BAYER ROUNDUP WRIT TO SCOTUS ON HARDEMAN TRIAL VERDICT: LAST DITCH ATTEMPT TO AVOID POST-MDL 2741 FALLOUT & BOARDROOM RECKONING
By Mark A. York, Editor
August 18, 2021
(MASS TORT NEWS) Bayer filed a Writ of Certiorari with the US Supreme Court on Aug. 16, regarding the $25 million federal court verdict in the Edwin Hardeman trial, who was able to show exposure to glyphosate from spraying Roundup on his property caused his non-Hodgkins lymphoma.
Related Court Documents:
See Judge Chhabria ruling below on Bayer’s July 15, 2019 post verdict motion: Hardeman Roundup Post-Verdict Ruling J Chhabria July 2019 Upholding Damages
MDL 2741 USDC Northern District of California, Judge Vince Chhabria (link):https://cand.uscourts.gov/judges/chhabria-vince-vc/in-re-roundup-products-liability-litigation-mdl-no-2741/
As shown in trial verdicts in both state and federal court, Monsanto and its ill-fated merger partner Bayer, there are no limits to corporate bad conduct and manipulation of science and data for profit. The blatant examples of permitted governmental access, control of regulatory decisions and framing of public opinion to suppress the fact that Roundup has been known to cause cancer for decades, is now a matter of public record as well as being embedded in the minds of consumers worldwide.
It seems the Bayer corporate office in Germany is in a bad spot, although currently front facing for public relations and earnings reports, the catastrophic failure of the Monsanto merger has to be shown as under control and being managed by Bayer CEO Baumann. Logic would conclude that shortly after the roundup litigation is resolved that there will be a massive overhaul of the executive suite at Bayer corporation.
The Writ asks SCOTUS to review the 9th Circuit Court of Appeals’ decision of the verdict on two grounds, first that the California state law’s failure-to-warn claims are preempted by federal law. The second requests the Supreme Court address whether the 9th Circuit’s standard for admitting testimony is inconsistent with that court’s precedent and a federal rule of evidence.
RECORDS OF MONSANTO-BAYER BAD CONDUCT
Looking for unsealed Monsanto emails, communications, studies and other memoranda, please visit the Monsanto Papers page courtesy of our friends at Baum Hedlund:
For transcripts and exhibits from previous Monsanto trials:
For a list of Monsanto/Bayer bad conduct materials and parties who assisted Monsanto for decades: Baum Hedlund Repository Re: Roundup Assets (Monsanto Chart of Secret Documents)
Example of Monsanto manipulating the US Government (Environmental Protection Agency): https://www.baumhedlundlaw.com/assets/Internal-Email-Monsanto-Lobbying-Efforts-in-US-to-Pressure-WHO-to-Clarify-IARC-Classification-of-Glyphosate.pdf
U.S. Judge Vince Chhabria (MDL 2741) court order where he references Bayer’s misleading efforts to suppress the risks of Roundup as part of his settlement fee “holdback order” June 2021 Roundup MDL Court Order Referencing Monsanto Bad Conduct
Bayer Keeps Losing Appeals
California state appeals court on August 9th upheld the Pilliod verdict, which was originally $2 billion and subsequently reduced by the trial judge to $89 million. The case is Pilliod v. Monsanto, A158228, California Court of Appeals, First District (San Francisco).
In 2019, a jury awarded Edwin Hardeman $80 million in damages after the jury ruled that his non-Hodgkin’s lymphoma was caused by his use of Roundup. In May 2021, the U.S. Court of Appeals for the Ninth Circuit in San Francisco upheld the Hardeman judgement. Bayer officials have maintained the Hardeman case could shape how future cases are litigated.
In May 2021, a federal judge rejected Bayer’s $2 billion Roundup settlement, and the company responded by outlining its legal strategy to investors by stating, Bayer believes the Hardeman case offers its best chance of receiving Supreme Court review.
“We actually do believe that the U.S. Supreme Court should give strong consideration to accepting our petition to review the Hardeman case and render a positive ruling,” CEO Baumann said.
“We believe that the Hardeman case presents important legal topics such as federal preemption; new studies and regulatory rulings prove that science continues to be on our side. This includes a brief filed by the EPA with the U.S. Court of Appeals for the Ninth Circuit in May, in which it affirmed, once again, that glyphosate, ‘poses no human health risk of concern,’ as well as the most recent review in the EU.”
Baumann also offered that the company could secure a significant financial upside if the Supreme Court grants a review and rules in Bayer’s favor. Which seems to be a reference to the need to keep a good public relations strategy on display, to defer form the continued stock drop even in light of ongoing settlements.
“The details provided today on the two scenarios should provide you with comfort that, based on the methodology we have shared, the glyphosate litigation exposure should now be reasonably accounted for and leave significant upsides,” he said.
“In the event of a favorable Supreme Court decision on the case, they should also remove the uncertainty and ambiguity that actually has been weighing on the company.”
Another recent appeal loss for Bayer in California state court, stems from an Oakland jury’s verdict that found that exposure to Roundup caused Alva and Alberta Pilliod to get cancer and that Bayer should pay the $2 billion as punishment because Monsanto covered up the herbicide’s health risks. The trial judge determined the punitive damages of $2 billion were far too high and reduced the damage award to $86 million.
The appeals court ruled that the modified punitive damages were justified because the Pilliods provided “substantial evidence from which the jury could infer that Monsanto acted with willful disregard for the safety of others” in connection with its handling of the weed killer.
The ruling is “well reasoned and correct,” Mike Miller, a lawyer representing the Pilliods, said in an email. “Monsanto deserves to be punished for decades of hiding the truth about Roundup.”
Bayer’s Long-Term Roundup Risk-Mitigation Actions (from>https://media.bayer.com/baynews/baynews.nsf/id/Bayer-Provides-Update-on-Path-to-Closure-of-Roundup-Litigation)
As part of the five-point plan, the company will also take additional steps to help close the door on this litigation and ensure that any claims brought by individuals who use Roundup™ in the future are few in number and unlikely to succeed. These measures include that the company and its partners will replace its glyphosate-based products in the U.S. residential Lawn & Garden market with new formulations that rely on alternative active ingredients beginning in 2023, subject to a timely review by the U.S. Environmental Protection Agency (EPA) and state counterparts. This move is being made exclusively to manage litigation risk and not because of any safety concerns. As the vast majority of claims in the litigation come from Lawn & Garden market users, this action largely eliminates the primary source of future claims beyond an assumed latency period. There will be no change in the availability of the company’s glyphosate formulations in the U.S. professional and agricultural markets.
Moreover, the company will engage in discussions with EPA about Roundup™ labels with the goal of providing more information to users about the science as an additional element towards ensuring even more informed purchasing and application decisions. It will also set up a new website with scientific studies relevant to Roundup’s safety that will provide even more transparency to purchasers about the products they use. The website is expected to be launched by the end of 2021.
“We have set up a very strong team that reports directly to the Board of Management and is laser focused on the further execution of our five-point plan, while the Board of Management will now fully concentrate on business performance and strategy execution”, said CEO Baumann
What the long term consequences of Bayer’s Hail Mary request to the Supreme Court remains to be seen. Perhaps the Bayer legal team did not take into account the recent SCOTUS decline in hearing the Johnson & Johnson appeal of the talcum powder cancer $2.5 billion verdict. This may signal a change in the perception and intent of corporate America, as well as the general public, that corporate bad conduct as a business model is no longer an accepted business practice and these changes may be supported by the courts.
Additional Supporting Roundup Materials:
Hardeman v. Monsanto, 1st amended complaint, Feb. 12, 2016
Roundup Products Liability Litigation (MDL)
Pre trial order on bifurcation for the 3 bellwether cases
Monsanto: judge threatens to ‘shut down’ cancer patient’s lawyer
Judge in Monsanto Roundup trial is already hindering testimony
Lawyer’s response to show cause
Order sanctioning Mr. Hardeman’s counsel, Feb. 26, 2019
Judge Sanctions Attorney in Second Day of Roundup Trial
Roundup Cancer Trial Close to Mistrial After Third Juror Dismissed
Concerns over Judge’s Jury Instructions
Federal Court Documents (including transcripts) on USRTK website
Transcript of Proceedings, with verdict, March 19, 2019
Verdict form, phase 1
Monsanto: Roundup substantial factor in man’s cancer, jury finds in key verdict
Monsanto Weedkiller Roundup Was ‘Substantial Factor’ in Causing Man’s Cancer, Jury Says
Jury finding upends Bayer’s Roundup defense strategy: experts
Verdict Reached – Trial Transcript March 27, 2019
Man awarded $80M in lawsuit claiming Roundup causes cancer
Sanctions ordered against attorney Jennifer Moore
Judge will reconsider $80 million damage award in Monsanto cancer case
Judge ruling on Hardeman’s damages, July 15, 2019
Bayer appeals $25 million Roundup cancer verdict in US
Appeal by Bayer on Dec. 13, 2019
Brief of the United States as Amicus Curiae in support of Monsanto
U.S. government doubles down on support of Bayer, Roundup
Another loss for Bayer over Roundup cancer claims as appeals court shoots down preemption argument
Federal appeals court affirms $25 million judgment in Bayer’s Roundup cancer case
Bayer Suffers Second Appellate Defeat With Ninth Circuit Ruling in Roundup Cancer Case
Procès du Roundup : une condamnation de Monsanto confirmée en appel en Californie
Petition for a writ of certiorari to the United States Court of Appeals for the Ninth Circuit, Aug. 16, 2021
Bayer takes legal battle over Roundup cancer claims to U.S. Supreme Court end
Mass Tort News
Disclaimer: Certain excerpts, links and references within this article were taken from publicly available records and no rights to those properties or materials are asserted or intended via reuse.