Thread by @MariaDinzeo

Gearing up for a marathon #Roundup MDL settlement hearing this morning before Judge Chhabria in the Northern District. I'll have coverage for @CourthouseNews

In the meantime, here's a link to the judge's questions for counsel:
documentcloud.org/documents/2074…

Chhabria: "I was going back over the questions I put out and I found myself regretting that I didn't separate out the questions based on class."

There are two:
1. People diagnosed with Non Hodgkin lymphoma and exposed to Roundup and not yet hired lawyers
2. People who have been exposed to Roundup and not yet diagnosed with NHL

Chhabria: "Yesterday I was pounding the podium and saying there was no way this deal can be reasonable for class number one.
I'm starting to have second thoughts about that as I was reflecting on it."

"A settlement of this type could be potentially reasonable for class #1, as for #2 my concerns are even greater."

Chhabria says he wants to focus first on Class #2 this morning. His primary concern is litigation risk for this class.

"It seems to me that for the people who have not yet been diagnosed with NHL, by far the biggest litigation risk is that SCOTUS will rule at some point that these state law claims are preempted." (By FIFRA)

Class attorney Elizabeth Cabraser says: "We were very pleased to see that 9th circuit affirmed this court's findings in Hardeman, but there was some language in the decision to give us pause."

She notes that the EPA just filed a brief arguing for preemption in another 9th Circuit case on glyphosate registration.
glyphosatelitigationfacts.com/main/wp-conten…

Chhabria says that case has nothing to do with preemption of state law claims under FIFRA.

Chhabria goes back to his earlier point: "One of the things that needs to be conducted is an assessment of the risk that SCOTUS will issue a preemption ruling either in Hardeman or some future case."

Cabraser: "Our assessment is it's an ongoing and material risk and one class members should be aware of and is reflected in the notice papers." (The risk of negative future rulings, not just a SCOTUS ruling.)

Chhabria remarks that the federal case was the easiest set up for Monsanto: "If Monsanto can't win a trial with that sort of structure where we're keeping out the most damming evidence until after the jury has decided causation, it's in big big trouble."

Chhabria gets down to it: what is the risk of SCOTUS ruling that that there is no federal preemption? And vice versa?

Cabraser: "I don't know what the football pool would be on that."

Adds: "Because preemption is so important and because it is a game changer, as responsible plaintiffs lawyers when we have a class settlement that provides a safe harbor from a negative preemption ruling by SCOTUS we have to take that seriously."

Chhabria: "If SCOTUS rules in favor of Monsanto on preemption I know I'm going to get nothing. If it rules in favor of plaintiffs whenever I get NHL I'm going to have a value lawsuit against Monsanto.
Why would I wanna be part of this deal?"

Cabraser says that the medical monitoring option it provides is good reason. It provides peace of mind for plaintiffs who have been exposed but not yet developed NHL.

Chhabria notes the latency period for NHL, which can present 10 years after exposure: "The four years of medical mentoring and possibility of getting some compensation if I'm diagnosed with NHL in 2-4 years is not particularity enticing to me."

Chhabria seems particularly opposed to the four years of medical monitoring and compensation period.

Cabraser: "The incentives and disincentives are designed to promote the continuation of that fund past four years and into perpetuity. If Monsanto doesn't it has to pay a breakup fee of $200 million."
Chhabria: "That sounds like peanuts."

Cabraser says the reality is that after 3 trial victories, there are 20 more similar cases set for trial and 4,000-5,000 with lifted litigation holds. "The queue is long, a punitive damages claim is depreciating."

She says nothing is more valuable than health and longevity. "We cannot look only at things that are arguably reducible to dollars and cents."

Chhabria wants to know if Monsanto could waive a federal preemption defense for the class. Cabraser said it could. It's already waived statutes of limitations while the settlement is pending.

Chhabria asks point blank if there's enough money in the 4 year compensation fund: "Should I assume it is highly unlikely that compensation would not be available for me 16 years from now at age 67 when I'm diagnosed with NHL?"

Cabraser: "Under the settlement there is no guarantee of such a fund."

"But also you would want to take into account that such funds, particularly court supervised funds, will be continued and it will be there for you. And frankly if we're assessing risks, that likelihood is higher than the likelihood you'd be better off leaving the settlement."

Cabraser also says that diagnostic services will be very helpful to the class and should also be heavily weighed.

Leslie Brueckner weighs in on risk of SCOTUS finding the claims preempted:
"I would note that the Hardeman decision was written by a very conservative judge and it was a very conservative panel."
My story on the Hardeman ruling last week:
courthousenews.com/bayer-suffers-…

Chhabria: "That does not strike me as particularly relevant. They were applying existing SCOTUS case law. (Bates)

They said we recognize that regulatory preemption has evolved in other areas over the years. But Bates is the most recent on FIFRA and controls."

Brueckner says regardless, SCOTUS would have to overrule Bates, and that's "not a serious risk."

But Brueckner admits it's the biggest risk for subclass 2, not currently diagnosed with NHL.

Brueckner, who represents objector attorneys, said it's impossible to offer class members with unmanifested future injury claims a monetary deal. "The only way this settlement could pass constitutional muster is if it has a full an unfettered option to back out."

Exposure is further complicated by the fact that Roundup is still on the market and Monsanto refuses to put a warning label on it.

Another objector attorney Gerson Smoger: "Whatever Monsanto does to these people in the future has been released because there's release of unknown claims of future exposure and future products."

Attorney Behram Parekh on adequacy of the fund:
"It's very clear that this fund will at most last four years and that's even assuming everything the class administrators have written is correct in terms of who gets what, how many people, and who doesn't."

Parekh adds that over 90% of the compensation fund will be used up in four years, leaving many future claimants out in the cold unless Monsanto agrees to add to the fund "out of the goodness of their heart."

And if there's a preemption ruling from SCOTUS, not another dime will go into that fund. "It's game over after that," Chhabria says.

But Cabraser says Monsanto has an incentive to replenish the fund because of the threat of a SCOTUS ruling in favor of plaintiffs on federal preemption.
(We're really just going in circles here.)

Cabraser adds that four years of medical monitoring really benefits the class. "If you've been exposed to Roundup you want to get yourself diagnosed."

Cabraser says it offers the "best available screenings."
Chhabria: "What are those?"

Cabraser hands it over to Beth Fegan: The program "doesn't require a physician to do a particular test."
Says patients will be treated holistically.

Chhabria asks about people who are worried about NHL vs. those who have symptoms. "Is there any way for them to tell if I have NHL?"
Fegan: "Not that I'm aware of."

I get the impression that Chhabria really cares about people being able to alleviate their fears about lymphoma, which has a long latency period. Says settlement is "exaggerating the benefit of medical monitoring."

Taking a five minute break for court reporter. Resuming at 11:35 PST.

We're back.
More talk about whether four years of medical monitoring will benefit class members who have been exposed to Roundup and do not yet have NHL but are worried about it, even if asymptomatic.

Fegan likens this case to an NCAA student athlete settlement related to CTE and concussions.

That settlement involved an education program for athletes to be mindful of concussion exposure and to seek help if they develop symptoms of CTE.

So people who have been exposed to Roundup will be "educated" about their NHL risk and what to look for.

Chhabria: "I'm not suggesting that this medical monitoring program is complete hogwash but what you just described with the NCAA players is very different from the experience someone who comes down with NHL, one of the most common cancers that exists."

Chhabria: "The marginal benefit of medical monitoring and diagnostic program you describe is much, much lower than how you're portraying it."

Fegan says Chhabria is privileged to have the knowledge and medical care access that the class doesn't have.

Fegan: "90% of our subclass members are in rural areas and don't have access to healthcare like we do. They don't have the ability to walk in and have a primary doctor and say I've been experiencing night sweats because they don't have the money to go."

Chhabria says Fegan's point is well taken, but still there's no pot of gold at the end of the rainbow, so it's inherently less valuable.

Fegan: In NCAA settlement, "The judge found identification of symptoms and access to healthcare was a valuable right and one he was willing to approve."

Cabaser again: "Here what was most important to us was to do something as a safeguard in a more expansive way and that is to absolutely preserve compensatory damages rights."

Cabraser adds that the one thing they don't have is punitive damages, and that "defendants get all the due process rights there thanks to our Supreme Court."

Chhabria says whether someone can get before a jury and win punitive damages is not the point. "The point is the existence of the ability to seek punitive damages affects my settlement value."

Cabraser says that subclass 2 "are the ones that need the outreach and the warnings."
Adds that information is valuable, and the settlement includes a warning label with a link "to the information on the controversy" regarding Roundup and cancer.

Chhabria proposes a Roundup label that says: "The International Agency on the Research of Cancer has concluded that glyphosate the active ingredient in Roundup is a probable carcinogen, specifically has identified a link between glyphosate & NHL."

The label would add: "The US EPA disagrees and has concluded that there is no link. Please visit the EPA's website and IARC's website."
Chhabria: "Wouldn't a label like that inoculate Monsanto from lawsuits from people who use Roundup?"

Cabraser: "I was writing that down. We have been considering such a label."
But she says, "our goal is not to inoculate Monsanto from future claims."

Chhabria: "But if you negotiate a deal which allows Monsanto to stop worrying about how to pay people exposed afterward doesn't that free up more money for your clients?"
Says he's been wondering why Monsanto didn't do that voluntarily to protect itself from future claims.

Monsanto attorney William Hoffman: "What you sketched out is half of what's in the agreement already. There will be a link that provides all of the information that was entered into evidence in Hardeman for anybody to look at."

Hoffman adds: "We have rights not to articulate support for what IARC did" by referencing IARC on the label.

Hoffman: "We don't believe that we have unilateral authority to put a label like that on. With due respect to the 9th Circuit that's the purview of the EPA.
Chhabria: Why would the EPA reject that?
Hoffman: Because it puts IARC first.

Chhabria says he might ask the EPA to submit a brief offering an opinion on his proposed label.
Because he seems to believe this pushback is bullshit.

Chhabria also proposes re-writing it to put the EPA's conclusion about Roundup and cancer first so they don't feel undermined by IARC.
He's really trying here.
But Hoffman still thinks there would be a fight.

Plaintiff attorney Behram Parekh said none of the labeling on retail containers will go to farmers who spray on a large scale. He calls it a "sideshow."

Going back to medical monitoring: people will have to apply on the settlement website to be assigned to see a pre-approved doctor who may not be anywhere near them.

Hearing breaks for lunch. Back at 1:30.
When we return: the issue of class notice for those who haven't been diagnosed but used Roundup.
Chhabria wants to know will they understand the notice and be able to make a meaningful decision about their options.

We're back. One hour sure does fly by.

Judge Chhabria says he was reflecting on punitive damages over lunch. Tells Cabraser she described punitives as "almost meaningless."
"You describe it as if people were not giving anything up at all" by accepting the settlement, he says.

Cabraser clarifies, saying the last 3 jury verdicts awarding massive punitive damages was good news, but she's looking at the future in terms of litigation risks for the class.

Chhabria: "I'm trying to measure the value of the punitive damages claim for the people who would be giving up those claims."
But he says his takeaway from Cabraser's argument today has been that "punitive damages claims are not worth it anymore to people."

Cabraser: "The point of giving them (punitive damages claims) away is to get something for the class that's more valuable and more usable to members."

What Chhabria is trying to get at is how valuable is it to have the threat of punitive damages hanging over Monsanto's head?
If left in, the possibility of punitives could help plaintiffs negotiate better payouts from the company in the future.

I can only assume from this extensive back and forth that Monsanto was unwilling to budge on punitive damages. It must have been a deal breaker.

Cabraser said plaintiffs' side would not budget on compensatory damages, which they will still be entitled to if the settlement is approved. "We're proud we were able to get that and keep it," she says.

Chhabria still not convinced. "This whole discussion could have been very different if there was a way to assure class members that they will get money from an alternative to litigation."

Moving onto notice. Chhabria wants to be sure that people will read & understand it and make an informed decision on what to do, especially when they may not be diagnosed with cancer until 12 years from now.

Notice for the future class may be the biggest hurdle for approval. Chhabria asks how can someone make a decision on something that may not be a problem for many years?

Cabraser says lots of survey experts and researchers worked on this. They did phone surveys, in person surveys, & interviews.

Grassroots organizations like National Black Farmers Association are also being used to do outreach.
Chhabria asks if they're being paid. Cabraser says not that she's aware of, and that they've volunteered.

Cabraser: "We made sure to find out would the class members, the migrant workers, the people who may be in Mexico part time, how and where could they access this notice? It turns out 90% of migrant farmworkers have smartphones."

Chhabria: "You've done a good job trying to figure out how to reach as many people as you can reach. What if it still doesn't reach a significant portion of the population?:
Cabraser: "The standard isn't for the notice to reach everyone, but we do have to do our best."

Judge Chhabria: "What about the complexity? For someone who is not sick? Here the problem that is being addressed is so abstract and distant."

Cabraser: "Our notice program isn't just sending out or linking to a longform notice. It's a shortform notice with graphics in your language, on your smartphone, on Facebook."

Chhabria says he's basically dealing with two different settlements, one for those with NHL, and one for those who don't yet have it but used Roundup.
One notice for both might be too complicated.

Cabraser: "I seem to be hearing that if we don't have the perfect notice we can't have any."

Judge: "But the question is if this is too confusing and speaking of a problem that is too distant to meaningfully educate a significant portion of the class, such that we can justify relinquishing their right to sue at the front end and claim punitive damages at the back end."

Lol, Judge Chhabria just remembered they haven't even gotten to the science panel issue yet.

Chhabria seems to be leaning toward accepting some kind of notice for the future class, but maybe not this one.

Class attorney Michael Kirkpatrick tells Judge Chhabria that there can be no settlement period for people who were not yet diagnosed with NHL-- because they cannot be given an adequate notice with enough information.

Chhabria proposes this notice for Class 2: "Attention: If you're used Roundup but have not yet gotten sick, read this because you have some rights."

One class attorney who wants an opt-in settlement says it will still be hard for class, made of farmworkers, to understand the notice.
Most people don't know what punitive damages are unless they went to law school, he says.
"Or read John Grisham novels," Chhabria observes.

The lawyer, Behram Parekh, says he really takes issue with the class having to give up punitive damages. "Monsanto is trying to whittle away at the value of individual claims. Why is giving up punitive damages so important to Monsanto?"

Parekh: "That's what holds leverage, holds a hammer above Monsanto, for lawyers like myself to negotiate a deal. If I threaten to take that case to trial and get $10 million or a billion in damages that makes a difference to Monsanto's bottom line."

Parekh: "What makes this egregious is that Monsanto has not changed its behavior. It's continuing to sell Roundup without a warning."

Monsanto lawyer Hoffman brings up the EPA's filing yesterday, saying Parekh is "throwing nonsense into the proceeding."

Chhabria says Monsanto still hasn't been punished in federal court for its conduct because evidence that Monsanto knew about its product's cancer risk did not come into the Hardeman trial.

That evidence may not have come in for Hardeman, but it did in Pilliod v. Monsanto, a state case that was tried a year later.
My story on that here:
courthousenews.com/roundup-cancer…

Chhabria asks Cabraser about opt-out vs. opt-in settlements. What if the future class was actually offered some money. What about a compensation fund for members of Class 2 that they can make claims to right away? He's just thinking out loud.

The payments would be lower than those for Class 1 members who already have NHL.

Cabraser: It is an intriguing idea. But she's sure there would be criticism of it.

Cabraser also says it could negate the value of the medical monitoring part of the settlement.

Judge Chhabria says he knows it's one settlement; he can't approve as to class 1, and reject as to class 2.
Now onto class 1, the group already diagnosed with cancer. He says he was thinking it's in their interest to join the settlement.

Remember these are people who have not yet sued. Here is the class definition:

Chhabria is concerned that SCOTUS will pull the rug out from under class 1 by ruling in favor of Monsanto on preemption.

Chhabria asks why the settlement is limited to people who don't have lawyers. "Why can't it be everyone who has been exposed to roundup and has NHL and people who have lawyers who advise them to opt out can opt out?"
Cabraser: "That's not something we would object to."

Cabraser adds "we didn't want to be accused of client poaching" or interfere with any other inventory settlements in the works.

One lawyer notes that we have not gotten to the science panel yet. I wonder if we ever will.

The "science panel," is a controversial aspect of the settlement that is supposed to determine whether Roundup can cause NHL and if so, at what minimum exposure levels. Plaintiffs' lawyers hated this, and Chhabria was also skeptical: courthousenews.com/judge-balks-at…

The lawyer worries that it's impossible to determine a threshold dose of Roundup that would cause cancer. In that case, it defaults to no causation.

Omg, they're finally going to talk about the science panel. Chhabria said he was planning to end the hearing at 4pm, but it will definitely go longer at this point.

Chhabria: "The plaintiffs agreeing to the science panel is a major concession."

Chhabria: "As I do more of these trials I would seriously consider having a court appointed panel of experts to present an opinion to the jury because I think that would give the jury a much better chance of meaningfully assessing the evidence."
This is for future MDL cases.

Does that make the science panel less of a concession?
Lawyer David Freeman says hell no to a science panel. "It's slanted from the start."

Looks like plaintiff lawyers don't want Monsanto approved experts on the panel because they would refuse to consider new science. Chhabria says "there's trash peer reviewed papers out there on epidemiology."

Chhabria also says he is allowed to approve or reject panel appointees.

Freeman also takes issue with a provision of the settlement that the science panel "must default to a finding of no causation in the absence of agreement about the precise threshold" of Roundup exposure.

Chhabria says he believes it would be by majority vote.

He says he was toying with denying the motion for approval based on this murkiness, but thought it would be better to have this hearing.

Monsanto lawyer Hoffman says "we're not trying to put a thumb on the scale, we want a fair assessment of this." Says scientific evidence from past 3 bellwether trials would come in.

Chhabria still thinks plaintiffs agreeing to the science panel is a major concession. "Could be," Hoffman said, but doesn't really agree. Thinks plaintiffs could still win cases with it.

Chhabria asks what if the science panel renders its opinion and a case goes to a state court and the judge refuses to admit it?

Hoffman says Monsanto "has remedies" and that it's binding on the parties. But Chhabria says it's ultimately up to the judge to admit certain evidence.

Chhabria: "What if I said I'd be very reluctant to . . this is assuming we get to the point of preliminary approval that includes a science panel, but if I said I wouldn't approve anything that didn't leave it up to a trial judge to decide if it's appropriate."

Chhabria: "I have very serious reservations about approving an agreement that effectively forces state court trial judges or federal judges to admit an opinion where it's not subject to cross examination."

Chhabria says it will be a while before he issues a ruling, assuming the parties don't withdraw the settlement.
With that, this hearing wraps.

So much of a proposed $2 billion Roundup settlement troubled Judge Chhabria that he seems hesitant to approve it. My recap of the hearing for @CourthouseNews courthousenews.com/federal-judge-…