The Cole County Courthouse in Jefferson City (Annelise Hanshaw/Missouri Independent)
Bayer within a week will lift the veil of secrecy on some documents detailing its campaign to influence public opinion regarding the safety of its herbicide Roundup, attorneys said Wednesday.
In a hearing in Jefferson City before Clifford Cornell, a special master assigned to deal with pre-trial disputes, Bayer attorney Anthony Martinez said records delivered to a plaintiff’s attorney under seal are being reviewed.
The hearing focused on 46 of those records, which attorney Matt Clement contends should be unsealed as an emergency measure to show how the German chemical giant is trying to influence lawmakers and potential jurors.
Clement represents Ronald Jackelen of Somerset, Wisconsin, who claims Roundup gave him non-Hodgkin’s lymphoma. His lawsuit was filed in 2022.
In response to Martinez saying the work to review the documents would be done in a week, Cornell said he would wait for that action before deciding which of the others, if any, should be made public. He must weigh whether the disclosure helps move the case forward or if it would mainly help one side in a legislative debate.
“That is the disharmony I am finding in my own mind,” Cornell said.
Lawyer demands records of Bayer’s Roundup ‘propaganda’ campaign in Missouri
As special master, Cornell makes recommendations to Circuit Judge Daniel Green, who decides whether to accept or reject his reports.
Bayer acquired Roundup — and the liability that may accrue in lawsuits over its health effects — when it took over St. Louis-based Monsanto in 2018. There are approximately 25,000 lawsuits pending in Cole County alleging that Roundup causes cancer and the label failed to warn consumers of the risk.
During the hearing, Clement accused Bayer of spending heavily on advertising to influence both potential jurors in upcoming cases and lawmakers considering a bill to limit Bayer’s liability.
“The danger of their propaganda is obvious,” Clement said. “Monsanto pulled all these cases to a relatively small county. It then flooded the county with propaganda, advertising in the hopes that the jury will be biased against the claims before they even get to the courthouse. They’ve tried to influence legislators and the public needs to know what’s really going on behind the scenes.”
Bayer is not trying to tamper with potential jurors, Martinez said. The advertising, he said, balances the efforts by trial attorneys to attract clients with advertising.
Trial attorneys have been advertising for years seeking clients for Roundup litigation
“To the extent that equals influencing a jury, I’m not sure we’ll ever be able to have a jury in Missouri, because of those advertisements,” Martinez said.
While Jackelen’s case isn’t scheduled for a trial, several other cases are, with three to four trials a year scheduled into mid-2028. Bayer has already been through a 2023 trial where a Cole County jury awarded three plaintiffs $1.56 billion, including $1.5 billion in punitive damages.
The verdict was reduced to $622 million and is under appeal, with arguments scheduled for April 10 in Kirksville.
Bayer has set aside about $16 billion to deal with Roundup lawsuits, including more than $10 billion it has already paid out in settlements and judgments.
In the General Assembly, a bill that passed the Missouri House last month to protect Bayer would make the label mandated by the EPA for all chemicals classified as pesticides — weed killers, bug killers and fertilizers — “sufficient to satisfy any requirement for a warning label regarding cancer.”
The bill is awaiting assignment to a Senate committee.
Since late November, more than $350,000 has been spent on television and radio ads in central Missouri supporting Bayer’s position in the litigation and the legislation.
One group, called the Modern Ag Alliance, has spent about $180,000 on ads promoting the benefits of herbicides with glyphosate, the active ingredient in Roundup. Another, the Protecting America Initiative, has used emotional political messages painting opponents of the legislation as dupes helping China gain control of American agriculture.
Both groups have also spent unknown sums for online ads and direct mail.
Bayer makes no secret it is supporting the Modern Ag Alliance effort but denies having any role in the Protecting America ads.
The Protecting America ads have angered a group of nine Republican state senators who have said their opposition is now stronger.
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During the hearing, Martinez and attorney Chuck Hatfield, also representing Bayer, said Clement doesn’t need to unseal the records to prepare his case. The documents aren’t closed to him, they noted and making them public now is only necessary if he is seeking to influence the legislation.
“He wants to take them over to the Senate and tell the senators about documents that were exchanged in discovery,” Hatfield said. “That’s not a litigation purpose. It is improper to use discovery documents for the purpose of lobbying.”
Cornell asked Clement to state his main reason for filing the motion to open the records.
Clement said the documents would be relayed to lawmakers if Green orders them to be open.
“There’s no doubt that that should be done, and that that’s going to be done if you order these things unsealed,” Clement said. “But that doesn’t mean that there’s not a litigation need, because there may also be another purpose.”
Bayer’s effort to persuade the public that Roundup is safe, while failing to do research on the question, is important because it could be grounds for punitive damages, he said.
Citing records disclosed in another case, he said Bayer told that court “‘we don’t want to do any more studies, because we’re afraid of what they might show.’ Yet, they’re spending millions and millions and millions of dollars to influence the public and to influence the legislature. I can’t think of any evidence that would be more relevant to punitive damages or more important for the public to know than that.”
The timing of legislation does not make the question of which documents should be open an emergency, Martinez said. Clement wants to fight the case in the press, not the courtroom, Martinez said.
“That’s not,” he said, “how discovery is meant to be used.”
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