Prominent attorney who resolves tough cases has challenges in settling Monsanto lawsuits

Courts across the nation call on Kenneth R. Feinberg to resolve seemingly unresolvable cases.

U.S. District Judge Vince Chhabria of San Francisco did the same last week when he tapped the Washington, D.C.-based attorney to mediate settlement discussions in roughly 900 lawsuits alleging Monsanto's Roundup weed killer causes cancer.

Several legal observers called Feinberg the ideal person for the job. He has facilitated settlements in complex, high-profile cases such as the Sept. 11th Victim Compensation Fund, the BP Deepwater Horizon oil spill and Volkswagen AG's diesel emissions scandal.

But statements following the most recent state court verdict in May suggest he will have a substantial gap to bridge between the two sides.

"[He] obviously has a lot of experience in this realm, but I'd be surprised to see a settlement anytime soon," said University of Georgia School of Law professor Elizabeth C. Burch.

The company has maintained domestic and international regulators, including the U.S. Environmental Protection Agency, continue to find no adverse health effects associated with Roundup exposure.

While settlements may be unlikely, agreed UC Hastings School of Law professor David Levine, a combination of Feinberg's resolutions of the Agent Orange product liability lawsuits and asbestos litigation may serve as a replicable template.

More than 13,400 plaintiffs across the country have alleged exposure to Roundup caused their non-Hodgkin lyphoma. In re: Roundup Liability Litigation, 16-MD02741 (N.D. Cal., filed Oct. 4, 2016); Pilliod v. Monsanto Co., RG17862702 (Alameda Super. Ct., filed Nov. 16, 2017).

The resolution of the Agent Orange lawsuits, in which Vietnam War veterans and their families alleged injury from exposure to chemical herbicides, created a $180 million settlement fund. The program was unique in that the eligible plaintiffs did not have to prove causation between exposure to the chemical and their condition in exchange for surrendering compensation proportionate to their injuries.

"Proving exposure to Roundup caused your cancer, that's going to be the hardest part," Levine said.

The incentive for plaintiffs to settle for a smaller award is the certainty of a payout on specific causation claims that are difficult to prove considering non-Hodgkin lymphoma is a common and typically idiopathic cancer, he said.

But the Agent Orange settlement did not provide payment to plaintiffs who developed an illness after the eligibility period, which was common because conditions associated to Agent Orange exposure, like Roundup exposure, take decades to develop.

Although the "claims procedure did not work as well" in the asbestos litigation, Levine added, it created a trust in which claimants not yet diagnosed with an illness at the time of the settlement could receive a payout.

Among the most difficult aspects of reaching a settlement in the Monsanto cases, like the asbestos lawsuits, will be determining the different classes of plaintiffs, according to Case Western Reserve University School of Law professor Andrew Pollis.

Attorneys may want to ensure a process in which people who have been exposed to Roundup and are concerned about their increased risk of non-Hodgkin lymphoma can receive a settlement proportionate to their injuries if they develop cancer down the road.

"That's something I would look for as a plaintiffs' attorney," Pollis said. "For those people to then be transferred into a different class of claimants."

Still, legal observers were skeptical about the chances of a settlement in the near future because Monsanto is coming to the table at a point in litigation when the plaintiffs have the most leverage after three jury verdicts against the company in the last year.

"As this litigation is still in the early stages -- with no cases that have run their course through appeal -- we will also remain focused on defending the safety of glyphosate-based herbicides in court," said Bayer spokesperson Charla Lord in a statement.

Meanwhile, plaintiffs' attorneys have been encouraged by the massive awards totaling more than $2 billion.

The attorneys who have prevailed in the trials and continue to represent thousands of plaintiffs expressed that they want to continue trying the cases before juries.

R. Brent Wisner, who was lead attorney in two state court trials against Monsanto said: "At this point, I don't know if we would settle." Aimee H. Wagstaff, the lead attorney in the first federal Monsanto trial, said, "there's no signal to suggest that we won't continue to have great success at the trial courts."

But if there is anyone up to the task, it appears Feinberg has the best shot, legal observers agreed.

"He's the perfect guy to do it," Levine said.

Feinberg declined to comment on Friday.