Originally published by Beyond Pesticides

(Beyond Pesticides, November 30, 2021) The chronicle of developments in the glyphosate saga has just grown longer: the California Supreme Court has rejected a request by Bayer AG for review of the August 2021 First District Court of Appeal (San Francisco) ruling, for the plaintiffs, that Monsanto knowingly marketed a product — Roundup — whose active ingredient (glyphosate) could be dangerous. The $87 million in damages awarded to the plaintiffs in the litigation, Alberta and Alva Pilliod, has thus survived Bayer’s challenge. This highest state court decision racks up another loss for Bayer (which now owns the Monsanto “Roundup” brand) — despite its dogged insistence, throughout multiple lawsuits (with many more still in the pipeline), that glyphosate is safe. Beyond Pesticides has covered the glyphosate saga extensively; see its litigation archives for multiple articles on glyphosate lawsuits.

Glyphosate has been the subject of a great deal of public, advocacy, and regulatory attention, as well as the target of thousands of lawsuits — particularly since the 2015 declaration by the IARC (International Agency for Research on Cancer) that the compound is a likely human carcinogen. In June 2020, facing approximately 125,000 suits for Roundup’s role in cancer outcomes, Bayer announced a $10 billion settlement to resolve roughly 75% of current and potential future litigation; claimants who signed on to the settlement were to receive compensation and were not to pursue any additional legal action.

That said, roughly 30,000 complainants ultimately did not sign on to the settlement, so the queue of potential lawsuits is still potentially enormous. Seeing the writing on the wall, Bayer tried for a second settlement (of roughly $2 billion) to handle any future claims, but in 2021, a U.S. District Court judge (for the Northern District of California) rejected Bayer’s settlement proposal, saying that it was inadequate for future victims diagnosed with cancer after using the herbicide.

Still, Bayer has never acknowledged any harm caused by glyphosate. Indeed, the company responded to the California Supreme Court’s decision with this: “We continue to stand strongly behind the safety of Roundup, a position supported by assessments of expert regulators worldwide as well as the overwhelming weight of four decades of extensive science.” Fast forward to late July 2021, when Bayer announced its plan to end sales of its glyphosate-based herbicides (including its flagship product, Roundup) in the domestic U.S. residential lawn and garden market in 2023.

At the same time, it also announced its allocation of $4.5 billion to meet potential long-term “exposure” (i.e., financial liability resulting from lawsuits) through litigation brought by people who would suffer harms in the future. Bayer noted that, in lieu of glyphosate for its residential lawn and garden market products, it plans to change to herbicide formulations that “rely on alternative active ingredients” in order to “manage litigation risk and not because of any safety concerns.”

Lest the announcement generate too much excitement (welcome as the move is), Beyond Pesticides noted that: (1) this still leaves Roundup on the market for agricultural food production — where glyphosate gets the heaviest use — and particularly, for use with genetically engineered crops; and (2) what will replace glyphosate in the company’s herbicide formulations is not yet clear, but the residential herbicide market will likely shift to other toxic weed killers to replace glyphosate uses. There is an opportunity, and compelling reason, for members of the public to change their lawn and garden purchasing practices, and for and communities to transition to organic land management practices, which are not dependent on the application of toxic compounds. (See Beyond Pesticides’ Health Effects of 30 Most Commonly Used Pesticides.)

The Pilliods brought suit against the company in 2019 after both developed non-Hodgkin lymphoma (NHL), claiming that their exposures to the Roundup herbicide over decades of use on their properties were responsible. Theirs was the third prominent Roundup “cancer” case to go to trial and result in big wins for plaintiffs. The award in the Pilliod’s case was originally $2.055 billion; the judge later reduced the verdict to $86.7 million on the basis that “the ratios of punitive to compensatory damages as awarded by the jury (27 to 1 for Alberta and 54 to 1 for Alva) were unconstitutionally large.” The judge in the case wrote that Monsanto had demonstrated a “willful and conscious disregard of the rights or safety of others.”

The law firm that represented the Pilliods (Baum Hedlund Aristei & Goldman) noted, in a press release on the California Supreme Court’s ruling rejecting Bayer’s request for review, that the couple had their case expedited to trial due to their advanced ages and cancer diagnoses. Brent Wisner, co-lead attorney in the case, commented: “This is not even remotely surprising. It’s not clear how many times Monsanto needs to lose before it stops making frivolous appeals. The Pilliod verdict was based on solid science and unanimous law. They need to stop using the appeals process to deny paying this family its judgment.”

Mr. Wisner has served on the trial teams for all three of the initial, high-profile Monsanto trials:
• that of Dewayne Johnson, who developed NHL through his groundskeeping work and was awarded a staggering $289 million by the jury in his 2018 lawsuit ($39 million in compensatory damages and $250 million in punitive damages, later reduced by the judge to $39 million for each, for a total of $78 million)

  • that of Edwin Hardeman, who also developed NHL following decades of Roundup use on his 56-acre property, and in 2019 was awarded $80 ($5 million in compensatory damages and $75 million in punitive damages)
  • that of Alberta and Alva Pilliod

With that deep experience with litigation on glyphosate and with Bayer/Monsanto, Mr. Wisner has said: “Monsanto’s history is one full of vast lies. They mislead people, promise that their products are safe and make a lot of money by doing so. And when things get uncomfortable, they simply move on to another product. This strategy has proven successful for over 100 years.”

A fellow attorney at the firm, Pedram Esfandiary, said in an interview with Beyond Pesticides’ Daily News that Bayer’s expected withdrawal of glyphosate from the residential uses market is a step in the right direction, but added that the company should also discontinue its use in agriculture, where glyphosate use is a huge issue (as Beyond Pesticides has covered). Mr. Esfandiary said that staff at the firm had spoken with many agriculture workers, as well as with representatives from the United Farm Workers, about glyphosate’s impacts on both farmworker health and the environment in central California. He noted that part of the problem in securing justice for agricultural workers is that some of those most directly and severely impacted are undocumented and, therefore, quite reluctant to come forward.

“We are glad for the settlement in this case,” Mr. Esfandiary said, “but Bayer’s takeaway from this should be a moral reckoning for the damage its products are causing.” He said that, rather than focus solely on shareholder satisfaction, the company should have more regard for its impacts on global health and the environment. That, Beyond Pesticides concurs, would be a lasting win.

Sources: https://apnews.com/article/business-lifestyle-environment-and-nature-california-san-francisco-b0ef61238f5e83778fb12e748bc97593 and author communication with Attorney Pedram Esfandiary