PARAQUAT PRODUCTS LIABILITY LITIGATION
Case No. 3:21-md-3004-njr
Chief Judge Nancy Rosenstengel
US District Court, SD Illinois
February 22, 2022
By Mark A. York
(MASS TORT NEWS) Paraquat MDL 3004 Chief Judge Nancy Rosenstengel has scheduled the first bellwether trial to start on November 15, 2022. Subsequent trials have dates of March 13, 2023, June 12, 2023, and September 18, 2023. A second Paraquat docket is underway in California state court and consolidated in Contra Costa County by the state’s Judicial Counsel, having been assigned California Judicial Coordination case number JCCP 5031, before Honorable Judge Edward G. Weil.
There are now 681 (See JPML LINK) lawsuits pending in the Paraquat MDL. MDL Judge Nancy Rosenstengel issued an order requiring all Paraquat plaintiffs to complete a Plaintiff’s Assessment Questionnaire (PAQ), also known as Plaintiffs Fact Sheet. The PAQ is the prove up tracking document for discovery requests, where plaintiffs provide documents and answer questions regarding their medical and employment history and their exposure to Paraquat,(the case consolidated interrogatories and requests for production).
June 7, 2021 MDL 3004 JPML Transfer and Consolidation Order:
Summary: There are certain variables that may impact the Paraquat MDL which relate to current Syngenta ownership structure (China based) as well as the political views of this becoming a Roundup II (Bayer purchase of Monsanto and assuming legal liabilities of the Roundup docket). There is an unknown yet potentially critical variable of Syngenta’s board.
1. Do they want a quick opt-out and settlement due to the bad press and optics of owning a product that’s considered globally dangerous.
2. Syngenta assumes a hard corporate stance and fight the litigation as is the common standard of foreign entities from Asia, this Syngenta group is an unknown yet highly financially capable entity (see link below to Syngenta Chinese Board of Directors). The number of cases filed to date versus the global pool is unknown at this point, there are claims from select “ESC” level firms that they have hundreds of cases each that are in the filing pipeline. Target number of case filed by January 1, 2022 should be at least 1000 formally filed cases in MDL 3004, to ensure that the docket is viable as to sincere settlement discussion and potentially securing a quick opt out.
3. There is also science emerging regarding “latent pregnancy and in-utero” issues regarding potential birth defects from Paraquat exposure that may be able to support the “over-spray: claims as a very specific pool of claims, but this expanded viable science will help the overall claims valuations to show additional harmful effects.
4. Suppression of science and medical data Paraquat as a harmful chemical agent rests on ESC/PSC ability to prove the science and having same admitted, where the popular science views are that “paraquat is dangerous” which will again directly relate back to current Syngenta ownership’s appetite on bad press, large verdicts and fighting a years long MDL battle.
Note-Phillips 66 and Chevron were dismissed Nov. 1, 2021 [see CMO No. 11] as defendants, which is potentially a good thing as it leaves Syngenta as sole defendant.
About Syngenta: Company is a wholly owned part of a Chinese based chemical conglomerate as part of a 2020 acquisition. This may affect determination of settlement timeline based on lack of MDL experience and current board appetite to assume potential major liabilities i.e. “avoiding a repeat of Bayer- Monsanto acquisition and assumption of Roundup liabilities.
Focus for settlement: $11.1 billion in crop protection sales
“CROP PROTECTION SALES”
Board of Directors Are All Chinese Nationals:
GAONING (FRANK) NING
Chairman of the Board
Member of the Board of Directors
Chairman of the Governance Committee
Frank Ning was appointed Chairman of Sinochem Holdings Corporation Ltd. in April 2021. He served as Chairman of the Sinochem Group Co. Ltd. from 2015 and Chairman of China National Chemical Corporation Limited (ChemChina) from 2018.
Prior to his current post, Frank Ning was President of China Resources Enterprise Ltd., Vice Chairman and President of China Resources (Holdings) Co. Ltd., and Chairman of COFCO Corporation.
In addition to his functions in Syngenta Group, Frank Ning holds the following board memberships:
– Listed companies: Chairman of Pirelli & C. S.p.A., Chairman of Far East Horizon Ltd., Chairman of China Jinmao Holdings Group Ltd.
– Non-listed companies: Chairman of ChemChina, Chairman of Syngenta AG, Chairman of Sinochem Group Co. Ltd., Chairman of Luxi Group Co Ltd., Chairman of Sinochem Hong Kong (Group) Co. Ltd., Board Director of ADAMA Agricultural Solutions Ltd.
Frank Ning is Co-chair of the APEC Business Advisory Council (ABAC), Chairman of the APEC China Business Council, and Executive Director of the International Chamber of Commerce (ICC). He has been named one of China’s Most Influential Business Leaders by Fortune, recognized by CNBC in the Asia Business Leader Awards, and presented with the Asian Corporate Director award by Corporate Governance Asia.
Disclaimer: Numerous studies are now showing that prolonged exposure to paraquat can lead to early-onset Parkinson’s disease. Studies have found that agriculture workers who are exposed to paraquat over long periods have a significantly higher rate of early Parkinson’s. People who live near farms where paraquat is applied also showed increased rates of Parkinson’s disease, “inadvertent exposure is not recognized as a valid claim as of November 1, 2021 by MDL Leadership” there are others who are pursuing these claims, there is an extremely high risk that these claims may not survive final settlement census criteria.
Science In Support:
- PP796 and Paraquat: the accidental swallowing of Paraquat is a whole different issue but it may have caused the deaths of thousands of people worldwide
- Paraquat mice study on inhaling Paraquat and the loss of smell which underscores the toxicity with limited exposures
These products contain Paraquat:
- Paraquat Concentrate
- Helmquat 3SL
- Cyclone SL 2.0
- Para-Shot 3.0
SUMMARY OF RELEVANT PARAQUAT INFORMATION
Paraquat is an extremely toxic chemical that is highly poisonous if ingested, with Paraquat health risks leading 32 countries to ban the chemical completely.
How toxic is Paraquat? One eighth ounce of Paraquat, is enough to cause death 70% of the time. Over the last 12 years, a growing body of scientific research has established that normal occupational exposure to Paraquat can cause Parkinson’s Disease.
Parkinson’s Disease is a neurologic disorder in which deterioration of certain cells in the brain gradually impairs the brain’s ability to control motor functions in the body. Symptoms of Parkinson’s include impaired movement, tremors, lack of balance, and muscle stiffness.
One of the first studies recognizing a link between Paraquat and Parkinson’s Disease was published in the American Journal of Epidemiology in 2009. The study found that individuals who lived within 1600 feet of areas where Paraquat was regularly sprayed had a heightened risk of Parkinson’s Disease. The results of a more comprehensive study were published in 2011. This study concluded that there was a “strong association” between Paraquat and Parkinson’s.
These first 2 studies faced criticism over study criteria techniques and reliability because they were not “controlled” studies. In 2014, the results of 5 separate case-controlled studies were published in the Annual Review of Pharmacology and Toxicology, confirming exposure to Paraquat resulted in a greater risk of Parkinson’s Disease. This eventually prompted the EPA to announce in 2016 that it was conducting its own safety review of Paraquat.
On March 24, 2021, Greenpeace published “The Paraquat Papers.” This piece details the history of attempts by Syngenta and its predecessor, Imperial Chemical Industries (ICI), to conceal Gramoxone’s risks from the public. Allegedly, ICI claimed to have added the emetic PP796 in Paraquat products to prevent fatal poisoning.
Despite this claim, internal company documents revealed that it failed to do this. It also revealed that the company knew of this problem. ICI continued to publicly assert the emetic’s effectiveness. Additional documents suggest that it mischaracterized the addition of PP796 to keep Gramoxone on the market.
Jon Heylings, a former Syngenta toxicologist, also reported on the low PP796 levels in Gramoxone. He warned that the emetic levels were not enough to induce vomiting in individuals that swallowed the “minimal lethal dose.”
Heylings claimed that a former toxicologist for Imperial Chemical Industries (ICI), Syngenta’s predecessors, manipulated data to incorrectly suggest that humans were ten times as sensitive to PP796 than the other three animals that researchers used in tests. These concerns were reported in several memos where Heylings argued that the former toxicologist’s data “misled” the business, advising that higher PP796 doses would reduce the paraquat poisoning fatality rate.
Nonetheless, ICI ignored Heylings’ concerns. The PP796 levels in Gramoxone became the United Nations’ Food and Agricultural Organization’s standard for paraquat-based weed killers. Heylings will be offering deposition testimony in the Paraquat MDL litigation in 2022 sometime.
What Is Paraquat?
Paraquat (paraquat dichloride) is an extremely toxic chemical that is used to kill weeds, grass, and other unwanted vegetation. Despite being banned in many countries, Paraquat is one of the most widely used industrial herbicides in the world.
Paraquat is legal in the U.S., but the Environmental Protection Agency (EPA), classifies it as a “restricted use” chemical. This means that Paraquat can only be bought and used by commercially licensed users, primarily.
The Paraquat herbicide has been around since the early 1960s. The use of Paraquat has rapidly increased over the last 20 years because weeds have become resistant to other products. According to the EPA, Paraquat is currently the most commonly used type of restricted use herbicide in the U.S. Paraquat comes in liquid form and is sprayed onto crops in a variety of ways. Paraquat has a bright blue color and a distinctive odor.
Paraquat herbicides are manufactured and sold under several different brand or product trade names. Gramoxone is the most common trade name for Paraquat. Gramoxone is manufactured by Sygenta, a global agrochemical company now owned by a Chinese chemical consortium.
Disclaimer: Numerous studies are now showing that prolonged exposure to paraquat can lead to early-onset Parkinson’s disease. Studies have found that agriculture workers who are exposed to paraquat over long periods have a significantly higher rate of early Parkinson’s. People who live near farms where paraquat is applied also showed increased rates of Parkinson’s disease, however “inadvertent exposure” may not be recognized as a valid claim.
Paraquat Lawsuit History
The link between Paraquat and Parkinson’s Disease has been known to manufacturers for years, but never publicly disclosed
The first Paraquat Parkinson’s disease Paraquat lawsuit was filed in Missouri in 2017 against Syngenta, the Swiss-headquartered, Chinese-owned agrochemical company that now makes the drug, and Growmark (another company that makes Paraquat products).
The plaintiffs were farm owners and agricultural laborers who either applied Paraquat or worked on farms where Paraquat was used and later developed Parkinson’s Disease.
One million Americans have Parkinson’s disease, depending on the percentage of links to Paraquat use will determine the docket size. Given the severity of Parkinson’s disease and how the science is presented, this has the potential to be a significant MDL.
Comparatives for paraquat cases in which Parkinson’s disease was the plaintiff’s primary injury.
Parkinson’s is not a common injury in personal injury claims. Because Parkinson’s is such an uncommon injury in tort cases, we can look at settlements cases filed involving for tardive dyskinesia, a condition that is similar to Parkinson’s.
- Tamaraz v Lincoln Electric (Ohio 2007) $20,500,000 Verdict: this was a welding rod product liability case in which the plaintiff alleged that he developed Parkinson’s disease from exposure to manganese in welding rods. Jury awarded $17.5 million to him and another $3 million to his wife. This was the only welding rod case that ended in a verdict for the plaintiff.
- Axe v Spring Meadows (Pennsylvania 2018) $215,000 Settlement: Plaintiff was 73 and alleged that he developed tardive dyskinesia from medications given to him by a nursing home. Settlement value of this case was low because the plaintiff was older.
- Plaintiff v Defendant (New York 2017) $1,400,000 Settlement: Plaintiff (mid-30s) develops tardive dyskinesia from antipsychotic medication used to treat her bi-polar and sues doctor who prescribed it.
- Soref v Agresti (Florida 2017) $569,000 Verdict: female in her mid-20s with history of drug abuse claims bi-polar drugs cause her to develop tardive dyskinesia.
Multidistrict Litigation PARAQUAT PRODUCTS LIABILITY LITIGATION Case No. 3:21-md-3004-njr
Judge Nancy Rosenstengel US District Court Southern District Illinois,
PARAQUAT PRODUCTS LIABILITY LITIGATION
Case No. 3:21-md-3004-njr Chief Judge Nancy Rosenstengel
The 2 critical orders are regarding Common Benefit Fund designations (assessment amount to be determined “up to 12%” of gross recovery fees):
|Order No. 9 – Establishment of Common Benefit Fee and Expense Fund
|Order No. 9 – Exhibit A Common Benefit Participation Agreement
Recent relevant orders through February 14, 2022
|Order Granting in Part and Denying in Part Defendant’s Motion to Dismiss
|Order Directing Defendants to Produce Transcripts of Corporate Witness Depositions
|Order Adopting Special Master’s Report and Recommendations Regarding CMO No. 7
|Exhibit 1: Plaintiff’s Fact Sheet (PFS)
|Exhibit 2: PFS Authorizations
|Order Identifying Early Trial Selection Cases
|Order No. 13 – Regarding Rule 502(d) and Privileged Materials
|Order Adopting Special Master’s Report and Recommendations Regarding CMO No. 12
|Order No. 12 – Protocol for the Selection of Trial Cases
Useful Court Links:
Lead Counsel and Plaintiffs’ Executive Committee
Minutes of Proceedings
New Case Filing Instructions
Upcoming Court Proceedings
Prior relevant orders of note
[October 1, 2021 Update] Despite calls to ban Paraquat in the U.S., in July the EPA re-approved the controversial herbicide for use by licensed farmers. In September 2021, public interest groups filed a petition in the 9th Circuit Court of Appeals seeking to overturn the EPA’s decision, seeking to ban Paraquat in the U.S.
[August 19, 2021 Update] USDC SD Illinois Chief Judge Nancy Rosenstengel held an initial case management conference, outlining a schedule that will set the docket timeline through trials, with the first bellwether trial set for November 2022.
[July 14, 2021 Update] Case Management Order, designating Randi S. Ellis as the MDL special master, to set a schedule for motions and discovery, establishing discovery protocols, a plaintiffs’ database and selecting plaintiffs’ claims for trial.
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