Weedkiller made by Bayer is target of a little-known,
sophisticated ecosystem that includes marketing firms to find
clients
By Sara Randazzo and Jacob Bunge
This article is being republished as part of our daily
reproduction of WSJ.com articles that also appeared in the U.S.
print edition of The Wall Street Journal (November 26, 2019).
In late 2016, a group of plaintiffs' lawyers took the stage at
the year's largest gathering of their colleagues to talk up a
promising new target.
For 30 minutes, they laid out arguments linking the popular
weedkiller Roundup to cancer. An arm of the World Health
Organization had pegged Roundup's main chemical ingredient as a
probable carcinogen the year before, and it was quickly becoming a
focus of the plaintiffs' bar.
Some product-liability lawyers in the audience in Las Vegas were
skeptical. Tying exposure from everyday products like Roundup to
cancer often is less straightforward than linking illness to
medications or medical devices, said Chase Givens, a lawyer with
the Cochran Firm who attended the event. But the presenters' track
records mounting complex cases got the audience's attention.
Three years later, more than 42,700 farmers, landscapers and
home gardeners have sued Bayer AG, Roundup's manufacturer, claiming
the company knew the herbicide posed a cancer risk but failed to
warn consumers. Bayer is contesting the lawsuits and argues that
scientific research and regulatory reviews, including from the
Environmental Protection Agency, prove Roundup's safety.
Behind the surge in lawsuits is a little-known, sophisticated
legal ecosystem that includes marketing firms that find potential
clients, financiers who bankroll law firms, doctors who review
medical records, scientists who analyze medical literature and the
lawyers who bring the cases to court.
Individual plaintiffs can become commodities that are bought and
sold by marketers, with prices based on demand. The more lawsuits
that get filed, the more pressure companies face to settle.
Building up thousands of cases against a single target gains
momentum at conferences like the one in Las Vegas, called Mass
Torts Made Perfect. The twice-yearly shindig is product-liability
law's big stage, drawing more than a thousand plaintiffs' lawyers
and vendors vying for their business over informational panels,
cocktail hours and appearances by celebrities such as Peyton
Manning and Nelly.
The real headliners are the target products. They include
e-cigarettes, baby powder, firefighting foam and birth-control
devices. None have sparked the same level of interest as the
weedkiller.
The Roundup litigation is a big threat to Bayer, the
156-year-old German company that last year acquired Monsanto,
Roundup's inventor and main marketer, for $63 billion. Since the
deal closed, juries have awarded $2.4 billion to plaintiffs in the
first three Roundup cases to go to trial. Bayer's shares have
dropped 27% since the first verdict in August 2018. Bayer is
appealing the three awards, which courts have reduced to $190.5
million. Additional trials have been delayed as the company and
plaintiffs' lawyers discuss settlement.
The herbicide first caught plaintiffs' lawyers' eyes in the
spring of 2015, when the International Agency for Research on
Cancer, a branch of the World Health Organization, deemed Roundup's
active ingredient, glyphosate, "probably carcinogenic" to humans.
Bayer rejected that finding, accusing the group of cherry-picking
studies and ignoring others that regulatory agencies have relied on
to determine Roundup's safety.
Just days after the WHO agency published its findings,
personal-injury law firm Weitz & Luxenberg PC registered the
domain name www.RoundupInjuries.com. Within months, television
advertisements hit the air seeking Roundup users who got cancer.
Before year's end, the first lawsuits were filed.
Lawyers have clamored to sign up Roundup plaintiffs, making it
the top product targeted by mass-tort lawyers and marketing
companies in recent years, according to X Ante, which sells data to
companies on mass-tort advertising. Between January and September,
the weedkiller appeared in 654,280 broadcast and cable-TV
advertisements costing an estimated $77.8 million, an X Ante
analysis of Kantar Media CMAG and Media Monitors data shows. The
number of advertisements is four times that of the next
most-targeted product or drug for mass-tort lawsuits.
Bayer blamed lawyer advertisements for more than doubling the
number of plaintiffs from July to October.
Bayer officials and industry groups say the ability of
plaintiffs' lawyers to rapidly build injury lawsuits burdens
companies with costs and threatens innovation, raising the prospect
that a product declared safe now could be targeted for damages
years or decades later.
Personal-injury lawyers say they advocate for consumers with no
other recourse against big companies -- and that their sprawling
system lets them compete against deep-pocketed corporations.
"We operate just like any other industry," said Mike Papantonio,
a Florida plaintiffs' lawyer who founded Mass Torts Made Perfect.
"One firm may be wonderful on memos, appeals and briefings, another
firm is really good at trying the case."
The U.S. Chamber Institute for Legal Reform, a frequent critic
of the plaintiffs' bar, estimates that in 2016 plaintiffs' lawyers
collected $77 billion in fees on tort cases. Lawyers collect a
percentage of settlements struck between companies and
plaintiffs.
The first step is getting the word out about an allegedly
harmful product, often through TV and online advertisements.
"If you or someone you love used Roundup, and were diagnosed
with cancer, call the number on your screen now," says one TV spot
sponsored by Guardian Legal Network. The ad touts the
multimillion-dollar verdicts and urges callers to file a claim
before it's too late.
Callers to Guardian, one of the largest mass-tort marketing
companies, are routed to call centers around the country. There,
operators run through a list of questions: Has the caller used
Roundup? When, and for how long? When was the caller diagnosed with
cancer, and what type?
Law firms also buy targeted online ads and create social-media
pages, some of which steer users to automated chat programs that
run through similar screening questions.
If hotline callers qualify as potential plaintiffs, the
lead-generation companies hired by law firms send them law-firm
contracts to sign and request their medical records for further
screening. Other lead-generation companies working on spec sell the
leads to law firms. Brokers sometimes stand between a lead
generator and a law firm.
Tennessee resident Sherry Brobeck was browsing Facebook about
two years ago when an advertisement popped up, alerting non-Hodgkin
lymphoma patients that lawyers were evaluating cases for potential
Roundup lawsuits.
"I called them immediately," Ms. Brobeck said. Her husband,
Michael, died from that cancer in early 2010, and she had searched
unsuccessfully for a local lawyer to file a lawsuit. She said the
family's oncologist wondered at the time of her husband's 2009
diagnosis if the cancer arose from the Roundup Mr. Brobeck bought
by the case to clear weeds from land in the Appalachian foothills
they converted to an RV campground.
Ms. Brobeck had struggled to repay debts racked up after her
husband's uninsured cancer treatments and for a time took a second
job as a grill cook. "I didn't have anything to lose," Ms. Brobeck
said of her decision to call.
After giving an operator her basic information, she got a call
two hours later from a lawyer at Louisiana-based law firm Pendley,
Baudin & Coffin LLP. He asked about her husband's illness, she
said, whether she had receipts for their Roundup purchases, and if
she could send a copy of the death certificate. She did.
While Ms. Brobeck worked to pay down property liens brought on
by her husband's medical bills, her lawyers contacted the St.
Louis-based Onder Law Firm, a big personal-injury firm. Onder was
compiling plaintiffs to sue Bayer in St. Louis Circuit Court, which
has attracted thousands of other lawsuits over drugs and medical
devices.
Pendley and Onder struck a deal for Ms. Brobeck's case that is
typical in the personal-injury law business. Onder handles local
matters such as filings and jury selection, and if the case makes
it to trial, Pendley lawyers will argue it, lawyers for the firms
say. If Ms. Brobeck's case settles, Pendley will receive the
majority of the fees, with a smaller amount going to Onder. In
November 2018, Ms. Brobeck became part of a group suing Bayer in a
St. Louis court.
Lead generators can charge law firms for each signed plaintiff,
or a flat monthly rate. The price of a mass-tort client, like any
commodity, rises and falls depending on market interest.
Legal marketers say the price to acquire a signed Roundup client
peaked in August and September at between $3,000 and $6,000 a
plaintiff, after a report that Bayer was close to settling the
litigation. Lower-value cases, by comparison, can cost $100 or less
per plaintiff.
Edward Lott, president of lead-generation firm ForLawFirmsOnly
Marketing, said his law-firm clients have paid around $1,350 each
for "zero-risk" Roundup leads that he will replace with a new
plaintiff if, for instance, their medical records don't back up the
injuries they described over the phone.
"For every big mass-tort attorney out there, it's very much a
science in how much they're paying per lead," said Scott Hardy, a
marketer who charges law firms a flat rate of as much as $15,000 a
month to sponsor case-specific pages on his website,
TopClassActions.com.
Consumer Attorney Marketing Group, one of the largest lead
generators, sends law-firm clients data on how many leads come a
week from their TV, radio and online advertisements. Ads the
company runs for hundreds of law firms send between 20,000 and
25,000 calls a month to a call center in Hermosillo, Mexico. Those
who meet initial standards get a call from a CAMG employee in
California, who walks them through the paperwork needed to sign
with a law firm.
On a recent afternoon, CAMG's Los Angeles call center buzzed
with conversations between operators and potential plaintiffs for
cases related to metal hip implants, asbestos and contaminated
Flint, Mich., water. Between 7,000 and 8,000 callers a month become
signed clients, said company co-founder Steve Nober. The TV ads, he
said, help people connect an injury or disease to its possible
cause. "It's that ah-ha moment," he said.
Roundup has been one of the firm's top campaigns for years, Mr.
Nober said. His data shows Roundup ads have had the most success
airing during daytime reruns of programs including "The FBI Files,"
"M*A*S*H" and "My Wife and Kids," a time of day when people who
have purchased garden or landscaping items are likely to be
watching.
Mr. Lott and other marketers say some law firms will sign up
almost anyone who says they used Roundup and got non-Hodgkin
lymphoma, the primary cancer the litigation is focused on. Others
want only those who used Roundup at least 30 times a year for many
years, or those who used Roundup at work.
Lawyers and marketers describe the mass-torts practice like an
investment portfolio: Firms take on some high-risk cases that are
years from a payday but cheaper to acquire, and pricier ones that
are surer bets and close to a conclusion. If done right, money will
trickle in regularly as cases resolve.
Plaintiffs' law firms may spend $20 million to $30 million
pursuing long-term, complex cases like Roundup, said Mr.
Papantonio, the Florida lawyer who has represented plaintiffs in
large cases such as the BP PLC oil-spill litigation. "You have to
have a war chest so you can run as long as you want to," said Mr.
Papantonio, who estimates his firm represents about 2,000 Roundup
plaintiffs.
Jean McCrea called a number from a TV advertisement earlier this
year that said Roundup could be linked to a cancer her husband has
had since 2013, chronic lymphocytic leukemia. She had heard before
that Roundup could be carcinogenic, but didn't realize CLL, a type
of non-Hodgkin lymphoma, could qualify for a lawsuit.
"We've never done anything like this," the 74-year-old Arizona
resident said of responding to the advertisement from local law
firm Goldberg & Osborne. She told the firm her husband used
Roundup on a half-acre property sprinkled with fruit trees they
used to live on in Madera, Calif. After a few phone calls, she was
sent paperwork to sign.
A lawsuit was filed on the couple's behalf in Arizona in August
and sent to U.S. District Court in San Francisco, where thousands
of federal-court Roundup lawsuits have been centralized.
Retired Californian Brenda Huerta didn't know lawyers had gone
forward with a lawsuit in her name for months after its January
2016 filing, she said, until her sister's friend saw mention of it
online.
Ms. Huerta had been in remission from cancer for about a year
when a call came in 2014 from her husband's health insurer looking
to recoup the more than $1 million it paid to treat her non-Hodgkin
lymphoma. "We were so grateful to them, we said absolutely," the
65-year-old Ms. Huerta said.
A lawyer at the Miller Firm in Virginia told her the cancer
could be tied to years of Roundup exposure. She and her husband had
used it in their yard, as had sod farmers who leased their land in
Tehachapi, Calif.
Companies facing such lawsuits argue the mass-tort machine
encourages the proliferation of claims, which in turn pressures
them to settle, even if they believe their products are safe. They
say the system makes it easy for lawyers to file nearly identical
complaints in rapid succession, with just a few paragraphs changed
about each plaintiff, giving defendants little to go on to gauge
the legitimacy of any given case.
Defense lawyers point to the Vioxx painkiller litigation, in
which court documents show that nearly one-third of plaintiffs who
had filed claims by the time of a $4.85 billion settlement with
drugmaker Merck & Co. failed to meet the criteria necessary to
collect any money.
TV lawyers who pass on clients to bigger firms "are building
inventory without close scrutiny being given to the claims that
they have filed, and hoping that hard work by other lawyers will
lead to a mass settlement that will allow them to cash in," said
Mark Behrens, a partner at Shook, Hardy & Bacon LLP who advises
Bayer on mass-tort issues.
Bayer said it would like to see more transparency around who is
sponsoring and funding plaintiffs' lawyer advertising.
Gary Falkowitz, whose call-center company Intake Conversion
Experts has signed up 50,000 cases for lawyers since 2016, sees it
differently. "Claimants will have an almost impossible job to bring
these claims on their own," he said. "The more people law firms are
representing, the more of a chance you can hold these companies
responsible."
A rumor this summer that Bayer had made a multibillion-dollar
settlement offer, said Mr. Lott, caused the marketer's phone to
ring off the hook, and drove up the price brokers were charging for
leads. Anticipation grew for a payout to be shared by the
advertising law firms, legal funders, trial lawyers and Roundup
users.
"What they hope for is that the Monsantos of the world come in
and say, here's $10 billion, spread it how you like," Mr. Lott said
of the lawyers he sells leads to. "That's what they're looking
for."
Write to Sara Randazzo at sara.randazzo@wsj.com and Jacob Bunge
at jacob.bunge@wsj.com
(END) Dow Jones Newswires
November 26, 2019 02:47 ET (07:47 GMT)
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