The jury in San Bernardino County found that Donnetta Stephens’ cancer was not caused by her exposure between 1985 and 2017 to Roundup and its active ingredient glyphosate.

She sued the company for negligence and failing to warn her of the dangers of Roundup.

“Despite everyone’s best efforts, it was impossible to try a coherent case via Zoom with our schedule,” said Fletch Trammell, Stephens’ attorney. “We plan to appeal and look forward to trying the case again in more favourable circumstances.”

Trammell noted similar cases typically took weeks to try and the Stephens case took more than four months due to technical problems and long breaks.

Bayer said the verdict was consistent with the evidence.

The Stephens case is the fifth over Roundup to go to a trial verdict.

Plaintiffs were awarded tens of millions of dollars in the first three but Bayer got its first favourable trial outcome on Oct. 5, which lifted the company’s stock price.

The company said in May it would be more selective in settling cases and had said Stephens’ settlement demands were unreasonable.

Roundup-related lawsuits have dogged the company since it acquired the top-selling brand as part of its US$63 billion purchase of agricultural seeds and pesticides maker Monsanto in 2018.

The company has spent billions of dollars to settle around 96,000 Roundup cases of about 125,000.

Bayer is still pursuing appeals in two of the three verdicts it lost, including one the company hopes will be considered by the U.S. Supreme Court, where a ruling for Bayer could effectively end the Roundup cases.

— Reporting for Reuters by Tom Hals in Wilmington, Delaware.

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Destiny Clark alleged that her son Ezra developed Burkitt’s lymphoma after he was exposed to Roundup which she sprayed on weeds at the family residence.

Clark sued Monsanto, which is owned by Bayer, for failing to warn her of the cancer risks of using Roundup.

The verdict is the fourth involving Roundup and the first in the company’s favour.

Roundup-related lawsuits have dogged Bayer since it acquired the brand as part of its US$63 billion purchase of agricultural seeds and pesticides maker Monsanto in 2018.

Bayer said in a statement the verdict was consistent with decades of science and research showing the safety of glyphosate, the main ingredient in Roundup.

“While we have great sympathy for Ezra Clark and his family, the jury carefully considered the science applicable to this case and determined that Roundup was not the cause of his illness,” the company said.

An attorney for Clark said they will consider an appeal.

“We’re disappointed for the boy and his family,” said Fletcher Trammel. “We have multiple Roundup cases set across the country over the next year and look forward to trying them.”

Two of the other three verdicts are still being appealed by Bayer, including one the company hopes will be considered by the U.S. Supreme Court, where a ruling for Bayer could effectively end the Roundup cases.

The company has settled around 96,000 Roundup cases of about 125,000.

In May, a federal judge rejected Bayer’s plan to resolve future cases, which would have provided compensation but limited the ability of individuals to sue.

— Reporting for Reuters by Tom Hals in Wilmington, Delaware.

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U.S. District Court Judge Vince Chhabria in San Francisco said the proposal “would accomplish a lot for Monsanto,” which Bayer acquired for $63 billion in 2018, and “would accomplish far less for the Roundup users” who are currently healthy (all figures US$).

The agreement would have paused litigation linking Roundup to non-Hodgkin lymphoma (NHL) for four years and would have barred Roundup users from seeking punitive damages once the pause on litigation expired.

In return, users could be eligible for free medical exams and compensation if they were diagnosed with NHL.

The proposed class action settlement was aimed at claims by people who have been exposed to the herbicide and who become sick in the future.

Separately, Bayer has committed up to $9.6 billion to resolve ongoing claims of people who blame glyphosate — the main active ingredient in Roundup — for an existing illness. The company’s CEO told analysts this month that 90,000 existing claims have been resolved and 30,000 are still being negotiated.

The company has said that decades of studies have shown that Roundup and glyphosate are safe for human use. Bayer did not immediately respond to a request for comment on the judge’s decision.

Bayer, which inherited both the Roundup brand and the litigation from its acquisition of Monsanto, said last June its proposed U.S. settlements “have no bearing on litigation in Canada” and the company is “not contemplating a settlement of the Canadian cases related to glyphosate.”

‘No closure’

Bayer has been criticized by consumer advocates for fighting efforts to add a warning label to Roundup or pull it from the herbicide market, which it dominates along with other glyphosate products.

Chhabria had suggested a warning label might provide a way to prevent future lawsuits, which are based on the theory that Bayer failed to warn consumers of Roundup’s link to cancer.

Bayer has called the class action settlement proposal one of the “building blocks” to “provide closure” on the Roundup litigation.

Leslie Brueckner, an attorney with Public Justice, which objected to the proposal, called the ruling important for public health and said the risk of substantial punitive damages might force Bayer to change.

Chhabria’s ruling meant the company faced continued lawsuits, she said.

“So as long as Roundup stays on the market, Bayer will continue to be sued by Roundup victims who get NHL,” said Brueckner. “That means no closure.”

The four-year plan would have grouped potentially millions of residential users and farm laborers in a class and provided them the medical exams and up to $200,000 if they were diagnosed with NHL.

Chhabria’s six-page order cast doubt on the value of the medical exam offer, given the 10-year to 15-year lag time between exposure and potential onset of cancer symptoms.

He also said most claimants could expect $60,000 or less in compensation and that compensation might not be available after the plan expired.

Attorneys for the class said at last week’s hearing that Bayer could extend the agreement and provide additional compensation.

The judge also questioned how healthy users of Roundup could be adequately notified of a settlement that bound them in the future if they develop NHL.

“Mere tweaks cannot salvage the agreement,” Chhabria said.

— Reporting for Reuters by Tom Hals in Wilmington, Delaware.

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Bayer and class action attorneys hope U.S. District Judge Vince Chhabria in San Francisco will give preliminary approval on Wednesday to create a class of people exposed to Roundup who could get sick in the future.

The agreement would provide free medical exams and up to $200,000 in compensation if a class member is diagnosed with non-Hodgkin’s lymphoma, a cancer (all figures US$).

Chhabria in a court filing asked if it was possible to contact the potentially millions of homeowners and farmworkers who have been exposed to Roundup to notify them they were going to be bound by the settlement.

He also wanted to know how he would determine if the compensation was adequate and whether he should evaluate the plan against other options, including Bayer adding a cancer warning label to Roundup, something the company has resisted.

Chhabria noted in his final question that jury trials have gone very well for plaintiffs. Given that, the judge asked why class members should agree to a settlement that requires them to present at future trials a report from a science panel that will spend the next four years determining if Roundup causes cancer.

“The last question is a killer,” said David Noll, a professor at Rutgers Law School.

The company has said decades of studies have shown Roundup and its active ingredient glyphosate do not cause cancer and are safe for human use. Consumer groups and personal injury lawyers have criticized the plan because it prevents lawsuits for four years and bars class members from seeking punitive damages.

Bayer said in a statement that judges often raise questions for parties to address prior to hearings.

“We look forward to working with the court and the parties through the approval process to ensure the class plan is fair to all parties,” the company said.

Chhabria said if his nine areas of concern were addressed at the hearing, a second hearing would be scheduled to deal with smaller concerns.

The company last June agreed to commit $9.6 billion to settle the existing 125,000 U.S.-based claims over Roundup, which is separate from the class settlement aimed at resolving future claims.

Bayer inherited the glyphosate-based herbicide Roundup, and the litigation, as part of its $63 billion acquisition of Monsanto in 2018.

The Canadian arm of Bayer CropScience last June said those settlements “have no bearing on litigation in Canada” and the company is “not contemplating a settlement of the Canadian cases related to glyphosate.”

— Reporting for Reuters by Tom Hals in Wilmington, Delaware.

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Before getting sick, the 78-year-old Sanchez only left home to work on the fabrication line, where cattle carcasses are sliced into cuts of beef, and to go to his church, with its five-person congregation, said his daughter, Betty Rangel. She said no one else got infected in the family or at Bible Missionary Church, which could not be reached for comment.

JBS, the world’s largest meatpacker, denied the family’s application for workers’ compensation benefits, along with those filed by the families of two other Greeley workers who died of COVID-19, said lawyers handling the three claims. Families of the three other Greeley workers who died also sought compensation, a union representative said, but Reuters could not determine the status of their claims.

JBS has said the employees’ COVID-19 infections were not work-related in denying the claims, according to responses the company gave to employees, which were reviewed by Reuters.

As more Americans return to workplaces, the experience of JBS employees shows the difficulty of linking infections to employment and getting compensation for medical care and lost wages.

“That is the ultimate question: How can you prove it?” said Nick Fogel, an attorney specializing in workers’ compensation at the firm Burg Simpson in Colorado.

The meatpacking industry has suffered severe coronavirus outbreaks, in part because production-line workers often work side-by-side for long shifts. Companies including JBS, Tyson Foods and Smithfield Foods closed about 20 plants this spring after outbreaks, prompting President Donald Trump in April to order the plants to stay open to ensure the nation’s meat supply. The White House declined to comment on the industry’s rejections of workers’ claims. The U.S. Department of Labor did not respond to a request for comment.

Tyson has also denied workers’ compensation claims stemming from a big outbreak in Iowa, workers’ attorneys told Reuters. Smithfield workers at a plant in Sioux Falls, South Dakota, also hit by a major outbreak, have generally not filed claims, a union official said, in part because the company has paid infected workers’ wages and medical bills.

Smithfield declined to comment on workers’ compensation. Tyson said it reviews claims on a case-by-case basis, but declined to disclose how often it rejects them. JBS acknowledged rejecting claims but declined to say how often. It called the denials consistent with the law, without elaborating.

Workers can challenge companies’ denials in an administrative process that varies by state but typically resembles a court hearing. The burden of proof, however, usually falls on the worker to prove a claim was wrongfully denied.

The full picture of how the meatpacking industry has handled COVID-related workers’ compensation remains murky because of a lack of national claims data. Reuters requested data from seven states where JBS or its affiliates have plants that had coronavirus outbreaks. Only three states provided data in any detail; all show a pattern of rejections.

In Minnesota, where JBS had a major outbreak, meatpacking employees filed 930 workers’ compensation claims involving COVID-19 as of Sept. 11, according to the Minnesota Department of Labor and Industry. None were accepted, 717 were rejected and 213 were under review. The agency did not identify the employers.

The Minnesota Department of Health said only two meatpacking plants there had significant coronavirus outbreaks: a JBS pork-processing plant in Worthington, and a poultry plant in Cold Spring run by Pilgrim’s Pride, which is majority-owned by JBS.

Tom Atkinson, a Minnesota workers’ compensation attorney who has represented meatpacking workers, estimates up to 100 COVID-19 claims were filed by employees at the Worthington plant.

In Utah, seven JBS workers filed claims related to COVID-19 by Aug. 1 and all were denied, according to the state’s Labor Commission. At least 385 workers at a JBS beef plant in Hyrum, Utah, tested positive for COVID-19.

In Colorado, 69 per cent of the 2,294 worker compensation claims for COVID-19 had been denied as of Sept. 12. Although the state does not break down the denials by industry, a JBS spokesman told Reuters the company is rejecting claims in Colorado and that it uses the same claim-review procedures nationwide.

JBS spokesman Cameron Bruett did not answer the question of whether JBS employees were infected on the job and declined comment on individual workers’ claims. He said the company has outsourced claim reviews to a third-party administrator.

“Given the widespread nature of viral spread, our third-party claims administrator reviews each case thoroughly and independently,” said Bruett.

The administrator, Sedgwick, did not respond to a request for comment. Bruett, also a spokesman for Pilgrim’s Pride, did not respond to questions about infections and claims at its Minnesota plant.

At the JBS plant in Greeley, where Sanchez worked before he died, at least 291 of about 6,000 workers were infected, according to state data. The company, in its written response to the family’s claim, said that his infection was “not work-related,” without spelling out its reasoning. The two sides are now litigating the matter in Colorado’s workers’ compensation system.

Under Colorado law, a workers’ compensation death benefit provides about two-thirds of the deceased worker’s salary to the surviving spouse and pays medical expenses not covered by insurance. If JBS had not denied the Sanchez family’s claim, that would have provided his widow a steady income and paid uncovered medical bills totalling about $10,000, according to his daughter.

“They don’t care,” Rangel said of JBS. “They are all about the big profits, and they are not going to give any money out.”

Mass infections,little compensation

The United Food and Commercial Workers (UFCW) International Union, which represents 250,000 U.S. meatpacking and food-processing workers, said last week at least 122 meatpacking workers have died of COVID-19 and more than 18,000 had missed work because they were infected or potentially exposed.

The U.S. Occupational Safety and Health Administration (OSHA) said on Sept. 11 that it had cited JBS for failing to protect workers at the Greeley plant from the virus. OSHA cited Smithfield this month for failing to protect workers at its Sioux Falls, South Dakota, plant, where the agency said nearly 1,300 workers contracted the coronavirus and four died.

Smithfield and JBS said the citations had no merit because they concerned conditions in plants before OSHA issued COVID-19 guidance for the industry. OSHA said it stands by the citations.

Workers’ compensation is generally the only way to recoup medical expenses and lost wages for work-related injuries and deaths. The system protects employers from lawsuits, with few exceptions, and allows workers to collect benefits without having to prove fault or negligence. But the system was designed for factory accidents, not airborne illnesses.

In response to the coronavirus, governors and lawmakers in at least 14 states have made it easier for some employees to collect workers compensation for COVID-19 by putting the burden on companies and insurers to prove an infection did not occur at work. But most of the changes, which vary by state, only apply to workers in healthcare or emergency services. A similar proposal failed to gain support in Colorado.

Mark Dopp, general counsel for the North American Meat Institute, a trade association that represents meatpackers, said it is difficult to determine where workers get infections given extensive sanitation efforts taken by meat plants and workers’ daily travel to and from the plants.

Tyson in April closed its Waterloo, Iowa, pork-processing plant due to a COVID-19 outbreak. Ben Roth, a local workers’ compensation attorney, said five families of employees who died filed workers compensation claims for death benefits, and all were denied.

He said meat-processing companies have an incentive to deny every claim because admitting they caused even one infection can expose the firms to liability for all workers contracting COVID-19.

“That undercuts the argument that they want to make across the board: that you can’t prove you got it here and not at a grocery store,” Roth said.

Tyson said it follows state laws for workers’ compensation. The company noted that Iowa law states that disease with an equal likelihood of being contracted outside the workplace are “not compensable as an occupational disease.”

In Colorado, Sylvia Martinez runs a group called Latinos Unidos of Greeley and said she knows of more than 20 JBS workers who applied for workers compensation and were denied. Many plant workers are not native English speakers and sought out her group for guidance, she said, adding that many don’t understand their rights and fear being fired. The company’s rejections have discouraged more claims, Martinez said.

“If you deny five or 10, those workers will tell their co-workers,” she said.

‘Who is going to hire him?’

JBS also contested the claim of Alfredo Hernandez, 55, a custodian who worked at the Greeley plant for 31 years. He became infected and was hospitalized in March. He still relies on supplemental oxygen and hasn’t returned to work, said his wife, Rosario Hernandez.

Generally, companies approve claims if it looks probable that an employee was injured or sickened at work, said Erika Alverson, the attorney representing Hernandez. But JBS, she said, is arguing workers could have contracted COVID-19 anywhere.

“They’re getting into, where did our clients go, what were they doing during that time, who was coming into their house, what did their spouse do, was there any other form of exposure?” said Alverson, of the Denver firm Alverson and O’Brien.

A judge will decide the Hernandez case in an administrative hearing. In the meantime, the Hernandez family has only his disability benefits — a portion of his salary — to cover his medical and insurance costs, Rosario Hernandez said.

“We’re getting bunches of bills,” she said.

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The hearing was a contrast to the contentious tone among the parties last month that raised concerns the framework deal might unravel.

Ken Feinberg, who is mediating talks, said his “optimism knows no bounds,” and that he expected the next set of cases scheduled for trial to soon settle.

U.S. District Judge Vince Chhabria in San Francisco kept a stay on litigation until Nov. 2 and asked the parties for a status update at that time.

The parties have binding deals to resolve about 45,000 of the 125,000 filed and unfiled claims, according to attorneys involved. Settlements have been reached with each of the lawyers who took cases to trial.

Bayer, which acquired Roundup with its purchase of Monsanto for $63 billion in 2018, agreed in June to pay around $11 billion to settle the lawsuits, which have pummeled the company’s share price (all figures US$).

The company’s Bayer CropScience arm said at the time its settlements will “apply only to U.S. litigation” and the company is “not contemplating a settlement of the Canadian cases related to glyphosate.”

Bayer’s stock closed down one per cent on Thursday at 54.41 euros (C$84.78). Shares have slumped from a high of around 73 euros since the June settlement announcement.

Chhabria had questioned the fairness of the settlement plan, which proposed using an independent scientific panel to assess whether glyphosate-based weedkillers such as Roundup caused cancer.

Days later, Bayer said it would revise that part of the proposal.

Bayer has said Roundup is safe and important to farmers who use the herbicide in combination with the company’s genetically modified seeds.

In 2015, the World Health Organization’s cancer research arm determined the herbicide to be a “probable carcinogen.” U.S. and the European regulators have determined glyphosate to be non-carcinogenic.

— Tom Hals reports on U.S. and international corporate law for Reuters from Wilmington, Del.

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