As Bayer Monsanto Roundup Settlement Hearing Nears, Professor Coffee Twists the Kaleidoscope

A hearing on the controversial proposed settlement of future cancer claims against Bayer Monsanto will be held May 19 at 10 PST before federal judge Vince Chhabria in San Francisco.

The zoom hearing will be open to the public and streamed live on the internet.

On one side at the hearing will be hundreds of tort lawyers who represent tens of thousands of people who have sued Monsanto owner Bayer AG alleging their non-Hodgkin’s lymphoma and other cancers were caused by glyphosate, the active ingredient in Monsanto’s Roundup herbicide.

These lawyers were blindsided last year when a handful of class action settlement lawyers with no connection to the tort litigation, led by Elizabeth Cabraser and Sam Issacharoff, proposed a settlement that would put a four year hold on any Roundup litigation against Bayer, prohibit punitive damage claims against Bayer, and set up a secret science panel.

That proposal was rejected by a federal judge sitting in San Francisco – U.S. District Court Judge Vince Chhabria.

The settlement lawyers have come back with a revised $2 billion proposal. 

Earlier this week, Judge Chhabria said that “in addition to counsel for the plaintiffs and the proposed class, anyone who has filed an opposition brief to the motion and has not since withdrawn that opposition will be permitted to participate in oral argument.” 

“Those who have submitted an amicus brief accompanied by a request to appear that has been granted by the Court may also participate in oral argument,” the Judge said.

That means it could be a long hearing on May 19.

The settlement lawyers have hired Columbia Law School Professor John Coffee to make the argument that their settlement offer “will save lives.”

On the other side of the argument, tort lawyers like Arthur Bryant and his colleagues at Bailey & Glasser in Oakland, California argue that, “this settlement will kill people.”

“It will allow Monsanto to keep manufacturing and selling deadly Roundup products, lie to the public about the horrifying fatal disease they cause, avoid paying punitive damages to all of the class members — including those exposed in the future — and be able to calculate the relatively small amount it will have to pay each of its future victims as a cost of doing business while it continues this course of conduct as long as it likes,” Bryant wrote. “No class action settlement has ever done anything like that. No class action settlement ever should.”

Professor Coffee is the lightning rod in the case. 

He comes to the table as the author of Entrepreneurial Litigation: Its Rise, Fall, and Future (Harvard University Press, 2015).

Coffee has testified in numerous class action cases, generally on class certification and settlement issues, including in Amchem Products, Deepwater Horizon, and the diet drugs litigation.

“I have written at length about mass tort litigation and have generally taken a position that is skeptical of the use of the class action device to resolve the often intractable problems at issue in mass tort cases,” Coffee says.

In his book, Coffee’s skepticism runs deep. 

He writes that “critical decisions in some fields, most notably mass torts litigation, affect so many and potentially so dramatically that the litigation is inherently ‘public’ in character.”

“Such decisions require a level of transparency and political accountability that they do not receive in private litigation,” Coffee writes. “Particularly when defendants are under severe financial pressure, they may offer financial rewards to class counsel that will enrich them beyond the dreams of avarice. When these conditions are present, it is reckless to rely idealistically on the private attorney general concept.” 

“Put differently, a settlement resolving the rights of future claimants with regard to asbestos, tobacco or any similar mass tort claim might be appropriately approved by a public agency — after much study and subject to public scrutiny — but to entrust the same decision to a conflicted plaintiff law firm — operating in a much less transparent system — invites corruption. As Lord Acton knew, power corrupts. Because class counsel has great discretionary power at the settlement stage, it is correspondingly vulnerable to corruption.”

Despite this skepticism expressed in a book written in 2015, Coffee in 2021 favors resolving the Monsanto class action litigation with this class action settlement. 

Coffee in 2021 twists the kaleidoscope and sees a different picture.

“Class actions often resemble the kaleidoscope in that, when one twists the dial, an entirely new pattern emerges,” Coffee wrote in his brief to the court. “That has happened in these negotiations, and the new settlement looks entirely different from the former one that this Court viewed skeptically.”

“Above all, this settlement will save and extend lives, as well as award significant financial compensation – which will not cost class members any attorney’s fees,” Professor Coffee writes. “Although objectors assert that the settlement agreement binds ‘future claimants,’ this is another mischaracterization. The settlement agreement does not apply to persons who had not been exposed as of February 3, 2021, and it allows all class members to re-enter the tort system and sue defendants – deprived of only their claim for punitive damages and delayed for some period that cannot exceed four years. It thus avoids the overreaching of Amchem Products – which released all future claims under its settlement – and similar cases in which courts have rejected the settlement.” 

“Also, the settlement agreement not only seeks outreach, but it provides the means to educate the class so that they can make an informed choice either way – to stay in the class or to opt out. To be sure, it does deny class members the ability to seek punitive damages — unless they opt out during the five months of the class notice period — but, as objectors constantly ignore, there is no right to punitive damages. Even if available, such damages might be much harder than usual to obtain in this case where the scientific evidence remains a subject of controversy – thus arguably undercutting any inference of deliberate misconduct. Finally, this case is the first step and not the last step. Class counsel hopes and anticipates that this settlement will be extended after the initial settlement period to continue its public health and compensation campaign.”

Plaintiffs’ lawyers Gerson Smoger and Steven Bonson argue that Coffee’s brief should be stricken from the record.

“Although (Professor Coffee) is no doubt a legal expert, he rarely opines on the law, but rather primarily delves into areas for which he has no underlying expertise, such as oncology, toxicology, demographics, and economics – topics he is not qualified to render opinions on pursuant to Rule 702 (the rule governing testimony by expert witnesses),” Smoger and Bonson write. “What makes this particularly significant is that class proponents cite Professor Coffee’s declaration 24 separate times in their reply brief as if it really contains evidence and truly has probative value. It does not.” 

“To the extent Professor Coffee offers facts, he offers none that he can testify to with personal knowledge. To the extent he offers opinions, he offers opinions that he is not entitled or qualified to make. Ultimately, the purpose of a declaration is to offer evidence in writing that one can testify to if in court. There is virtually nothing in his declaration that Professor Coffee could testify to if put on the stand. It should be stricken.”

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