action plan, which is separate from an $11 billion settlement of Roundup litigation announced by Bayer last June to address already filed lawsuits, needs approval from Chhabria. The judge has been overseeing the federal multidistrict Roundup litigation involving thousands of plaintiffs from around the United States.
Bayer's desire to find a settlement is "not surprising because the alternative to settling – continuing to lose trials left and right – is not attractive," the judge wrote in his ruling.
"In sum, the settlement proposed by these attorneys would accomplish a lot for Monsanto," he wrote. "It would substantially diminish the company's settlement exposure and litigation exposure at the back end, eliminating punitive damages and potentially increasing its chances of winning trials on compensatory damages. It would accomplish far less for the Roundup users who have not been diagnosed with NHL—and not nearly as much as the attorneys pushing this deal contend."
Carey Gillam is a journalist and author, and a public interest researcher for US Right to Know, a not-for-profit food industry research group. You can follow her on Twitter @careygillam.
Her new book is The Monsanto Papers: Deadly Secrets, Corporate Corruption, and One Man's Search for Justice, published by Island Press.
The Monsanto Papers: Getting dirty, Part 2
The book tells the true life tale of Lee Johnson, a California groundskeeper who was diagnosed with terminal cancer he alleged was caused by his exposure to Monsanto's Roundup herbicides.
Lee wouldn't think about the sprayer accident again until many months later, when an odd-looking scaly lesion popped up just above his right knee. It itched and cracked and oozed. As time passed, the patch near his knee was matched by another on his arm. And another on his torso. Small bumps the size of BB pellets sprouted out of his skin. Lee changed the laundry soap and dryer sheets his family used and tried an assortment of creams, but nothing helped. Dread grew with every new spot that erupted. Eventually, nearly Lee's entire body, including his face and scalp, was covered in painful sores. Some became infected, including one on his head.
As his condition progressed, Lee's once unmarred skin broke open at the slightest touch in some places, and wearing clothing became almost unbearably painful. A lesion even developed on one of his eyelids, making it impossible for him to open the eye without grimacing in pain. The softer the skin where the lesions sprouted, the more searing the pain, Lee learned.
Strangers started to stare when Lee went out. His sons' friends asked if he'd been burned in a fire or suffered from some disfiguring disease. "What's wrong with your dad?" became a common question for Ali when Lee attended a football practice. He took to wearing long sleeves, long pants, and large sunglasses in public, hoping to avoid the pitying glances from strangers.
In the early stages, when the skin eruptions were fewer, flatter, and less painful, Lee could still sometimes tell himself they might just be part of a weird rash. He kept going to work as usual and kept doing his regular rounds, including spraying weed killer. He convinced himself that the skin problems would resolve themselves, just as the bee stings and bloody scrapes he suffered on the job always had. But when the sores spread to his face, Lee had had enough. It was time to see a doctor and, he hoped, find a medicine that would clear it all up.
"I don't really know what this is"
Author Carey Gillam with Lee Johnson.
The Vallejo public health clinic was not a large facility, and the physician who saw Lee was at a loss for how to help him. She pulled out a reference book, and together she and Lee looked through pictures of various skin ailments, hoping to find a match.
"I don't really know what this is," she admitted to Lee.
Lee's next stop was a neighborhood dermatology practice. A lovely dark-haired physician's assistant examined him with a worried frown. Like the public health doctor, she was not certain what she was looking at. The best plan was to biopsy a lesion and send the tissue to the cancer experts at the University of California, San Francisco. They would know what it was, she told Lee.
The results, when they came back, were not good. Lee was told he had squamous cell carcinoma (SCC), a type of skin cancer typically caused by long-term exposure to the sun or other ultraviolet radiation. Overall incidence of the disease has jumped by 200 percent in the past thirty years, killing an estimated fifteen thousand Americans per year.
The doctors emphasized to Lee that the cancer was very serious— unlike some other forms of skin cancer, SCC can metastasize into a patient's lymph nodes and spread quickly. But it can also be very treatable: patients who undergo surgical removal of lesions, as well as radiation and immunotherapy, generally have high survival rates. This was not a death sentence, he was told. Many patients improved significantly with something called photodynamic therapy, a treatment that exposes skin to certain drugs and types of light in a combination that kills the cancerous cells.
Skin cancer made sense, Lee supposed. He did work outside; he always had been active and athletic and enjoyed the California sunshine. It was stunning news, but Lee took it in stride. He was otherwise healthy and active and felt sure he could beat the disease now that he knew what it was.
The next several weeks and months became a blur of doctors, treatments, and more tests, along with mounting medical bills, which Lee struggled to keep up with. There was some dispute over the diagnosis— was this really SCC or something more insidious? The doctors did biopsies of his skin and his lymph nodes and took extensive scans in a probe for more complete answers. Lee had health insurance through the school district, but it didn't pay for everything, and deductibles and co-pays added up fast, even as it seemed to take far too long to find answers.
Eventually, doctors would determine that though the lesion on Lee's thigh was SCC, Lee also had mycosis fungoides, a type of non-Hodgkin lymphoma that shows up on the skin but can spread through the body, including to the lungs and brain. It begins when certain white blood cells, called T cells, become cancerous. The exact cause of mycosis fungoides is not known, though it does tend to afflict men twice as frequently as it does women, Lee learned.
Through it all, Lee wondered about the sprayer accident. It had been less than a year from the day he was drenched in the pesticide to the day the lesions started showing up, and he could not think of anything else that might have triggered the disease. He started trying to find answers online, researching information about the toxicity of Monsanto's products, but as far as he could tell there was no one else like him—no one who had developed this type of cancer from using a Monsanto weed killer. He called a poison control hotline, but if there was information linking cancer to the chemicals he had been using, Lee wasn't finding it.
"I just want to die"
Credit: Mike Mozart/flickr
In November of 2014, Lee called Monsanto directly after finding a phone number for the company on the internet. A woman who worked as a product support specialist listened to Lee describe his accident with the tank sprayer and his concerns that it might be the cause of his cancer. She promised to try to find someone who could call him back with answers to his questions, documenting Lee's description of this sprayer accident and his skin lesions in an email to one of Monsanto's medical experts. "His entire body is covered in this now and doctors are saying it is skin cancer," she wrote. "He is just trying to find out if it could all be related to such a large exposure to Ranger Pro. . . . He is looking for answers."
Lee never did receive a call back. With no proof to back up his suspicions, he continued to work as he could, continuing to spray even as he underwent treatments for his cancer.
Lee's doctors did not seem to share his curiosity about a cause. One of his doctors would later testify in court that she had not spent much time trying to figure out what had triggered Lee's condition because her focus was on how to get him better.
By late 2014, Lee had a team of doctors working to rein in the cancer with an aggressive treatment plan that often felt harder to bear than the disease itself. The lesion near Lee's knee was surgically sliced off. He underwent a round of radiation, and then another. Immunotherapy was next. An alternative to traditional chemotherapy, immunotherapy uses biological substances to try to strengthen the body's immune system to fight cancer. The treatments made Lee so sick some days that he couldn't get out of bed, couldn't eat, couldn't make it to watch his kids play sports. Family trips to the beach became a thing of the past. Even a dinner out with the family became too hard for Lee to bear. His skin, still marred from the lesions, became even darker after the radiation, and looking into the mirror above his bathroom sink, Lee didn't recognize himself.
Many nights, Lee would cry quietly into his pillow, trying not to wake Araceli or the boys. At other times, he seemed to be in shock, retreating into himself. The exhaustion and pain took a toll on his once razor-sharp attention to detail, leaving him feeling as if lost in a fog. Araceli worried that he was depressed, and she noted that each day, her husband seemed to be thinner, quieter, fading away.
One day as Lee struggled to dress himself, Araceli saw that his clothes hung off his wasted frame. His feet were so swollen and covered in the oozing sores he called "stingers" that he cried as he tried to pull on his shoes.
"I just want to die," he told her, sobbing.
Later, much later, Lee would remember that period—as hard as it was—with longing. Though the days and nights were often filled with pain, frustration, and fear, those months also represented a cushion of time when Lee still could envision a long future, a time when he believed that he could regain his health and watch his children grow up.
There were periods when the treatments seemed to be succeeding and he would feel good enough to go to his job, to take his boys to the park, or to work on writing a song he planned to perform one day.
But then there was another work accident, another accidental dousing of weed killer when a backpack sprayer he was using tore and leaked herbicide down his neck and back. Lee emailed his doctor to alert her to the exposure. "Hopefully it doesn't send my current situation into a frenzy," he wrote.
Lee's fear soon became a reality as the lesions that had seemed to settle and soothe came back with a fury, spreading pain like wildfire across his flesh, leaving him more scarred. And more scared. Lee was now fully convinced that his cancer was connected to the chemicals he'd been spraying, and he refused to continue his work applying the weed-killing chemicals. The school district provided some money for a while but eventually ended disability payments.
The loss of income hit the family hard. The rental house with the smooth marble countertops, leafy trees, and large backyard was now a luxury of a past life, and the family squeezed into a tiny two-bedroom ground-floor apartment near a busy highway. It was cramped and dark, and Lee hated it. Weeds overran the dirt patch near the front door, and paint peeled off the siding of the complex. Only weeks after they moved in, the family came home one night to find the kitchen window broken. Burglars had taken their television and the boys' video gaming system, along with other trinkets.
Lee's medical file noted that by September of 2015, Lee's skin was "getting new thicker plaques with some ulcerations." Old lesions were rising back up at the same time that new ones were growing. The worst was happening. Lee's cancer had progressed into what his doctors referred to as "large cell transformation disease."
There were some new treatments offered through clinical trials Lee could try, but "it definitely was not a good sign," one of his doctors would later recount. "He was heading in the wrong direction." Median survival for patients in that condition was one and a half years.
Lee's vision of a long and bright future started to fade into something small and dim. He realized with a sad irony that his skin was so ravaged that the "Blessings" tattoo on his forearm seemed to be slowly disappearing. He would not be there to watch his boys grow up after all.
Lee was dying.
Carey Gillam has spent more than 25 years reporting on corporate America. Her first book, Whitewash: The Story of a Weed Killer, Cancer, and the Corruption of Science, won the 2018 Rachel Carson Book Award from the Society of Environmental Journalists, and was named an "Outstanding Book of the Year" by the 2018 Independent Publisher Book Awards. Gillam is currently Research Director for the non-profit consumer group U.S. Right to Know. Her new book is The Monsanto Papers: Deadly Secrets, Corporate Corruption, and One Man's Search for Justice, published by Island Press.
Banner photo credit: jetsandzeppelins/flickr
The Monsanto Papers: Getting dirty, Part 1
The book tells the true life tale of Lee Johnson, a California groundskeeper who was diagnosed with terminal cancer he alleged was caused by his exposure to Monsanto's Roundup herbicides.
Sunlight had not yet started to streak its way across the Northern California landscape as 41-year-old Lee Johnson pushed himself up out of bed. In the darkness, he pulled on a pair of jeans and a hooded shirt bearing a patch from the Benicia Unified School District. Down the hall, Lee's wife, Araceli, prodded their two young sons into wakefulness. There was no hint that Lee's life was about to take a tragic turn.
Rising early was not just a habit; it was a requirement of Lee's job as a groundskeeper for the school district, which rotated roughly five thousand students through its mix of elementary, middle, and high schools. Lee had been in his current position for only a year but enjoyed a broad job description and a five-figure salary that helped his family claw its way out of near homelessness and into a middle-class lifestyle. They had recently moved into a split-level two-bedroom house in what the young family considered an affluent neighborhood in the city of Vallejo. The beige stucco was not really theirs—just a rental—but it felt like home. The kitchen boasted black marble countertops and maplewood floors, and a small children's park was just a few paces from the front door. Lee loved the tall, leafy trees that lined the streets and the grassy backyard, where a family of squirrels cackled as they chased each other through the branches.
Lee's income, combined with what Araceli earned from various part-time jobs, provided enough for an occasional vacation with the kids and a sense of contentment that Lee had long craved. He still wrote music and dreamed of selling and performing his songs, but his focus was on his family, specifically on being as present and engaged with his sons as possible. He did not want them growing up feeling his absence, the way he had with his own father. Lee had a tattoo inscribed on his forearm reading "Blessings for the righteous." The blessings for his family had finally started to flow, Lee believed.
Hazardous chemicals
Author Carey Gillam with Lee Johnson.
The work for the school district wasn't easy, but Lee knew that as long as he kept working hard, he could count on a long career with a growing income. He didn't mind starting before dawn or working outside in rain or shine, cold or heat. He found the work satisfying, knowing that every day he made the school surroundings a little cleaner, neater, or safer.
Whether it was trapping rats and raccoons, painting walls, installing irrigation pipe, or applying insecticides to wipe out armies of ants and herbicides to kill off invasive plants, Lee was one of the school district's go-to guys for getting dirty work done. Supervisors had just recently lauded his performance in a written review, highlighting Lee's "positive successful approach" and his "remarkable ability to grasp all aspects of his responsibilities."
On this day—a day he would later be forced to repeatedly recount to doctors and lawyers and to a courtroom full of spectators—Lee's task was supposed to be fairly simple. He would mix up a fifty-gallon drum of weed killer and then spray the concoction over a hilly area between two schools that held baseball and soccer fields. The Benicia district, like many in the United States, did not want its school grounds to appear unkempt, and doing his job right meant Lee needed to stay one step ahead of common California weeds, such as "cheeseweed," which could grow more than two feet tall if left alone.
He did this often, mixing and applying products with macho- sounding brand names such as Roundup and Ranger Pro. Developed by the giant chemical corporation Monsanto Company, the brands were top sellers, largely because the company advertised them as being much safer than rival products, nontoxic to people even though the chemicals were deadly to plants. Some marketers even advised that the Monsanto herbicides were "safe enough to drink." Despite the safety slogans, Lee was wary of these and other chemicals, and he always made sure to arrive at work early enough to don heavy protective gear before beginning a morning of spraying. He also liked to get the wet mixtures on the grounds well before the children would be out playing sports or enjoying recess.
This morning, the couple spoke few words during their predawn commute, and Araceli let Lee out at the highway exit closest to the district offices rather than making the extra turn. She did this often; it was only a short twenty-minute walk for Lee, and he didn't mind. It was better than riding his bike to catch a bus to work, as he did on days when she couldn't or wouldn't drive him.
Lee hopped out of the car, told his boys a quick goodbye, and started the mile-and-a-half walk to his work site at a brisk pace, eager to get the day going. He fast-walked past an aging automotive shop, a liquor store, and a Chinese restaurant and then cut behind a community center to reach the school district office.
Several white district pickup trucks waited there, their beds filled with green hoses, brooms, rubber trash containers, plastic buckets, and other tools of the trade. A rectangular metal building stored the supplies the school district's maintenance workers needed. And across the parking lot was a low metal trailer where workers clocked in and out and ate their lunches. One small storage shed stood apart from the rest of the buildings. A sign hanging on the door read "Danger, Hazardous Chemicals."
Lee was responsible for supervising two coworkers who helped him spray pesticides on school grounds, assigning areas for the guys to treat and making sure they wore their protective equipment. The gear was extensive and included white coveralls with elastic cuffs, chemical-resistant rubber gloves and boots, and heavy goggles.
"The juice"
Credit: Mike Mozart/flickr
Once they had their jumpsuits on, Lee and his team mixed up their weed-killing chemicals for the day. Pulling from large drums of Ranger Pro, Lee and his team mixed the concentrate with water and antifoaming agents before transferring what they called "the juice" into spray tanks. Lee also mixed up enough to fill a 50-gallon tank that was mounted in the back of his work truck. The tank had a motorized engine and was connected to a long hose and a three-foot spray wand that could push the chemicals over a bigger area faster than could a man carrying a backpack sprayer.
The assignment was to spray weeds around an elementary school, including on a hilly area lying between that school and an adjacent high school. Lee loaded the full tank onto the district truck and drove the ten minutes from the maintenance shed to the school, tuning the truck radio to his favorite jazz station as he drove. When he arrived, he decided to start at the top of the hill and work his way down. Hopping out of the cab, he grabbed the hose reel and proceeded to unwind the 250-foot hose, sweeping the spray wand back and forth as he walked down the hillside. As the sun rose, the day grew warm, but there was little wind meaning less spray would drift onto Lee's face. It was a good day to spray, he thought. When he was about halfway down the hill, the hose was nearly fully extended, meaning Lee would have to move his truck if he was going to finish the job. He got back into the truck and drove slowly down the slope, not bothering to reel in the hose. He figured that once he was parked at the bottom, he could simply walk back up to the point where he'd left off and spray his way down the last half of the hill.
But just as Lee was slowing to a stop, he heard and felt a jolt from the bed of the truck where the tank full of weed killer rested. He threw open the door and saw that the hose, which had been dragging behind the truck, had somehow become caught in a wide crack in the asphalt. The tension had yanked the hose from its connection to the tank, and a fountain of amber-colored chemical was spewing into the air.
"Oh, shit!" Lee exclaimed, stricken with a fear that briefly froze him in place. He told himself he couldn't panic; the situation could get serious very fast if he didn't stop the toxic flow. He raced around to the back of the truck and clambered into the bed, propelling himself directly into the foul-smelling spray so that he could flip the red switch that shut down the tank motor. His mind was on the pump, but he was vaguely aware of being wet—soaked, in fact. His face, neck, and back felt as if a bucket of water had been poured over him. There wasn't time to worry about that. Even without the motor to drive the pump, the fluid continued running out of the truck bed and onto the ground, making small streams down the hill and toward the property's wastewater drain, which led into a nearby bay where people fished and children sometimes swam. Lee often spent lunch hours there, feeding the gulls and watching sailboats glide by. Letting toxic chemicals flow into the waterway could get him in trouble, Lee knew.
Grabbing a shovel he kept in the truck bed, Lee started piling dirt into a makeshift dam to sop up the wet mess, praying he could stop the flow before it escaped into the drains. The dirt worked like a charm, slowing and soaking up the leak. Lee then carefully reeled the hose back in before stripping off the now-drenched jumpsuit, which was designed to protect the wearer from the light drift of a normal spray job but was not much help for the dousing he had just experienced. Even the shirt he wore underneath the protective suit had become coated in the spray, so he shrugged that off too. He hurried back to the district maintenance shop, where he turned his attention to trying to scrub the chemicals off his body.
Lee spent the afternoon tending to other district chores and trying not to worry about the spray accident. He didn't feel sick, and his smooth dark skin seemed unscathed by the errant chemical bath. Getting dirty was just part of the job, nothing to worry about, he told himself. That night, at home with Araceli and the kids, he didn't even mention the accident. He knew in the back of his mind the chemicals were toxic, but he had also been told repeatedly that Monsanto's products were the safest out there. He pushed the fears to the back of his mind and resolved not to let the incident upset him.
Tomorrow: Part 2
Carey Gillam has spent more than 25 years reporting on corporate America. Her first book, Whitewash: The Story of a Weed Killer, Cancer, and the Corruption of Science, won the 2018 Rachel Carson Book Award from the Society of Environmental Journalists, and was named an "Outstanding Book of the Year" by the 2018 Independent Publisher Book Awards. Gillam is currently Research Director for the non-profit consumer group U.S. Right to Know. Her new book is The Monsanto Papers: Deadly Secrets, Corporate Corruption, and One Man's Search for Justice, published by Island Press.
Banner photo credit: Man operates a pesticide sprayer in Egypt. (Credit: USAID Egypt)
