April 23, 2021 - Los Angeles, California - - Bloomberg and other media outlets broke a story this week reporting that Monsanto (Bayer AG) is attempting to buy favorable appellate law by paying a plaintiff to appeal a decision the company already won. According to three law firms, including Baum Hedlund, representing thousands of clients in the Roundup cancer litigation, Monsanto’s “pay-to-appeal scheme” threatens to derail thousands of pending cases alleging the company’s Roundup weed killer causes cancer.
Plaintiff John Carson of Georgia filed suit against Monsanto in 2017. Unlike other cases alleging Roundup caused plaintiffs to develop non-Hodgkin’s lymphoma, Carson’s lawsuit alleges Roundup caused his malignant fibrous histiocytoma. Monsanto responded to Carson’s lawsuit by asking U.S. District Judge R. Stan Baker to toss the case. While Judge Baker allowed Carson’s case to move forward on the premise that Bayer was negligent and Roundup is defective by design, Monsanto won on a critical issue: whether the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempts state law claims alleging that Monsanto failed to warn that Roundup causes cancer.
After winning preemption, Monsanto insisted that Carson appeal the issue to the Eleventh Circuit Court of Appeals and paid him to do so. The deal, however, requires Mr. Carson to pay a nearly $100,000 penalty if he decides that it is in his best interest to drop his appeal. Monsanto is not only paying Carson to appeal a decision the company already prevailed on; the company is also threatening Carson if he does not follow through.
On top of that, the agreement limits the claims being appealed to only failure to warn, effectively allowing Monsanto to dictate Carson’s litigation strategy. Even if Carson is successful in the Eleventh Circuit, his claims are likely doomed to fail at the district court level because they are limited and because there is no scientific evidence to support Roundup having caused his malignant fibrous histiocytoma. Nevertheless, Carson filed a notice of appeal on the issue as prescribed by Monsanto in March, which triggered his first payment under the “settlement agreement” between the parties.
Monsanto hopes the paid-for appeal will create a circuit split, which opens the door for the Supreme Court to weigh in on the issue. If the company wins preemption and wins at the Supreme Court, the victories could doom the many thousands of cases still pending.
On Thursday, Baum, Hedlund, Aristei & Goldman, Moore Law Group, and Andrus Wagstaff filed a letter before the Eleventh Circuit in Carson v. Monsanto Co., No. 21-10994 (11th Cir.) alerting the Court that the appeal was being litigated in bad faith and should be dismissed with prejudice. The three firms earned verdicts in three trials against Monsanto worth more than $2.4 billion, which paved the way for a $10.9 billion settlement, one of the largest in recent history.
According to the letter, the appeal should be dismissed because “any other result would set a dangerous precedent of appellate review being “for sale” to deep-pocketed litigants…Not doing so here, risks turning the justice system on its head by allowing deep-pocketed parties to attempt to broaden the scope of favorable rulings they receive by coercing their adversaries to appeal. This Court’s decisions should not be for sale.”
In a joint statement, attorneys R. Brent Wisner of Baum Hedlund, Jennifer A. Moore of Moore Law Group, and David J. Wool of Andrus Wagstaff said the following of the Carson case:
“We proved at the Roundup trials that Monsanto tried to manipulate the science and lied about how Roundup causes cancer for decades. Now Bayer and Monsanto are trying to manipulate the judiciary and buy appellate review. Such action must be stopped, and that is why we felt compelled to inform the Court of what is really going on in the Carson appeal.”
Below are links to the documents submitted to the Eleventh Circuit this week: