10-24-18

(8-28-180\

In a special telephone meeting on Thursday, August 23, Bayer AG’s CEO Werner Bauman tried to reassure the German conglomerate’s principal shareholders who were concerned about the recent drop in the company’s stock. Bayer’s stock fell dramatically after an unfavorable verdict against Bayer’s St. Louis subsidiary, Monsanto.

Bauman expressed his confidence in Monsanto and predicted a sunny future for its flagship herbicide, Roundup.

He told his top-tier investors that Bayer had performed an adequate due-diligence on Monsanto before purchasing the troubled company for $66 billion this past June. At the time of its purchase, Monsanto told its German suitors that a $270-million set-aside would cover all its outstanding liabilities arising from Monsanto’s 5,000 Roundup cancer lawsuits.

Bauman did concede to anxious shareholders that Monsanto had withheld internal papers relevant to the case. Bayer never saw those internal Monsanto documents prior to the purchase.  

The source of the brouhaha was the August 10, $289-million verdict by a San Francisco jury in favor of Dwayne “Lee” Johnson, a California public school groundskeeper who said his terminal non-Hodgkin’s lymphoma resulted from exposure to the Monsanto weedkiller. That single jury award consumed 100 percent of Monsanto’s set-aside and more.

On news of the verdict, Bayer watched its stock plummet 14 percent and forfeited $16 billion in shareholder value. Now Bayer is facing a cascade of new Roundup cases and a possible rash of shareholder lawsuits by its own investors alleging that Bayer failed to disclose its true liabilities.    

It’s no surprise that Monsanto kept secrets from Bayer. Johnson’s jury heard evidence that for four decades Monsanto maneuvered to conceal Roundup’s carcinogenicity by capturing regulatory agencies, corrupting public officials, bribing scientists and engaging in scientific fraud to delay its day of reckoning. The jury found that these activities constituted “malice, fraud and oppression” warranting $250 million in punitive damages.

I am one of several attorneys representing, collectively, now some 8,000 clients with similar cases. I attended the two-month trial and worked with the trial team led by two young and exceptionally gifted lawyers, Brent Wisner of Baum Hedlund Aristei & Goldman and Dave Dickens of The Miller Firm.  

For Bayer the worst is yet to come.

Despite Monsanto’s efforts, the science linking glyphosate—Roundup’s active ingredient—to non-Hodgkin’s lymphoma has passed the critical inflection point. European nations are moving to ban or restrict the chemical, and California regulators and courts have ordered Monsanto to warn consumers of Roundup’s carcinogenicity at all points of sale. Both federal and state courts across the country have agreed that the question can be sent to juries. Hundreds of new inquiries have flooded our offices since the Johnson verdict.

Perhaps more ominously for Bayer, Monsanto also faces cascading scientific evidence linking glyphosate to a constellation of other injuries that have become prevalent since its introduction, including obesity, depression, Alzheimer’s, ADHD, autism, multiple sclerosis, Parkinson’s, kidney disease, and inflammatory bowel disease, brain, breast and prostate cancer, miscarriage, birth defects and declining sperm counts. Strong science suggests glyphosate is the culprit in the exploding epidemics of celiac disease, colitis, gluten sensitivities, diabetes and non-alcoholic liver cancer which, for the first time, is attacking children as young as 10.

Researchers peg glyphosate as a potent endocrine disruptor, which interferes with sexual development in children. The chemical compound is certainly a chelator that removes important minerals from the body, including iron, magnesium, zinc, selenium and molybdenum. Roundup disrupts the microbiome destroying beneficial bacteria in the human gut and triggering brain inflammation and other ill effects.  

The public’s growing concerns with Roundup are, in part, due to Monsanto’s overreaching. For two decades following its licensing in 1974, farmers and gardeners used Roundup as a conventional weedkiller. After Monsanto’s introduction of Roundup Ready seeds in the 1990s, farmers began aerial spraying of the herbicide on entire fields, including newly planted corn, canola and soy genetically altered to thrive in the toxic mist that killed all neighboring weeds.

Then, around 2006, Monsanto started marketing Roundup as a desiccant to dry up oats and wheat immediately before harvest. For the first time, farmers were spraying the chemical directly on food. Roundup sales rose dramatically to 300 million pounds annually in the U.S., with farmers spraying enough to cover every tillable acre in America with a gallon of Roundup.

Glyphosate now accounts for about 50% of all herbicide use in the U.S. About 75% of glyphosate use has occurred since 2006, with the global glyphosate market projected to reach $11.74 billion by 2023.

Never in history has a chemical been used so pervasively. Glyphosate is in our air, water, plants, animals, grains, vegetables and meats. It’s in beer and wine, children’s breakfast cereal and snack bars and mother’s breast milk. It’s even in our vaccines.  

As grim as its financials now look, Monsanto’s reputational liability may be even more of an anchor for Bayer than all the lawsuits. Environmentalists complain that Roundup is exterminating at least 13 species in the U.S. alone, including North America’s iconic Monarch butterfly. Human rights advocates blame the suicides of more than 200,000 Indian farmers on the suffocating economics caused by Monsanto’s monopolistic control of international seed stocks. Government regulators are already under pressure to restrict these sorts of chemical mayhems with laws limiting glyphosate and GMOs.

Monsanto has carved out a market niche monetizing deadly chemicals that more squeamish companies shun, a strategy that has made the company the Snidely Whiplash of corporate scoundrels and the planet’s worst villain, according to many environmentalists and human rights advocates. As a boy, I watched Monsanto’s vicious campaign to pillory the dying heroine Rachel Carson over her book, “Silent Spring,” in its efforts to exonerate its pesticide DDT which was wiping out songbirds and the American bald eagle.

At the same time, Monsanto amplified its notoriety among the 1960s and 1970s generations by producing Agent Orange herbicide that devastated Vietnam and poisoned thousands of U.S. soldiers and Vietnamese peasants. In the 1990s, Monsanto was forced to recall its drug “Celebrex” which cured headaches and caused heart attacks. Nutritionists condemned Monsanto’s artificial sweetener aspartame as a “neurotoxin masquerading as a supplement.”

I spent 30 years as an environmental lawyer fighting to clean the Hudson of Monsanto’s PCBs, a contamination crisis which closed the river’s historical fisheries, put thousands of fishermen out of work and poisoned Hudson Valley residents. All these sordid ventures have tarnished Monsanto’s standing with the public in ways that could contribute to a string of punishing verdicts.

During his Thursday telephone offensive, Bauman rejected the possibility of settlement talks with the non-Hodgkin’s lymphoma plaintiff. He promised to appeal the Johnson verdict and doubled down on Monsanto’s discredited claims that Roundup is safe.

Bauman repeated three times to Bayer’s investors, “We are committed to defending glyphosate.” An escalation in troll and bot activity against Monsanto’s critics at the height of the trial signaled a full-bore Monsanto PR campaign. A Monsanto-loving troll suddenly appeared to shadow and slander Zen Honeycutt, who attended the trial. Honeycutt is a modern-day Rachel Carson. The mother of two glyphosate-injured kids, she has become one of Roundup’s most vocal and effective scourges.

These strategies are more likely to inflame future juries angered that the chemical company is not coming clean about poisoning our farms, our food and our families and to remind consumers of Bayer’s own dingy history. Bayer, after all, is not just a benign aspirin company. Formerly known as IG Farben, the company supported the rise of Adolf Hitler and made a killing by selling the Nazis Zyklon B gas to exterminate Jews at Auschwitz. The Nuremberg tribunals convicted a half-dozen IG Farben executives for slavery and mass murder. One of them, Fritz ter Meer, returned from Spandau prison in 1956 to become Bayer’s first board chairman. Today, Bayer is an agrochemical and pharmaceutical giant with its own inventory of deadly farm chemicals.

Monsanto boosters hope that San Francisco’s highly educated jury (our panel included two scientists) was an anomaly. Jurors in farm country, they argue, particularly those in Monsanto’s home court, St. Louis County, Missouri, will be less generous to local plaintiffs. Bauman told his shareholders that there is only a single scheduled case in St. Louis. Not true! Our team has a half dozen trials scheduled in St. Louis and others in Bozeman, Montana, and Oakland, California. But there is ample reason that those juries won’t be any happier with Monsanto than the jury in Johnson’s case.

After all, the California judge overseeing Johnson v. Monsanto bent over backward to exclude evidence she perceived as damaging to Monsanto. Beginning in pretrial hearings and continuing throughout the eight-week Johnson trial, San Francisco Superior Court Judge Suzanne Ramos Bolanos, a former prosecutor, consistently sided with Monsanto in her rulings on the company’s evidentiary objections.  

My colleague, Brent Wisner, estimates that 80 percent of the documents we wanted to show to the jury were not used, many because of the rulings we considered to be judicial error. We believe that our future Monsanto juries will see this evidence.

Here are some of the worst examples:

• In 2015, the World Health Organization’s International Agency for Research on Cancer (IARC) determined that glyphosate, the active ingredient in Roundup, was an animal carcinogen and a probable human carcinogen. In 2017, the California Environmental Protection Agency (EPA) followed suit, listing glyphosate as a carcinogen under Proposition 65. While Judge Bolanos allowed Monsanto’s lawyers to tell the jury that federal EPA and some European health agencies disputed the IARC findings, she blocked us from mentioning California’s decision to list glyphosate as a carcinogen, declaring that it would bias the jury. The surreal incongruity of a California state court silencing California’s own environmental agency while crediting the findings of foreign health agencies and a demonstrably corrupt federal EPA, struck us as strange. Because of the judge’s rulings, Monsanto’s attorneys were able to paint IARC as a lonely (and therefore unreliable) outlier in its conclusions on glyphosate.

• Judge Bolanos also forbade us from showing the jury evidence of Monsanto’s fraudulent scheme to win regulatory approval for Roundup. In the mid-1970’s when Monsanto first sought to license Roundup, the company hired a corrupt consultant, Industrial Bio-Test Laboratories (IBT), to conduct toxicology studies on the active ingredient, glyphosate. The EPA approved glyphosate for sale in 1974 based on IBT Labs' jiggered data. IBT Labs made little effort to conceal the fact that its science was fraudulent.

One EPA reviewer dryly observed that it was “hard to believe the scientific integrity of the studies when they said they took specimens of the uterus from male rabbits.” A subsequent EPA review found that producing falsified data for Monsanto and other corporations was IBT’s core business model. A federal jury found three IBT officials guilty of attempting to defraud the government by covering up inaccurate research data. Judge Bolanos ruled that Lee Johnson’s jury should hear no mention of the Monsanto/IBT flim-flams.  

• The next chapter of that story was particularly relevant to our case. When the EPA asked Monsanto to retest glyphosate safety in the wake of the IBT scandal, the company’s own 1983 study found a statistically significant number of benign and malignant kidney tumors in male mice exposed to high amounts of glyphosate. This study prompted EPA to classify glyphosate as a possible human carcinogen in 1985. Monsanto protested that its researchers had made errors in performing the mouse study despite anemic evidence that this was indeed the case. Under extreme political pressure from Monsanto’s allies in Ronald Reagan’s cabinet, EPA folded and withdrew the cancer classification on the condition that Monsanto re-perform the mouse test. Monsanto promised to do so, but once the EPA cancelled the cancer classification, the company reneged, refusing to test glyphosate’s carcinogenicity for 40 years. Judge Bolanos ordered that the jury should hear nothing of this important tale and allowed Monsanto to tell the jury that EPA had always believed Roundup to be non-carcinogenic.

• In one noteworthy email exchange between an academic and Daniel Goldstein, a Monsanto employee, Goldstein joked that the company has been playing “whack-a-mole” to kill or derail carcinogenicity and toxicity studies of Roundup and its associated GMOs for years. At Monsanto’s request, Judge Bolanos deemed any mention of GMOs off-limits in our case. She believed that even a mention of that hot topic would inflame the jury against Monsanto. We therefore could not show the jury Monsanto’s inculpatory “whack a mole” memo. Judge Bolanos’ ban on any reference to GMOs also allowed Monsanto to get away with its unrebutted assertion that “Roundup is great for the soil.” We couldn’t show the abundant evidence of the damage to soils and ecosystems for the Roundup-GMO combination.

• Most frustrating, Judge Bolanos forbade us from mentioning Monsanto’s “TNO dermal absorption” study, which she inexplicably deemed “irrelevant.” The “TNO Dermal Absorption” study was the company’s own critical research paper documenting how the human body absorbs far higher amounts of formulated Roundup through the skin than previously reported. Monsanto illegally kept the study secret from regulators and acknowledged in its internal communications that public knowledge of this study would “blow up Roundup’s risk evaluations.” Following that study, Monsanto recommended waterproof jackets, pants, faceplate, et cetera for its employees handling Roundup. Monsanto included none of those precautions on the warning label of the Roundup used by our client Lee Johnson.

Instead of pursuing the TNO safety study to ensure that Roundup was safe, Monsanto executive William Heydens killed the product research “because a further study was not likely to help us meet the project objective.” The “project objective” was maintaining Roundup’s market dominance. Monsanto’s choice to illegally hide the results of the TNO study from the EPA and to abandon the research were directly relevant to punitive damages, but the jury never learned about those events.

• During the trial, we showed the deposition of Monsanto’s markets supervisor Kirk Azevedo. Azevedo was an idealist who joined Monsanto after watching a speech by Monsanto CEO Robert Shapiro promising to make Monsanto a template for green technology and ethical corporate culture. When Azevedo invoked the speech during an office strategy discussion, his direct boss told Azevedo that Shapiro’s speech was PR window dressing, “We are about making money—you need to get that straight.” Strangely, Judge Bolanos decided to order us not to talk about the Azevedo testimony on summation even though she had earlier ruled it admissible.  

• Finally, Judge Bolanos gave a “curative instruction” telling the jury that Monsanto had never manufactured Agent Orange. This statement was simply not true—however, the judge deemed the instruction necessary to neutralize potential bias from statements made by dismissed jurors about Agent Orange in front of their fellow jurymen.

In his Thursday phone conference, Bauman dismissed all the evidence heard at trial about Monsanto’s reprehensible behavior, telling his investors it was “taken out of context.” Johnson’s jury heard the same lame assertions from Monsanto’s lawyers and did not agree. The next jury is likely to hear much more.

The science against Roundup continues to snowball and we anticipate that other judges will rule these and many other documents admissible in future trials. Of course we won’t consistently get quarter billion dollar verdicts but the headache for Bayer is just beginning and it will require more than aspirin to cure.

Robert F. Kennedy Jr. is a longtime environmental advocate and author of American Values: Lessons I Learned From My Family. He is co-counsel to Baum Hedlund Law, representing nearly 800 people across the nation who allege Roundup exposure caused their non-Hodgkin lymphoma. Follow him on Twitter: @RobertKennedyJr. Like him on Facebook

https://www.organicconsumers.org/blog/kennedy-monsanto-roundup-verdict-bayer-stock