PHILADELPHIA - Lawyers looking for jackpots in Philadelphia want information from a new group led by Bayer AG that advocates for the continued use of the herbicide glyphosate in weedkiller's like Roundup.
Bayer bought Roundup-maker Monsanto in 2018 and has endured wildly varying jury verdicts in the thousands of lawsuits alleging glyphosate causes non-Hodgkins lymphoma. In the Philadelphia Court of Common Pleas, plaintiffs have scored verdicts of $78 million, $175 million and $2.25 billion, but other juries ruled for the defendants.
There are currently 67,000 Roundup cases pending in the country and Monsanto has paid $11 billion to settle 100,000 others. There are more than 400 pending in Philadelphia.
New to that litigation is a subpoena from plaintiff lawyers to the Modern Ag Alliance, to which Monsanto has objected. Plaintiff lawyers have asked for documents, communications, emails and other correspondence with Monsanto and Bayer, plus documents on advertising and lobbying efforts.
"(T)he documents and information sought in the Modern Ag Alliance Subpoena are not relevant and are not reasonably calculated to lead to the discovery of admissible evidence because these cases are pending in Philadelphia County, Pennsylvania," Monsanto's lawyers wrote March 11.
"Monsanto's understanding is the Modern Ag Alliance does not have any activity in Pennsylvania."
Dozens joined Modern Ag last year when it was created with the intention of working with the agricultural industry and policymakers. "Control weeds, not farming," its website says.
Executive director Elizabeth Burns-Thompson said the industry needs direction from regulators, not "jackpot justice" lawsuits.
"(C)onfusion over state and federal in product labeling has opened the door to relentless, often meritless lawsuits," she wrote.
"If these legal challenges succeed, farmers could lose access to essential crop protection inputs like glyphosate, forcing them to adopt more expensive and less effective alternatives."
The group is supporting bills in North Dakota, Iowa and Missouri. California's demand Roundup come with a cancer warning under its Prop 65 was rejected two years ago by the U.S. Court of Appeals for the Ninth Circuit as unconstitutional.
California Attorney General Rob Bonta sought to enforce the warning under Proposition 65, a law that requires companies to place labels on anything the state “knows to cause cancer.”
The problem is, there is no scientific consensus glyphosate causes cancer in humans under real-world scenarios, the Ninth Circuit said.
While the International Agency for Research on Cancer (IARC) has declared glyphosate “probably carcinogenic,” the vast majority of regulators including the U.S. Environmental Protection Agency disagree.
Monsanto says the Philadelphia lawyers didn't follow rules requiring the issuance of the Modern Ag subpoena. Notice of intent to serve it came to Monsanto's counsel on Feb. 19, and a similar notice to Modern Ag on Feb. 26.
"Given this premature service, Plaintiffs failed to allow Monsanto sufficient time to file its objections," Monsanto said, pointing to a 20-day requirement.
Tobi Millrood of Kline & Specter once Judge Joshua Roberts to enforce the subpoena, writing March 17 that the timing error can be easily corrected and that Monsanto failed to back its claims nothing of use would come from it.
"Bayer/Monsanto's communications with a coalition aimed at preserving access to glyphosate are likely to show Bayer/Monsanto's knowledge of risk associated with glyphosate..." Millrood wrote.
He also thinks he will discover attempts to influence the publication of studies and to influence regulatory agencies.
"Through these discovery requests, Plaintiffs seek to uncover the full extent of Monsanto's internal knowledge, its influence over regulators and lawmakers, and the strategies it has deployed to evade accountability for the health impacts of its glyphosate-based herbicides," Millrood wrote.
In response, Monsanto said Modern Ag does not attempt to influence regulatory agencies, only to collaborate with them.
"Whether Monsanto engaged in constitutionally protected lobbying (through the Modern Ag Alliance, an organization created by a non-party) in the present day does nothing to help establish Plaintiffs' claims that are premised on their past use of Roundup," the company said.