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Updates from JPML – Roundup, Taxotere, Abilify

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The Judicial Panel on Multidistrict Litigation met in late September to discuss the establishment of multidistrict litigation proceedings for several new mass tort cases, including Abilify compulsive gambling claims, talcum powder ovarian cancer lawsuits, Taxotere permanent hair loss actions, and Roundup-related cancer cases. At the time that the request for coordination was made, 37 different lawsuits had been filed around the country in 21 different federal courts alleging that Roundup, the weed killer manufactured by Monsanto, caused the plaintiffs’ cancers.

The plaintiffs agreed that coordination was appropriate, but differed as to the appropriate forum. The other federal court venues urged by various plaintiffs included the East St. Louis, Illinois (where the Yaz and Pradaxa MDLs were litigated); the Eastern and Central Districts of California; New Orleans; Chicago; and the District of Hawaii. The Defendant Monsanto, on the other hand, opposed centralization of the individual lawsuits, but did suggest that the federal courts in Northern California, Southern California, or South Florida would be appropriate forums if coordination was ordered in the federal court system.

On October 3, 2016, the Judicial Panel announced that the Roundup lawsuits would be coordinated before federal court judge Vince Chhabria in the Northern District of California in San Francisco. District Court Judge Chhabria is 47 years old, and was nominated to the federal bench by President Obama in 2013. He has previously served as a Law Clerk for Justice Stephen G. Breyer of the United States Supreme Court and his brother, District Court Judge Charles R. Breyer in San Francisco.

The consolidated proceedings will include all individual lawsuits filed in federal court that allege that Monsanto failed to properly warn consumers that its glyphosate-based herbicide Roundup has been linked to the development of non-Hodgkin’s lymphoma. Plaintiffs also contend that Roundup includes other chemicals (primarily the surfactant polyethoxylated tallow amine – “POEA”) which makes the glyphosate in the product even more toxic and potentiates its ability to cause cancer in consumers who have used the product for several years. Monsanto has vigorously defended these lawsuits and contends that its popular weed killer does not cause lymphoma. There are concerns that Roundup use may also be associated with Hodgkin’s lymphoma, leukemia, myeloma, soft tissue carcinoma, and bone cancer. It is anticipated that many of the plaintiffs who will file lawsuits in MDL No. 2741 will involve farm workers, landscapers, and homeowners who used Roundup on a regular basis for a period of years. The plaintiffs have already fought several significant battles in their lawsuits against Monsanto, including overcoming motions to dismiss lawsuits that Monsanto claimed were preempted by federal regulations regarding warning labels for their products (a type of legal immunity that is often claimed by manufacturers of chemicals, medical devices, and pharmaceuticals).

Studies Show “Strong Link” Between Pesticide Exposure (Roundup) and Cancer

Scientists at the International Agency for Research on Cancer published an article in 2014 indicating that there was a “strong link” between pesticide exposure and non-Hodgkin lymphoma.

This article reviewed 44 studies and research projects published since 1980 in coming to the conclusion that consumers exposed to Roundup had a 200% increased risk of developing a blood cancer.

The theory is the glyphosate, one of the primary ingredients in the weed killer, causes gene mutations in white blood cells that cause damage to the body’s immune system and ability to ward off cancer. Even prior to 1980, there were animal studies that showed possible carcinogenicity for Roundup. In November of 2001, there was a Canadian study published showing an increased risk of non-Hodgkin lymphoma associated with use of Roundup, and a Swedish study published in 2008 documented an increased cancer risk in men. In September of 2003, data from the Midwest was published in Occupational and Environmental Medicine from three studies showing an increased risk of non-Hodgkin lymphoma in agricultural workers. Monsanto has in the past requested bifurcation of the legal proceedings, as they contend that discovery in the individual plaintiffs’ cases is not necessary since they contend that the plaintiffs have insufficient scientific evidence to meet the rigorous standards for admissibility of evidence that apply in federal courts (known as the “Daubert” standard).

It is too soon to know whether the newly-assigned MDL judge will allow the Defendant to address the generic scientific theory of the case prior to discovery, which would be an unusual approach, but one that has become more common in recent years. The manufacturers of Zofran attempted to follow a similar path in that MDL litigation over birth defects last year, and failed in their efforts.

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