Bayer allegedly paid John Carson, a plaintiff who alleged the herbicide Roundup caused his cancer, to appeal a lawsuit against its subsidiary, Monsanto, to the Eleventh Circuit, according to Thursday’s filing in the lawsuit by other plaintiffs with similar claims against Monsanto in separate lawsuits.
Reportedly, Bayer hoped that this appeal of the court’s dismissal of some of Carson’s claims would set a precedent, which could help the agriculture giant in many of the other lawsuits filed against Monsanto and its Roundup herbicide, so it negotiated to enter this “pay to appeal scheme.”
Carson’s Southern District of Georgia lawsuit was allowed to continue, in December, but the court required him to drop some claims. Allegedly, Bayer hoped to have this decision apply beyond Carson’s lawsuit, and thought the ruling in a higher court would save them money in settlements and decisions for other lawsuits.
The third parties’ motion asking to file a letter brief was filed by counsel for Edwin Hardeman, who has an appeal before the Ninth Circuit where Monsanto is the appellant, and Alva Pilliod and Alberta Pilliod, who have an appeal before the California Court of Appeals where Monsanto is the appellant. They claimed that the “‘settlement’ agreement” between Carson and Monsanto “directly impacts the justiciability of this appeal” and that the appeal “is being prosecuted in bad faith.”
These plaintiffs alleged that the pay to appeal scheme is “fundamentally improper,” and that the court should know about it before considering the case. Hardeman and Pilliod specified that they do not wish to intervene in the case, but wanted to provide the information to the court, however, they said they would plan to file an amicus brief if the court does decide to continue hearing the appeal. They asked the Eleventh Circuit to dismiss the appeal, or at least to investigate the parties’ agreement and communications.
Bloomberg reported that Bayer defended its actions, saying that “the company has been completely transparent about its desire to appeal Roundup failure-to-warn cases on federal preemption grounds, and this settlement, which the plaintiff voluntarily agreed to, is an appropriate path for such an appeal.”
Hardeman is represented by Andrus Wagstaff PC and Moore Law Group PLLC. Alva Pilliod and Alberta Pilliod are represented by Baum Hedlund Aristei & Goldman P.C. Carson is represented by Southeast Law LLC and Monsanto is represented by Covington & Burling LLP, Pennington, Hollingsworth, and Bryan Cave Leighton Paisner.
