By Robert Howard, AKA AOJ, AKA Johnson Juror #4
I’m sort of a morning person—it’s my favorite time of day—but I don’t just spring out of bed ready to take on the world, or remodel someone’s kitchen, as the case may be. The process of waking up is, for me, pretty much the same every day. Eyes still closed, I become aware that I exist and I am vaguely relieved about that. Then I remember that I am a husband and a father and, most of the time, all is well with my wife and two daughters. Life is good. Then my eyes open and I roll over and reach for my phone on which a newsfeed confirms that the world as I know it is still more or less intact. I check the weather forecast and radar maps if I am working outside. And then, if it is a weekday, I look at what the markets are doing. Dow, S&P, Nasdaq, and a few individual stocks and commodities, starting with Bayer AG.
I’ve been checking the price of Bayer’s stock nearly every weekday for two and half years, a habit that started the Monday following the verdict in the Johnson v Monsanto trial back in 2018. You see, on that Monday, Bayer’s market cap took a roughly ten percent haircut because of our verdict. (I was juror #4). As I had explained on our juror questionnaire, I did not own Monsanto stock, unless it was hiding in a mutual fund portfolio. I was also not aware of the deal that had gone down just before the trial in which Bayer bought Monsanto for $63 billion. It occurred to me on that Monday morning that I was, in a way, responsible for nearly $1 billion of Bayer losses, if one were to divvy them up amongst the twelve jurors.
The other morning, I went through my usual wake up routine and paused at Bayer. The stock was up nearly five percent in Europe and in early trading on Wall Street. I knew immediately that this meant a deal favorable to Bayer had occurred, so I scrolled down to the financial news and found an early story by The Recorder describing what had transpired: A second deal had been reached involving the class action against Bayer on behalf of future victims of Roundup.(Federal judge Vince Chhabria had treated the first attempt at this deal as if attorneys had presented him with a half-baked, last minute, dog chewed homework assignment. Tell ya what, why don’t you take a mulligan and come back with one that pays due respect to the U.S. Constitution. Ouch.)
One big problem had been that the parties conjured up a panel of scientists to be tasked with making a definitive review of the science on whether or not Roundup, with its main ingredient, glyphosate, caused cancer. Each side would have chosen four scientists with a ninth to be chosen by…I don’t recall. Doesn’t matter, because the whole concept of this panel, with its decision being binding on claimants, rubbed Chhabria the wrong way—these kinds of decisions should rest with the courts, not scientists, after all.
In the new $2 billion deal, there is still a panel, but it will act only in an advisory capacity. Importantly, unlike the old scheme, claimants can take their case to court if they do not like the settlement that is offered, which The Recorder said would max out at $200,000 each.
Bayer’s goal, of course, was and is to cap its future liability, hence the bump in its stock last week. Investors have been pretty much the only stakeholders who have gotten the message sent by the huge punitive damage awards juries have slapped on Monsanto /Bayer. Ironically, Bayer’s stock was, at times, worth less than the $63 billion they paid for Monsanto. (Shareholders sued Bayer recently for failing to do due diligence in the purchase.)
The stock continues to rattle around at the bottom of the equity barrel, still 35% off its highs before the first Roundup trial. The obvious question is, if this kind of corporate calamity cannot get a company to take a toxic product off the market, what will?
Heck, Bayer still won’t put a cancer warning on the label of Roundup. (Yeah, I know, blah, blah, the EPA sez it’s safe, blah blah…) Here is what they will do: “Within 180 days of the entry of the final approval order, Monsanto will seek permission from the EPA to include in the labeling of all Roundup Products a reference to information regarding whether exposure to Roundup causes NHL.” (My emphasis.) Talk about burying the lead. Does it also mention that this reference can only be found on a plaque attached to the Perseverance rover, which will soon attempt to land on Mars?
I noticed browsing through the voluminous settlement proposal that Bayer will pay attorney’s fees of $170 million, which includes a set aside for a “Legal Services Program” for future claimants. No, you will not find a snark attack on lawyers here. Yeah, they probably do alright for themselves, but as I have said in earlier posts, if you doubt their dedication and don’t think that they have an incredibly hard job, then you should try raising the funds to do the discovery and hire expert witnesses to sue a massive corporation. Then win the trial. Then survive the appeals. Or to put it another way: “You come at the king, you best not miss.”
I also noticed a list of occupations that elevate “NHL risk separate and apart from Roundup Products’ use: cleaning service, electrician, hairdressing, handling fission products/jet propellant/solvents, metal working, painting, pest exterminator, petroleum refinery, textiles, woodworking, x- or gamma radiation.” (This list is used as part of the determination of how much money a claimant would receive. If you are on this list, you can’t make it to the $200,000 payout tier.) I could not help noticing I hit a quad-fecta: I am an electrician, painter, woodworker, and grew up in a house contaminated with radon gas. Woo-hoo.
While there was nothing I could do about the house I grew up in, I usually wear the appropriate PPE at work in my various trades. This brings me back to one of my pet gripes: Why in the world won’t Bayer at least take Roundup off the residential market? Workers in hazardous jobs are, or should be, trained in best safety practices, like wearing PPE around toxic substances. OSHA does not reach into our homes, however. (Warnings on product labels do, but apparently this is a bridge too far for Bayer.) I don’t know if a federal judge could compel a company to take a product off the market, but he could certainly exert pressure towards that end. I suspect that in this case, the scientific evidence has not been overwhelming enough for Chhabria, who was never a fan of causation in these cases. (Another reason he dissed the science panel was that it might come to conclusions that could be disproven by future scientific studies.)
So, when will the science be settled? There is rarely a definitive moment when that happens, because that is the nature of science. It assumes its hypotheses are wrong, even when they turn out to be true. Science would make a cruel juror, for real jurors in civil cases need only find that a preponderance of the evidence favors a plaintiff. The plaintiff in Johnson v Monsanto told the jury that Monsanto’s day of reckoning had arrived because the science had caught up to them. I actually think the science has not caught up yet, but merely made a wake up call. When science does catch up, when it is really settled, there is a pretty good chance that the huge gambles companies like Bayer make, gambling with so many lives—with an entire planet—will not end well for them, or us. But, maybe, just maybe, I am getting a little ahead of myself. Judge Chhabria still has to approve this latest settlement for it to be worth more than ink on paper.
© 2021 by Robert Howard aka AOJ
