With settlement talks swirling, another Roundup trial to start in Martinez

After losing three large verdicts in the San Francisco Bay Area, Bayer AG-owned Monsanto will get another chance to defeat a plaintiff's lawsuit alleging the company's weedkiller caused her non-Hodgkin lymphoma in a trial that starts Friday with opening statements in Contra Costa County Superior Court.

The trial is beginning even as another trial, in Missouri, was postponed last week to allow mediator Kenneth R. Feinberg to mediate the dispute while rumors circulate of a larger settlement of some of the cases.

Kathleen Caballero's allegations are similar to three other plaintiffs who successfully sued in Alameda County and San Francisco federal court. She claims to have used Monsanto's popular Roundup weedkiller for decades, from 1977 to 2018, and to have contracted the disease as a result. Caballero v. Monsanto Co., MSC19-01821 (Contra Costa County Sup. Ct., filed Aug. 30, 2019).

Plaintiffs' attorneys have won big verdicts, the largest being a $2.055 billion verdict from an Alameda County Superior Court jury last May, although Judge Winifred Y. Smith subsequently reduced the award to $86.7 million. Pilliod v. Monsanto Co., RG17862702 (Alameda County Sup. Ct., filed Nov. 16, 2017).

Other big jury verdicts also have been trimmed substantially but not eliminated, and all are on appeal.

The latest trial starts amidst rumors of settlements with at last some of the 42,700 plaintiffs who have sued Bayer, according to a company filing.

A St. Louis circuit court judge postponed a multi-plaintiff trial last week. A Bayer spokesperson said the continuance "is intended to provide room for the parties to continue the mediation process in good faith under the auspices of [mediator] Ken Feinberg, and avoid the distractions that can arise from trial," a company spokesman said.

Legal observers say both sides have something to gain, and to lose, in the Caballero case.

"For the plaintiffs, if they keep winning, they can get more leverage," said Adam S. Zimmerman, a professor at Loyola Law School.

Carl W. Tobias, a professor at Richmond School of Law, said Bayer may have calculated it doesn't have much to lose at this point. "I don't think the risk is huge for Bayer," he said. "It would be good from their perspective to win one."

And even if Bayer loses again, defense lawyers may be able to tee up certain issues for appeal.

Superior Court Judge Barry P. Goode, who recently retired from the Contra Costa County bench and is handling the Caballero case in a Marinez courtroom, ruled last week Bayer's attorneys could introduce the April 2019 results of an U.S. Environmental Protection Agency interim study reaffirming its longtime position glyphosate, the active ingredient in Roundup, "poses no risks to public health" and is not a carcinogen.

Plaintiff's attorneys Steven J. Brady of the Brady Law Group and Curtis G. Hoke of The Miller Firm LLC sought unsuccessfully to exclude the study.

But lawyers for plaintiffs in past cases have relied on other studies, such as the International Agency for Research on Cancer, which found glysophate was a probable human carcinogen in 2015.

Bayer is represented by Winston & Strawn LLP, led by Sandra A. Edwards and George C. Lombardi, as well as Dentons US LLP attorneys Bradford J. DeJardin and Erin M. Carpenter.