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The U.S. District Judge presiding over all federal Roundup cases has agreed to push back several important deadlines in the bellwether process, and delayed the start of the next federal trial date to February 24, 2020.
Bayer and its Monsanto subsidiary currently face more than 18,400 claims filed nationwide, each involving similar allegations that exposure to Roundup caused non-Hodgkins lymphoma and other cancers. Plaintiffs are pursuing damages from the manufacturer for failing to warn about known cancer risks associated with the glyphosate-based weedkiller.
At least 1,300 of the Roundup claims are pending in the federal court system, where the cases has been centralized before U.S. District Judge Vince Chhabria in the U.S. District Court for the Northern District of California, as part of a multidistrict litigation (MDL).
Following an $80 million award in the first federal claim to go before a jury in March 2019, Judge Chhabria set up a bellwether process where two “waves” of cases originally filed in certain states are being prepared for trial and eventual remand back to different U.S. District Courts if the parties fail to reach a settlement or resolution for the litigation.
In a pretrial order (PDF) issued on August 1, Judge Chhabria granted a joint request by the parties to extend several key deadlines in the discovery process, which resulted in a delay in the start of a second bellwether trial set to go before a federal jury in February 2020.
As part of a first wave of cases being prepared for remand, which includes claims originally filed in California and Nebraska districts, the deadline for the close of fact discovery has been extended by five weeks, to September 20, with Plaintiffs’ expert reports now due by October 4 and Monsanto’s expert reports due October 25. The close of expert discovery in this first wave of cases has been pushed back to November 20, with any potential Daubert hearing before remand now set for January 29, 2020, instead of early December 2019.
For the second wave of cases, which includes claims originally filed in Iliniois and North Carolina districts, all fact discovery will now be completed by March 27, 2020 ,and the close of expert discovery was pushed back to June 5, 2020, with any potential Daubert hearings before remand delayed about 90 days, to September 9, 2020.
These jointly requested delays in the bellwether discovery process required the Court to push back to the start of the next federal bellwether trial, which involves a Roundup case filed by Elaine Stevick, who was diagnosed with non-Hodgkin’s lymphoma following use of Roundup in her herb garden for years.
However, before the start of the Stevick trial before Judge Chhabria, Bayer and Monsanto face a state court trial in Missouri, which is scheduled to begin on August 19. That trial will involve claims filed by Sharlean Gordon, who used Roundup on her property for about 14 years before being diagnosed with non-Hodgkin’s lymphoma.
While the outcome of these early bellwether trials will not be binding on other cases, they will be closely watched to help gauge how juries are likely to respond to certain evidence and testimony that is likely to be repeated throughout the litigation.
Following massive verdicts in each of the early claims that have gone to trial so far, including one federal bellwether trial and two California state court cases, Bayer has faced substantial pressure to negotiate Roundup settlements, to avoid the need for additional bellwether trials or the remand of claims for trial in various different states.
While preparing for upcoming trials and bellwether waves, Judge Chhabria has ordered the parties to participate in a mediation process with prominent attorney Ken Feinberg, who has guided some of the largest settlements in high-profile litigation in recent years, including funds to pay claims related to the BP oil spill, Volkswagen emissions scandal, General Motors ignition switch recall, September 11th Victim Compensation fund and others.