Liars, Ghostwriters and Whistleblowers: How Bayer Made the Worst Deal in History

Bayer acquired Monsanto in 2018 for $63 billion, a purchase Bayer CEO Werner Baumann said would further their goal of creating a leading agriculture company.¹ Bayer is now the largest seed and pesticide company in the world, but it might not stay that way for long, as lawsuits mount against the chemical giant over Roundup herbicide's cancer link.

At least 13,400 lawsuits have been filed from people who claim exposure to their glyphosate-containing Roundup caused them health problems, including cancer. The first three lawsuits have already ended in favor of the plaintiffs, leaving Bayer saddled with billions in damages — and that's only the beginning.

Now some experts are calling Bayer's acquisition of Monsanto "the worst deal ever,"² and the company is scrambling to appeal and trying to convince courts to toss out the lawsuits because U.S. regulatory agencies continue to side with industry and assert glyphosate is safe.³

Bayer Zero for 3 in First Series of Roundup Lawsuits

In August 2018, a jury ruled in favor of plaintiff Dewayne Johnson in a truly historic case against Monsanto. Johnson — the first of the cases pending against the chemical company — claimed Roundup caused his Non-Hodgkin lymphoma, and the court agreed, ordering Monsanto to pay $289 million in damages to Johnson, an amount that was later reduced to $78 million.

Bayer asked the court to throw out the judgment in April 2019 and reverse the damages awarded because Johnson is near death.⁴ In the second case, a judge ruled in favor of the plaintiff, ordering Bayer to pay more than $80 million.

The jury agreed that Edwin Hardeman's repeated exposures to Roundup, which he used to kill weeds on his 56-acre property, not only played a role in his cancer diagnosis but also that the company did not warn consumers that the product carried a cancer risk.⁵

The case was particularly noteworthy because it was split into two phases, with jurors first finding the chemical to have caused the cancer on purely scientific grounds and the next phase finding that Bayer is liable for damages.⁶ Ultimately, Hardeman was awarded $75 million in punitive damages, $5.6 million in compensatory damages and $200,000 for medical expenses.⁷

The third case involved a married couple, Alva and Alberta Pilliod, who claimed they both developed Non-Hodgkin lymphoma after regular use of Roundup. The pair had been using Roundup since the 1970s, stopping only a few years ago.

The jury heard 17 days of testimony and deliberated for less than two days before deciding in the Pilliods' favor and ordering Bayer to pay $2 billion in punitive and compensatory damages.⁸ As for what compelled the possibly-disastrous Monsanto acquisition in the first place, The Telegraph's deputy business editor Ben Marlow states it was part arrogance and greed:⁹

"On one side was Bayer's uber-ambitious new boss Werner Baumann, who seemed determined to start his promotion to the top job with an almighty bang, unveiling Germany's biggest ever takeover, a mere four weeks into the job.

Meanwhile, his opposite number at Monsanto, Hugh Grant, had a mind-boggling $226m (£173m) in shares and severance pay resting on the merger. Perhaps that explains why the boards of both companies were prepared to overlook the financial and legal risks of the tie-up."

Bayer Argues Lawsuits Should Be Thrown Out Because of Industry-Friendly US Regulators

The likelihood that Bayer will ultimately have to offer a settlement to the tens of thousands of people who say Roundup caused their cancer grows ever stronger — and the company is no stranger to settlements. Bayer and Johnson & Johnson recently agreed to settle more than 25,000 U.S. lawsuits alleging their blood thinner drug Xarelto causes uncontrollable bleeding, severe injury and death for $775 million.¹⁰

In the case of the glyphosate lawsuits, however, Bayer is not going down without a fight. Their latest argument is that the $2 billion jury award, along with pending lawsuits, should be thrown out because of the U.S. Environmental Protection Agency's (EPA) favorable stance toward glyphosate.¹¹

In their latest review of glyphosate, the EPA released a draft conclusion April 30, 2019, stating the chemical poses potential risks to mammals and birds that eat treated leaves, as well as risks to plants,¹² but poses "no risks of concern" for people and "is not likely to be carcinogenic to humans."¹³

Reuters quoted one of Bayer's lawyers, William Hoffman, who stated, "We have very strong arguments that the claims here are preempted ... and the recent EPA registration decision is an important aspect of that defense."

The news outlet continued, "Preemption is generally regarded as a 'silver bullet defense' because it stops claims across the board, said Adam Zimmerman, a law professor at Loyola Law School in Los Angeles."¹⁴

In stark contrast, in March 2015, the International Agency for Research on Cancer (IARC) determined glyphosate to be a "probable carcinogen" based on evidence showing the popular weed-killing chemical can cause Non-Hodgkin lymphoma and lung cancer in humans, along with "convincing evidence" it can also cause cancer in animals.

EPA Doesn't Protect Anything but the Chemical Industry

In 2015, following IARC's glyphosate cancer ruling, the EPA, rather than taking immediate steps to protect Americans from this probable cancer-causing agent, decided to reassess its position on the chemical and, after doing so, released a paper in October 2015 stating that glyphosate is not likely to be carcinogenic to humans.¹⁵

In April 2016, the EPA posted the report online briefly, before pulling it and claiming it was not yet final and posted by mistake. The paper was signed by Jess Rowland (among other EPA officials), who at the time was the EPA's deputy division director of the Office of Chemical Safety and Pollution Prevention and chair of the Cancer Assessment Review Committee (CARC).

Email correspondence showed Rowland, who at the time was the EPA's deputy division director of the Office of Chemical Safety and Pollution Prevention and chair of the Cancer Assessment Review Committee (CARC), helped stop a glyphosate investigation by the Agency for Toxic Substances and Disease Registry (ATSDR), which is part of the U.S. Department of Health and Human Services (HHS), on Monsanto's behalf.

In an email, Monsanto regulatory affairs manager Dan Jenkins recounts a conversation he'd had with Rowland, in which Rowland said, "If I can kill this I should get a medal,"¹⁶ referring to the ATSDR investigation, which was put off for years. The final draft conclusion is the report that was finally released in April 2019, stating the chemical "is not likely to be carcinogenic to humans."¹⁷

EPA Inspector General Launched Investigation Into Collusion Accusations, but Where Are the Findings?

Another internal email between Rowland and the late Marion Copley, a former EPA toxicologist, suggests Rowland colluded with Monsanto to find glyphosate noncarcinogenic.

In Marion's correspondence to Rowland, she cites more than a dozen reasons why she believes glyphosate to be carcinogenic, and states "it is essentially certain that glyphosate causes cancer" and "the CARC category should be changed to 'probable human carcinogen."¹⁸

She then pleads with Rowland to "for once do the right thing and don't make decisions based on how it affects your bonus," continuing:¹⁹

"You and Anna Lowit [science advisor in the EPA's Office of Pesticides] intimidated staff on CARC and changed HIARC [Hazard Identification Assessment Review Committee] and HASPOC [Hazard and Science Policy Committee] final reports to favor industry.

Chelators [which glyphosate was originally designed to be] clearly disrupt calcium signaling, a key signaling pathway in all cells and mediates tumor progression.

Greg Ackerman [Branch Chief, Office of Pesticide Programs] is supposed to be our expert on mechanisms, but he never mentioned any of these concepts at CARC and when I tried to discuss it with him he put me off. Is Greg playing your political games as well, incompetent or does he have some conflict of interest of some kind?"

As the evidence of potential collusion between an EPA agency staffer and Monsanto grew, Rep. Ted Lieu, D-Calif., requested that an investigation be conducted into whether such collusion took place. The inspector general responded in 2017, stating that he asked the EPA's Office of Investigations (OIG) to "conduct an inquiry into several agency review-related matters."²⁰

The question now, two years later, is what were the findings from the investigation? The EPA's OIG shows no mention of such a report on their news releases and inspector general statements page.²¹ Back in 2017, Bart Staes, a Belgian member of parliament, told HuffPost of increasing evidence relating to Monsanto's manipulation of science and regulatory agencies:²²

"We are now getting some written proof of collusion between scientists and Monsanto, which has these scientists like puppets on a string … More and more, the debate is about corporations controlling the science, and then this science is used by the regulators."

Another example occurred in 2015, when Henry Miller, who was outed as a Monsanto shill during the 2012 Proposition 37 GMO labeling campaign in California, published a paper in Forbes Magazine attacking IARC's findings after it classified glyphosate as a probable human carcinogen. Later it was revealed that Miller's work was in fact ghostwritten by Monsanto.

Bayer Investors Give Vote of No Confidence

At Bayer's annual general meeting in Bonn, Germany, 55.5% of shareholders voted against ratifying the management's actions, in large part due to the Monsanto acquisition.²³ Marlow called the move "a rare act of defiance in conservative Germany," even though the vote was symbolic in nature only and won't legally change anything.²⁴

"But having forced through the Monsanto takeover without a vote," Marlow added, "Bayer has already made it quite clear what it thinks of shareholders. Salvaging something from this ruinous deal will take a heroic act."²⁵

The next Bayer Roundup case will go to trial in August 2019. The plaintiff is Sharlean Gordon, who used Roundup for 15 years and was diagnosed with Non-Hodgkin lymphoma in 2006. The trial will take place in St. Louis, Missouri, just miles from Monsanto's former world headquarters.

One of Gordon's attorneys, Eric Holland, said that not only has the human toll been tremendous in this case, but Monsanto's behavior is also atrocious. "This evidence against them, their conduct, is the most outrageous I've seen in my 30 years of doing this," Holland said. "The things that have gone on here, I want St. Louis juries to hear this stuff."²⁶

If you're curious how much glyphosate is in your body, the Health Research Institute (HRI) in Iowa developed the glyphosate urine test kit, which will allow you to determine your own exposure to this toxic herbicide. In order to avoid this chemical as much as possible, choose organic or biodynamic foods, and install a filter on your drinking water.

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