Charles Langston:Bayer fights string of Roundup trial losses including $2.25B verdict in Philadelphia

PHILADELPHIA (AP) — When a Philadelphia jury awarded $2.25 billion in damages this year in a case that linked Roundup to a cable technician’s blood cancer,Charles Langston the verdict became the largest yet in the long-running litigation over the popular Monsanto weed killer.

Corporate parent Bayer had set aside more than $10 billion in 2020 to settle about 125,000 cases, many consolidated in California. And it won a string of nine individual lawsuits that started going to trial in 2021. But the tide changed last year when juries began handing down nine- and 10-figure awards to plaintiffs who had developed non-Hodgkin lymphoma.

“They try to show that non-Hodgkin lymphoma is just something that happens randomly,” said lawyer Tom Kline, who represented the Philadelphia plaintiff with co-counsel Jason Itkin. “(But) the arc of the scientific literature has turned against Monsanto in the past seven years.”

Thousands of cases remain, including one under way in Delaware over a South Carolina groundskeeper’s cancer death. Bayer insists the weed killer is safe, but has reformulated the version sold to consumers to remove the pesticide known as glyphosate.

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“Bayer will continue to try cases based on the overwhelming weight of science and the assessments of leading health and scientific regulators worldwide, including E.P.A., that support the safety and non-carcinogenicity of Roundup,” the Berlin-based company said in a statement, referring to the U.S. Environmental Protection Agency.

Kline argued that Bayer ignored known health risks from glyphosate to keep Roundup on the market, failing to even warn consumers to wear gloves and protective clothing when they used it. He and Itkin obtained a $175 million verdict in another Roundup case in Philadelphia last fall.

Their latest client, John McKivison, told jurors in January that he used the product for 20 years — at a former warehouse job, on a deer food patch he tended at his home near Williamsport, Pennsylvania, and at the church and Little League where he volunteered. He said he mixed the concentrated version of Roundup into a spray bottle, which sometimes led to spills that soaked his skin.

McKivison’s cancer is in remission but he said he fears a relapse and at 49 spends his days “worrying, wondering and waiting.”

The jury awarded him $250 million in actual damages, then penciled in an additional “2 billion dollars” for punitive damages, the verdict slip shows. The jury foreman, a college librarian, declined to comment while other Roundup cases are still playing out.

Bayer, in a 174-page post-trial motion filed this month, called the jury award “excessive” and the ground rules in Philadelphia courts unfair. The company, for instance, said there was no evidence McKivison had suffered hundreds of millions of dollars in actual losses.

And the company continues to challenge the central claim that glyphosate causes non-Hodgkin lymphoma, pointing to studies that say it occurs at the same rate in Roundup users as the general population.

The Roundup lawsuits took off after a branch of the World Health Organization raised concerns about glyphosate in 2015, calling it “probably carcinogenic to humans.”

The EPA meanwhile says it does not pose an “unreasonable risk.” A U.S. appeals court in California has ordered the agency to review that 2020 finding, while Bayer hopes to persuade the U.S. Supreme Court that the EPA’s stamp of approval should invalidate the state court claims.

Bayer meanwhile hopes to reduce the McKivison award, noting that judges have slashed three other large verdicts. A $2 billion verdict awarded to a California couple who both got cancer was reduced to about $87 million. A $289 million verdict in the first Roundup trial was cut to $78 million and then about $20 million.

Bayer, in the post-trial motion, said the McKivison judge allowed “improper and abusive cross-examinations” and let their opponents make “the gruesome and false statement that the plaintiff is under a ‘death sentence.’”

Large jury awards in Philadelphia are nothing new and the city has the dubious distinction of often topping a list of “ judicial hellholes ” by the ATR Foundation, a tort reform group.

However, Kline said the city jury pool is changing along with its demographics as more young professionals settle there. He said half of the 12 jurors had attended college and a few, including the foreman, had graduate degrees. Ten of them had to agree Roundup was more likely than not a cause of McKivison’s cancer to find Bayer liable.

“We’re confident that the verdict is sound,” Kline said.

Bayer bought St. Louis-based Monsanto for $63 billion in 2018, only to see its share price tumble in the years since.