Quantcast
Connect with us

Jury finding upends Bayer’s Roundup defense strategy: experts

Published

on

Bayer’s AG had hoped a new trial strategy focusing jurors on scientific evidence could stem a burgeoning tide of U.S. lawsuits over its glyphosate-based weed killer Roundup, but a second jury finding on Tuesday that the product caused cancer has narrowed the company’s options, some legal experts said.

Bayer shares tumbled more than 12 percent on Wednesday after a unanimous jury in San Francisco federal court found Roundup to be a “substantial factor” in causing California resident Edwin Hardeman’s non-Hodgkin’s lymphoma.

The jury decision was a blow to Bayer after the judge in the Hardeman case, at the company’s request, had split the trial, severely limiting evidence plaintiffs could present in the first phase. Tuesday’s defeat on terms considered advantageous to Bayer sets up the second phase to be even tougher and limits the grounds on which the company could appeal any final verdict, the experts said.

“The fact that Bayer lost this trial despite it being set up in the most favorable way for them is a huge setback,” said Thomas Rohback, a Connecticut-based defense lawyer.

Bayer in a statement on Tuesday said it stood behind the safety of Roundup and was confident the evidence in the second trial phase would show that Monsanto’s conduct was appropriate and the company not liable for Hardeman’s cancer.

ADVERTISEMENT

The company, which bought Monsanto last year, on Wednesday declined to comment beyond that statement.

Tuesday’s finding did not address liability, which will be determined following the second trial phase that began on Wednesday.

Bayer denies glyphosate or Roundup cause cancer. The German company faces more than 11,200 lawsuits over the popular weed killer. Last August, following the first Roundup trial, a California state court jury issued a $289 million verdict against the company.

ADVERTISEMENT

Two weeks after that verdict, which was later reduced to $78 million and is being appealed, Bayer Chief Executive Werner Baumann reassured analysts that the company had a new legal strategy based on focusing jurors on the scientific evidence.

“Bayer and the joint litigation team are working to ensure that, going forward, this overwhelming science will get the full consideration it deserves,” Baumann said in an Aug. 23 conference call.

A LOT AT STAKE
There is a lot at stake for Bayer, which acquired Roundup maker Monsanto last year for $63 billion. Though Bayer does not break out sales figures for Roundup, glyphosate is the world’s most widely used weed killer, and Roundup is the leading brand.

ADVERTISEMENT

Bayer’s new strategy was focused on keeping out plaintiffs’ allegations that the company improperly influenced scientists, regulators and the public about the safety of Roundup. Bayer has denied it acted inappropriately and said in public statements following the August verdict that it thought the jury was inflamed by the claims of corporate misconduct.

Vince Chhabria, the San Francisco federal judge overseeing the Hardeman case, agreed with the company’s argument that such evidence was a “distraction” from the scientific question of whether glyphosate causes cancer. He agreed to split the trial in a January order.

Had Bayer had won the first phase, there would have been no second phase looking at company liability. Now that it has lost, almost all of the previously excluded evidence can be presented to the jury.

ADVERTISEMENT

Plaintiffs’ lawyers hit Bayer with those allegations in their opening statements for the second phase on Wednesday. Aimee Wagstaff, one of Hardeman’s lawyers, said Monsanto influenced the science around Roundup through its “cozy” relationship with regulators.

Bayer could convince the jury in the second phase that, despite their finding that Roundup played a substantial role in Hardeman’s cancer, the company was not liable. Experts said that was unlikely.

“They could present evidence of how careful they were in developing Roundup, but that’s an uphill battle given that the scientific evidence was their strongest argument,” said Alexandra Lahav, a law professor at the University of Connecticut.

ADVERTISEMENT

A lawyer for Bayer on Wednesday argued that Bayer could not be held liable because the U.S. Environmental Protection Agency, as well as other regulators worldwide, approved Roundup without a cancer warning.

If the Hardeman trial had not been split and a final verdict went against Bayer, the company might have been able to appeal any damages award to the U.S. 9th Circuit Court of Appeals by claiming the jury had been improperly swayed by inflammatory evidence, said Lori Jarvis, a Virginia-based mass tort defense lawyer. That argument will now be difficult to make.

“It would not be surprising at all for the 9th Circuit to uphold what the jury did in this case, particularly given the great effort Chhabria put into creating a level playing field for Monsanto,” Jarvis said.

ADVERTISEMENT

Some lawyers said Bayer could still argue on appeal that plaintiffs’ experts and their scientific evidence were insufficient and statistically invalid and should not have been admitted at trial. But they noted the 9th Circuit, which oversees the San Francisco federal court, has generally been permissive in allowing expert testimony.

However, experts said it was probably too soon to write off Bayer’s legal strategy, noting future Roundup cases could result in different outcomes.

“It’s a relatively early phase in this litigation as a whole and we just need to see more trials to understand Bayer’s liability,” said Adam Zimmerman, a law professor at Los Angeles-based Loyola Law School.

ADVERTISEMENT

Reporting by Tina Bellon; Editing by Anthony Lin and Bill Berkrot


Report typos and corrections to [email protected].
READ COMMENTS - JOIN THE DISCUSSION
Continue Reading

Facebook

Republican analyst says Trump is ‘threatened by’ being challenged by women: ‘It hurts his ego’

Published

on

According to one Republican commentator, President Donald Trump's decision to lash out at four Congresswomen of color stems from his inability to handle being challenged by women.

In a segment with MSNBC host Ali Velshi, Rina Shah, who runs Republican Women for Progress, said that she's been the target of racist attacks from Trump supporters ever since she announced she wouldn't support him.

"I believe that what this president is doing is fanning the flames," she said. "He cannot denounce white supremacy, white nationalism. This is a moment in which he could have kept his mouth shut. You know, this tit-for-tat with [Speaker Nancy] Pelosi (D-CA) and 'The Squad,' he didn’t need to engage in it. If I was advising the president, if I were one of his advisers, I would have said stay out of it. But he doesn't listen to anyone around him."

Continue Reading

Facebook

Mitt Romney blames democratic women for Trump’s racism: Their views ‘are not consistent with my experience’

Published

on

Little more than six months ago Senator-elect Mitt Romney (R-UT) promised voters he would "speak out" against President Donald Trump's racism. On Monday, Senator Mitt Romney blamed the targets of President Donald Trump's two-day racism fest for the President's own racism.

"I will speak out against significant statements or actions," by President Trump, "that are divisive, racist, sexist, anti-immigrant, dishonest or destructive to democratic institutions," Romney said in a New Year's Day 2019 Washington Post op-ed.

Continue Reading
 

Facebook

Facebook needs ‘very high standard’ for Libra coin: Mnuchin

Published

on

Facebook will need to meet "a very high standard" before it moves ahead with its planned digital currency Libra, US Treasury Secretary Steven Mnuchin said Monday.

Mnuchin said US regulators have already expressed concerns to Facebook about the plan for a global cryptocurrency, noting that these kinds of virtual coins have in the past been associated with money laundering and illicit activities.

"Whether they're banks or non-banks, they're under the same regulatory environment," Mnuchin told reporters at the White House, adding that Facebook "will have to have a very high standard before they have access to the financial system."

Continue Reading
 
 
 

Copyright © 2019 Raw Story Media, Inc. PO Box 21050, Washington, D.C. 20009 | Masthead | Privacy Policy | For corrections or concerns, please email [email protected]

close-image