Now that the dust has somewhat settled on the $2 billion verdict against Monsanto, it is a good time to look at what this development means to your and your family.
Nationwide, the Bayer subsidiary faces roughly 13,000 Roundup lawsuits. Experts now predict that these cases may settle more quickly and on terms more favorable to the victim/plaintiffs. The verdict, which a California jury returned, is the largest jury verdict of 2019 and the eighth-biggest defective product verdict in history. One prominent attorney said that “The company has got to come to the table with a viable plan to resolve these cases, or the losses are going to mount.”
In other news, U.S. District Judge Vince Chhabria recently appointed Kenneth Feinberg as the special master in this case. Feinberg was the plan administrator for the September 11th Victims Compensation Fund. The attorney has also mediated a number of large, high-profile cases, such as the GM ignition switch case and the BP Deepwater Horizon disaster. Feinberg is expected to meet with plaintiff and defense attorneys sometime before July 4th.
Many people know that Bayer chemist Felix Hoffman invented aspirin in 1897. Many people do not know that, at roughly the same time, this company employee also invented heroin. The next year, Bayer began selling heroin in the United States, marketing it as a children’s cough suppressant. If you Google “Bayer heroin” and click Images, you can see the vials of heroin along with some promotional materials.
It’s important to note that, in 1898, there was no Food and Drug Administration or any similar entity. Furthermore, Congress had not yet outlawed heroin, cocaine, or any other dangerous drugs. Instead, it was legal to sell any drug to any person for any reason.
Times have changed.
What to Expect in a Mass Tort Action
Millions of consumers all over the world use products like Roundup. If a consumer product has a safety issue, the courts will be flooded with claims. Additionally, these claims are usually highly technical in nature. Not all courts have the staff resources to deal with such claims.
To help streamline these cases through the system more smoothly, most mass tort cases go to Multidistrict Litigation forums. These designated courts are for claims which are not similar enough to be class actions yet have enough in common to be consolidated, at least for pretrial purposes. There is usually a special master in charge, like Kenneth Feinberg, who has a lot of expertise in a certain area.
The MDL court handles all pretrial matters, like discovery and mediation. If the case does not settle, it usually goes back to its home jurisdiction for trial.
Typically, the MDL judge quickly schedules a few bellwether trials. These trials basically gauge which way the wind is blowing. Based on their outcome, the defendants and plaintiffs often are able to reach a settlement agreement. For example, in 2014, Boehringer Ingelheim paid $650 million to settle about 4,000 Pradaxa MDL claims.
So, if you have a Roundup or other mass tort claim, the case may be transferred to an out-of-state MDL. Our lawyers have the nationwide resources needed to continue handling the claim.
Your Claim for Damages
To prove environmental cancer claims in court, victims/plaintiffs have a number of tools. For example, cancer spikes are often quite compelling. Such spikes are especially useful in situations like PFOA water poisoning claims.
Expert testimony is crucial as well. In fact, many jurisdictions do not allow the case to move forward unless the victim/plaintiff has an expert. Each state evaluates expert testimony a bit differently. Some are rather lenient, and others are rather draconian. Texas is somewhere in the middle. The Texas Supreme Court has embraced a six-part test that’s loosely based on the U.S. Supreme Court’s landmark Daubert v. Merrell Dow Pharmaceuticals case. The elements are:
- Any tests which support the expert’s opinion,
- If the expert’s theory has appeared in a peer-reviewed publication,
- The potential error rate,
- General acceptance by the scientific community,
- The extent to which the technique relies on the expert’s subjective data interpretation, and
- Any non-judicial uses that the technique has.
If the expert’s testimony does not pass all six tests, the judge will not allow the expert to testify before the jury.
The chemical company has highly-qualified experts as well. In Roundup cases, Monsanto experts sometimes boast, off the record, that a glass of glyphosate is safer than a glass of water. Rather unsurprisingly, no Monsanto expert has ever been willing to take that challenge.
The jury must decide which side has the more credible experts.