October 21, 2019
With yet another trial postponed, a St. Louis, Missouri jury has yet to weigh in on allegations that the popular weed killer Roundup, made by Monsanto (now Bayer AG), causes cancer. St. Louis was the home of Monsanto for over 100 years.It is also a venue with a reputation of being plaintiff-friendly, and a sought-after location for those bringing complex litigation claims. After a hard-fought argument over proper venue, resulting in almost all of the multi-plaintiff claims being moved to St. Louis County, one plaintiff remained in the case of Winston v. Monsanto, in the Circuit Court for the City of St. Louis. The Winston action was scheduled for trial on October 15, 2019 before the Hon. Michael Mullen of the St. Louis City Circuit Court. Both parties have now sought a continuance, with the matter being adjourned to some time in 2020. This is the third such case that had been set for trial this fall in St. Louis, and the third one to be postponed. Meanwhile, there are approximately 18,000 other claims pending in state and federal courts which also allege that the use of the herbicide Roundup, and its active ingredient glyphosate, caused the user to develop cancer.
The three St. Louis cases were set to follow three plaintiff verdicts in similar cases pending in California state and federal courts. Most recently, in May 2019, married Plaintiffs Alva and Alberta Pilliod were awarded $55 million in compensatory damages and $2 billion in punitive damages (later reduced to $17 million in compensatory damages and $69 million in punitive damages) by a jury in Alameda County Superior Court in Oakland. This was the first of hundreds of similar cases organized together in the California Roundup Judicial Council Coordination Proceedings (JCCP) before Judge Winifred Smith. The Pilliods each had been diagnosed with non-Hodgkin lymphoma (NHL) after their long-term use of Roundup around their home. A jury determined the herbicide was defectively designed, as well as that Monsanto failed to adequately warn of the risk of cancer and acted negligently. Just a few months before the Pilliod verdict, in March 2019, a San Francisco district court determined the glyphosate-based herbicide was a substantial factor in the development of 70-year-old Edwin Hardeman’s development of NHL. Mr. Hardeman was awarded $5.27 million in compensatory damages and $70 million in punitive damages (later reduced by Judge Vince Chhabria to $20 million in punitives, with the compensatory damage award found to be supported by the evidence). The first case of this kind to go to trial involved a groundskeeper who alleged his extensive exposure to glyphosate in Roundup weed killer caused his NHL. A San Francisco jury agreed, determining Monsanto deliberately failed to warn consumers or regulators about the product’s risks, and awarding Mr. Dewayne Johnson $39.25 million in compensatory damages and $250 million in punitive damages (of which the punitive damages award was later reduced by San Judge Suzanne Bolanos to a ratio of 1:1, or $39.25 million).
These bellwether cases have set the stage for glyphosate litigation against Bayer AG, which had acquired St. Louis-based Monsanto only months before the first verdict.The parties have been working on a large-scale settlement with court-ordered independent mediator Ken Feinberg, known for his experience in negotiating claims involving Agent Orange exposure in Vietnam, damages from the Deepwater Horizon oil rig disaster, and the September 11th terrorist attacks. However, because Bayer still sells glyphosate-containing Roundup, generally without a warning, predicting the amount of potential future claims has been challenging. Experts value the potential liability up to $20 billion, though much remains uncertain. Bayer continues to deny allegations that its herbicide is cancer-causing and a healthy market for the German Company’s weed killer remains. While claims against it continue to mount, Bayer has announced its plan to focus its litigation efforts on the appeals of the three California cases.
In the event the parties do not reach a global resolution in 2019, courts in St. Louis City and County are set to hear several trials in early 2020, starting with the case of Wade v. Monsanto in the Circuit Court of St. Louis City on January 21, 2020. In a jurisdiction known to be a “judicial hellhole,” it will be interested to see the effect, if any, of Bayer’s potential home field advantage.
For more information on this matter, please contact MKC&I’s Mandy Williams in our St. Louis, Missouri office at mwilliams@mcgivneyandkluger.com.