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Wednesday, July 24, 2019

Bayer hires outside counsel as pressure grows following jury verdicts and continuing share loss

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By John Breslin | Jul 2, 2019


FRANKFORT, Germany (Legal Newsline) – Chemical and agri-business conglomerate Bayer has hired outside counsel and set up a committee in response to lawsuits and its falling share price in the face of thousands of claims that a key ingredient of its Roundup weed killer causes cancer.

The move follows three jury verdicts against the company, the latest awarding the plaintiffs more than $2 billion, and the fall of its share price in the face of the litigation.

In a statement, Bayer, which last year bought St. Louis-headquartered Monsanto, the makers of Roundup, stated that the outside counsel will advise the company's advisory board, according to a report by Reuters news agency.

It has hired John H. Beisner, of Skadden, Arps, Slate Meagher & Flom in Washington, D.C. He will advise the company's supervisory board "on matters related to the glyphosate litigation, including trial tactics and mediation," according to a report by Reuters.

“His appointment is intended to add fresh and independent perspectives to the advice given to the Board of Management,” the Germany-headquartered company said in a statement.

“We are convinced that with his expertise, John H. Beisner will provide very valuable and concrete advice on the ongoing litigation as well as the mediation,” Bayer’s Chairman Werner Wenning stated.

Bayer faces suits from more than 13,000 individuals claiming they contracted cancer, largely non-Hodgkins lymphoma (NHL), from their use of the weed killer.

The company has vigorously defended against the claims, arguing that the juries came to their conclusions despite scientific evidence and a statement from the Environmental Protection Agency that held there is no connection between cancer and glyphosate.

Jurors in the most-recent trial, Pilliod v. Monsanto, heard in Alameda County Superior Court in California, awarded the plaintiffs $55 million as compensation, but $2 billion in punitive damages.

This is likely to be reduced by Judge Winifred Smith, who presided over the trial. Precedent laid down by the U.S. Supreme Court essentially limits the ratio of punitive to compensatory damages to 9 to 1.

But Bayer has already filed a flurry of post-trial motions asking Smith to reverse the May verdict or order a new trial in Pilliod v. Monsanto.

Alva and Alberta Pilliod claimed that the glyphosate, the key ingredient of Roundup, was largely responsible for their NHL diagnoses, and Monsanto allegedly did not warn customers of the dangers.

Bayer states in its filings that there is no evidence to support the contention that glyphosate caused the Pilliods' cancers, the attorneys in the case delivered improper arguments, evidence was wrongly excluded and added, that separate trials should have taken place, and that the amount of punitive damages was unconstitutional.

A jury hearing the first Roundup trial in a San Francisco state court last summer found against Bayer in a suit brought by plaintiff Dewayne Johnson. The jury awarded the plaintiff $289 million, later reduced to $78 million.

In the first case heard in federal court, Hardeman v. Monsanto, Judge Vince Chhabria of the U.S. District Court of the Northern District of California signed off in May on a final judgment of $80 million against the company, which has since been appealed.

The federal case was somewhat different from those in state court as Chhabria limited the amount of information jurors could receive about internal back and forth communications within Monsanto. The first phase of the trial centered almost entirely on scientific evidence.

While Bayer, with the help of outside counsel, ponders its next moves, the next trial is due to take place in St. Louis County, Missouri, in August. Chhabria may preside over the next federal trial that same month or September. He oversees some 900 cases consolidated as multi-district litigation.

The federal judge has hired a mediator, Kenneth Feinberg, to handle talks between Bayer and attorneys for plaintiffs.

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Alameda County Superior Court Bayer Corp. Monsanto Company U.S. District Court for the Northern District of California

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