Brion Doyle (left) and Adam Brody of Varnum are representing clients in suits against the agricultural pesticide and genetic-engineering giant Monsanto, now owned by Bayer, regarding health damage done by the pesticide Roundup.
by Cynthia Price
Legal News
“One of our clients is a long-time farmer who was diagnosed at a young age with non-Hodgkin lymphoma and it just really changed the trajectory of his life. He lost his farm through all of the medical procedures at hospitals in and out of the state. He just hasn’t been the same since,” says Varnum attorney Brion Doyle about one of several people he and colleague Adam Brody are representing in lawsuits against the Monsanto Company.
The client, Joe Bruinsma, now in his mid-fifties, had handled the glyphosate-based pesticide Roundup since he worked on his family’s farm as a young man. His treatment involved getting a very dangerous bone marrow transplant, and he was in a coma for months and bedridden for years. Doyle and Brody filed the suit against the former Monsanto – which was purchased by the German company Bayer in 2018 and its name actually eliminated thereafter – on Bruinsma’s behalf earlier this year.
This follows three recent high-profile cases in California where juries awarded multi-million dollar verdicts to the plaintiffs, both on the basis that Roundup caused their debilitating diseases, and on the evidence that Monsanto knew about and suppressed or covered up research on glyphosate’s cancer-causing properties.
The first award, in August 2018, was $289 million, though it has been reduced on appeal to $78 million, and the second, in March 2019, was $80 million. Then in May of this year, Alva and Alberta Pilliod were awarded a whopping $2 billion in punitive damages plus $55 million in compensatory damages.
“The jury saw the evidence and wanted to give a message to Monsanto, to say, ‘We don’t like what you’re doing here,’” said Brody, though he and Doyle agree that the award is very likely to be reduced.
Interestingly, the case and others brought by Varnum against Monsanto will be consolidated as part of multi-district litigation (MDL) that involves over 10,000 cases nationwide. (Estimates earlier this year ranged from 11,000 to 13,000 but that may increase, or possibly even decrease.)
Whether cases qualify for MDL is determined by a special body within the federal court system, established by Congress in 1968, called the Judicial Panel on Multidistrict Litigation. The members of the panel are appointed by the Chief Justice of the Supreme Court of the United States, currently John Roberts, from the roster of all federal judges (district court and appeals courts). The members number no more than seven, who must be from different judicial circuits.
The panel also determines to which U.S. District Court the cases will be transferred – in this case the San Francisco federal court.
To qualify for an MDL, which is designed to cut back on the huge number of lawsuits going through the federal courts, the cases must be determined to involve one or more common questions of fact. The panel considers more requests for MDL than are granted: as of the end of last year, the panel had centralized 1,722 dockets but turned down 1,131.
As Doyle and Brody explain, the MDL covers only pretrial proceedings and discovery. “Depending on how it goes, each case could potentially go to trial on its own. They’re consolidated for pretrial only, but if they don’t settle or get dismissed, they come back to Michigan federal court and there will be specific discovery and we’ll try the cases individually,” says Doyle.
“And it’s still up to the client if they want to accept any possible settlement. If not, same thing, we take it to trial.”
As of now, the San Francisco judge has ordered the case into mediation.
“We’re monitoring how the multidistrict case is going,” says Brody. “We certainly think there’s a lot of pressure on Monsanto to settle.”
Adds Doyle, “What’s interesting is that the federal trial was bifurcated, so that only if the plaintiffs established causation would it move forward. Given that the trial was set up so favorably for Monsanto, a lot of analysts think that there’s a tremendous amount of settlement pressure on them.”
The evidence has been mounting over the years that glyphosate does indeed cause cancer, and in particular there is a strong link to non-Hodgkin lymphoma.
An early 2019 meta-analysis called “Exposure to Glyphosate-Based Herbicides and Risk for Non-Hodgkin Lymphoma,” looked at a variety of studies and concluded that there was a 41% increased risk.
This followed on the heels of the findings of a committee of the International Agency for Research on Cancer of the World Health Organization, which reported that glyphosate is probably carcinogenic, and scientists calling for re-evaluation of glyphosate risks since many of the original studies are over 30 years old.
It should be noted that in addition to manufacturing Roundup, Monsanto began introducing Roundup-resistant genetically modified seeds for major crops, which may have encouraged farmers to apply the pesticide liberally.
Since the Varnum attorneys had filed their first case in early 2016 – the only Michigan law firm to sue Monsanto on this matter – they were watching the “bellwether” proceedings closely. “There was a lot of concern in the plaintiffs bar that the way the trial was set up was going to change the outcome. The judge required that before the jury could hear anything about damages, which is sort of the emotional side, they were first required to prove causation. So the jury deciding the way it did just looking at the objective evidence, that was thought to be a real coup,” Doyle says.
Brody and Doyle often work together on cases, along with other members of Varnum’s Litigation and Trial Practice Team. Brody, who says he “worked in the mail room” when he first started at Varnum, received his undergrad degree from Grand Valley State University, and his J.D. from Washington and Lee University School of Law, has spent his entire career at the firm. He currently focuses on complex commercial contract disputes, but he joins Doyle in saying that the fact both of them have experience on either side of the bar is beneficial for clients.
Doyle, who also does Alternative Dispute Resolution, has also been at Varnum for his entire working life, after receiving degrees from Albion College and then Wayne State University Law 0School.
The late father of one of their Varnum colleagues, Kim Clarke, was diagnosed with non-Hodgkin lymphoma in 2013 after long-term use of Roundup on the family farm.
It is important to note, however, that farmers are not the only people who may have contracted the disease. In fact, the initial large verdict went to a groundskeeper, and landscapers or even property owners may have a case.
The attorneys emphasize that there is some urgency for people who think they may have claims to get cases in the MDL. “People may have seen those big jury awards but won’t necessarily make the connection. There is a time factor [with the MDL], even outside of the statute of limitations,” says Brody.
People can get in touch with Brody at ajbrody@varnumlaw.com or Doyle at bbdoyle@varnumlaw.com.
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