In an early discovery dispute in mass tort litigation against Monsanto, the company is refusing to give plaintiffs discovery access to 11 executives in Roundup Herbicide Products Liability Litigation, MDL No. 2741.
Plaintiff attorney Aimee H.Wagstaff, representing plaintiff Edwin Hardeman, sent a discovery letter brief to US District Judge Vince Chhabria in the Northern District of California. She states that the executives “possess unique information critical to whether exposure to Roundup causes cancer, Monsanto’s knowledge of that causal link, communications Monsanto made on the issue, and the relevant science.”
Manipulate scientific literature
“The documents produced thus far demonstrate Monsanto’s early knowledge, its lack and/or manipulation of Roundup® testing, and its engagement in scientific misinformation,” Wagstaff argued. “Each one of the requested custodians was carefully selected after reviewing the first batch of documents Monsanto produced, and each one is directly relevant to whether Roundup® causes non-Hodgkin’s lymphoma.
The employees work in environmental exposure, chemistry, toxicology, registration of Roundup, technology and other scientific disciplines. Two executives — Eric Sachs, the Science, Technology and Outreach Lead, and Xavier Belvaux, Regulatory Affairs Lead at Monsanto Europe, are “heavily involved in attempts to manipulate the scientific literature” and “suppression of information about the carcinogenicity of Roundup.”
Wagstaff is an attorney with Andrus Wagstaff PC in Lakewood, CO. She and two other attorneys have applied to be lead counsel in the MDL. See Judge Seeks Lead Counsel in Roundup Products Liability Litigation. The discovery dispute is likely to be heard at the first MDL hearing on November 16.
The Judicial Panel on Multidistrict Litigation (JPML) created the new MDL on October 3 . There are currently 21 actions pending in 14 districts. Including the potential tag-along actions, there are now 37 actions pending in 21 districts. More than 10 different law firms represent plaintiffs in these actions, which were spread across the country.
Defense attorney Rosemary Stewart of Hollingsworth LLP responded that the request is an undue burden that will take three months, and that the information can be obtained from a more convenient source. Monsanto has already produced the custodial files of 12 employees and 3.5 million pages of documents.
Stewart argues that the employees have no relevant knowledge of the science or the testing of glyphosate-baed herbicides. “Discovery from these 11 additional custodians is not likely to produce material relevant to the question of general causation.” Stewart asserts that the plaintiff’s request is “suspect” because it attempts to short-circuit coordination of discovery on behalf of all plaintiffs.
“In this case, the science is increasingly clear. For example, just last month, EPA’s Office of Pesticide Programs (“OPP”) issued a 227-page evaluation of glyphosate’s carcinogenic potential, concluding that “[t]he strongest support is for [the description] ‘not likely to be carcinogenic to humans’ at doses relevant to human health risk assessment,” Stewart states. See Glyphosate Issue Paper: Evaluation of Carcinogenic Potential at 141 (Sept. 12, 2016).