BY ROBERT HOWARD, AKA AOJ, AKA JOHNSON JUROR #4
Let’s just call Roundup what it is: a disaster that has been foisted upon humanity by the likes of Monsanto and Bayer. It is an environmental and humanitarian disaster which so many dedicated and right-minded people have worked for decades to mitigate. A person might think…well, in my naiveté, I thought, that the situation was a zero sum game in which either the big, bad, Ag/Chem corporations, on one side, or activists, victims, and lawyers on the other, would “win.” Well, math, and activism, are difficult pursuits.
This whole debacle has largely devolved into a legal battle that defies numbers. It is as if someone took the zero sum and divided it by zero, which gives us an imaginary number, if I am recalling my pre-algebra correctly. This is not the first time imaginary numbers have popped up. Earlier mirages: $289 million judgement for Lee Johnson? $2 billion for Alberta and Alva Pilliod? Poof! And that $10 billion settlement? I guess it is a real number, but when you divide it by 100,000 victims, each gets $100,000. That would not seem like a win to me if I had cancer.
Or to put it in a healthcare perspective: A relative of mine recently spent 24 hours in an ICU. That bill came to north of $60,000.
I am hard pressed to come up with another deadly conflict as big, and expensive, as the legal battle that is Humans v Bayer, except for actual wars. The comparison is apt (even when one side wins a war) because… wait, does anybody really win a war?
And then we have the fog of war. The hideous, mysterious, counterintuitive, or just plain bizarre things that happen because, what the hell, we are blowing everything up anyway. Take the recent astonishing article by Joel Rosenblatt in Bloomberg, in which he described the case of Carson v Monsanto.
In 2017 a Federal judge allowed John Carson’s case, claiming Roundup’s design defect and Monsanto’s negligence, to proceed. The judge, however, nixed the plaintiff’s claim of failure to warn, because the EPA did not require a warning on the label. This is the much hyped (by Bayer) preemption claim.
Here is where thing get way weird. Bayer figured out that if they pay Carson to appeal the failure to warn part of the judge’s decision, they could get the issue taken up at the Federal appeals level. Since other Federal judges have allowed the failure to warn claims, Bayer is hoping to set up a favorable Supreme Court decision on preemption. Its a legal long shot, but that seems to be all Bayer has left these days, or ever had to begin with.
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Meanwhile, filings continue to pile up in the decidedly un-classy class action settlement proposal before U.S District Judge Chhabria in San Francisco. The settlement was proposed to handle future claims against Monsanto/Bayer. (Queue theme music from The Twilight Zone, as a Rod Serling-like voice tells us that, in the Twilight Zone, Roundup is still on the market.)
The Corporate Crime Reporter (I love that masthead!) recently interviewed one of 300 lawyers who have “challenged” the settlement, (hence the plethora of filings.) Gerson Smoger of Dallas, Texas, said, “I’m challenging this because it’s an abomination to the tort system.” Can I get a witness?
Smoger points out the absurdity of a settlement for a product that is still on the market, of course, and also objects to its four year stay on all litigation and to the sad fact that the settlement would result in awards of “between $10,000 and $25,000.” Smoger seemed at a loss when asked why the settlement lawyers would put forth a proposal that “ties that hands of victims.” Said he, “[W]e just view the world differently.”
Tune into Judge Chhabria’s courtroom on May 12, for another hearing on the proposed Class Settlement. Which world view will win? Does anybody ever win? To be continued…
© AOJ, aka Robert Howard, 2021