Tag: Lawsuits

Sour Grapes

 

Legal judgments in lawsuits against the makers of Roundup herbicide continue accumulating in the plaintiffs’ favor, with the latest one entailing an award of $2.05 billion to a married couple who alleged that they each contracted non-Hodgkin lymphoma (NHL) from years of using the herbicide in their home garden. As in many lawsuits, high dollar amounts are likely to come down a great deal in the final settlement, and most of the money will end up in the hands of lawyers, not the plaintiffs.

 

Glyphosate is the active ingredient in Roundup and similar generic herbicides, and it is glyphosate which the plaintiffs in thousands of lawsuits around the country are alleging is linked to their cancer. Meanwhile, glyphosate continues to be readily available without label warnings to home gardeners as well as professional landscapers and farmers since the Environmental Protection Agency (EPA) has not ruled it is a carcinogen. European environmental and health organizations have ruled glyphosate is a probable carcinogen, differing from their American counterparts because they reviewed independent scientific studies instead of regulatory studies, many of them funded by agribusiness.

Wilted thistle
Welted thistle (Carduus crispus) possesses some fine qualities, including pretty flowers as seen here, but most people consider it a weed. Photo by dae jeung kim.

While United States government agencies continue to tilt the scales in favor of agribusiness, the courts appear to have no such bias. Consumers in that case have little recourse other than to seek compensation through the courts for their pain and suffering, which they allege were caused by the makers of Roundup (first Monsanto, and currently Bayer) and other purveyors of glyphosate herbicides. Consumers who are still healthy and use herbicides might want to exercise caution by looking for other options, though the only way they would know that is through their own research or by word of mouth, since there continue to be no cautionary statements about the risk of cancer on the label of glyphosate products the way there are for instance on cigarette packs.

Bottles of vinegar at a supermarket
Bottles of vinegar at a supermarket. Safer to use than horticultural vinegar, this more easily available common household vinegar may be a better option for casual users who do not require a heavy duty herbicide. Photo by Ms angie gray.

 

A safer herbicide option is vinegar. Ancient cultures derived vinegar from soured grape wine, but since it can be made from anything that produces ethanol, today most of it is sourced from corn, a cheap source. Unlike glyphosate, which migrates to the roots of affected plants, vinegar only burns the tops, meaning gardeners will have to reapply it when the weed sprouts new growth. Also unlike glyphosate, vinegar does not damage soil fertility with long term use. Damage to soil fertility is another effect of glyphosate that the manufacturers dispute even though some scientific researchers have upheld the observations of the effect by attentive farmers and gardeners.

Gardeners will be disappointed in the weak effect of using the vinegar commonly sold in grocery or home improvement stores, and that is because it is only a 5 to 7 percent solution of acetic acid in water meant for pickling food or cleaning surfaces, not killing weeds. For home gardeners, the most effective vinegar for killing weeds that is appropriately labeled as such, with accompanying safety warnings, is 20 to 30 percent acetic acid. Probably by reason of the low popularity of strong vinegar and the danger for casual users in believing it is relatively harmless, it appears to be available online only, not in stores. Vinegar that strong, while still mostly water, is potently acrid stuff which can burn a user’s mucous membranes, eyes, and skin, and may corrode hard surfaces and harm any small animals, such as toads, living in a garden. Test a small area first if there’s a chance overspray could affect something like bricks in a walkway. The best that can be said is it’s a good thing weeds are outside in the open air. Spraying strong vinegar in the garden may be unpleasant for the applicator and those in the vicinity and should be done with caution, but unlike using glyphosate, there’s less risk of serious damage to the gardener and the garden.
— Izzy

 

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It Grows without Spraying

 

A jury at San Francisco’s Superior Court of California has awarded school groundskeeper Dewayne Johnson $289 million in damages in his lawsuit against Monsanto, maker of the glyphosate herbicide Roundup. Mr. Johnson has a form of cancer known as non-Hodgkin’s lymphoma, and it was his contention that the herbicides he used in the course of his groundskeeping work caused his illness, which his doctors have claimed will likely kill him by 2020. Hundreds of potential litigants around the country have been awaiting the verdict in this case against Monsanto, and now it promises to be the first of many cases.

WEEDING SUGAR BEETS NEAR FORT COLLINS. (FROM THE SITES EXHIBITION. FOR OTHER IMAGES IN THIS ASSIGNMENT, SEE FICHE... - NARA - 553879 (cropped)
Migrant laborers weeding sugar beets near Fort Collins, Colorado, in 1972. Photo by Bill Gillette for the EPA is currently in the National Archives at College Park, Maryland. Chemical herbicides other than Roundup were in use at that time, though all presented health problems to farm workers and to consumers. Roundup quickly overtook the chemical alternatives because Monsanto represented it, whether honestly or dishonestly, as the least toxic of all the herbicides, and it overtook manual and mechanical means of weeding because of its relative cheapness and because it reduced the need for backbreaking drudgery.

 

Monsanto has long been playing fast and loose with scientific findings about the possible carcinogenic effects of glyphosate, and the Environmental Protection Agency (EPA) currently sides with Monsanto in its claim that there is no conclusive evidence about the herbicide’s potential to cause cancer. In Europe, where Monsanto has exerted slightly less influence than in the United States, scientific papers have come out in the last ten years establishing the link between glyphosate and cancer. Since Bayer, a German company, acquired Monsanto in 2016 it remains to be seen if European scientists will be muzzled and co-opted like some of their American colleagues.

 

Empty Glyphosate (Herbolex) container discarded in Corfu olive grove
The intensive use of glyphosate herbicide to remove all ground vegetation in olive groves on Corfu, a Greek island in the Ionian Sea, is evidenced by the large number of discarded chemical containers in its countryside. Photo by Parkywiki.

The scope of global agribusiness sales and practices that is put at risk by the verdict in Johnson v. Monsanto is enormous. From the discovery of glyphosate in 1970 by Monsanto chemist John E. Franz to today, the use of the herbicide has grown to the preeminent place in the chemical arsenal of farmers around the world and has spawned the research into genetically modified, or Roundup Ready, crops such as corn, cotton, and soybeans. There are trillions of dollars at stake, and Monsanto and its parent company, Bayer, will certainly use all their vast resources of money and lawyers to fight the lawsuits to come.

Because scientists have found traces of glyphosate in the bodies of most people they have examined in America for the chemical over the past 20 years as foods from Roundup Ready corn and soybeans spread throughout the marketplace, they have inferred it’s presence is probably widespread in the general population. That means there are potentially thousands of lawsuits in the works. Like the tobacco companies before them and the fossil fuel industry currently, agribusiness giants will no doubt fight adverse scientific findings about their products no matter how overwhelming the evidence against them, sowing doubt among the populace and working the referees in the government.
— Izzy

 

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Something for Nothing

 

“. . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries . . .”
― an excerpt from Article I, Section 8 of the United States Constitution.

Recently the pharmaceutical company Allergan cut a deal with the St. Regis Mohawk Tribe of upstate New York to hold the patent for one of its drugs in order to protect the company from patent challenges. The reasoning behind the deal is that since Native American tribes have sovereign immunity from some types of lawsuits under the 11th Amendment to the Constitution, Allergan is protecting itself from expensive and sometimes unwarranted litigation relating to its patent. In return, the St. Regis Mohawk Tribe will receive millions of dollars up front, and millions more in royalties. Since this is a new type of arrangement, it’s unclear how well it will hold up in court.


Collection of United States patents granted to Thomas A. Edison, 1869-1884 (1869) (14570066720)
Illustration for an 1881 patent granted to Thomas Edison for an improvement to the incandescent light bulb he had first patented in 1880, itself an improvement built on the work of Canadian inventor Henry Woodward. Edison collected 2,332 patents worldwide, many of them for incremental improvements such as the one pictured here.

 

Patent infringements and patent challenges are nothing new, but with the explosion in technical innovations, new drugs, and medical devices in the past thirty years or so, the amount of infringement and challenge cases in the courts have exploded as well. Widespread patent trolling is a new phenomenon, tying up court dockets with often tenuous claims by some patent holders that their patent rights have been violated by another party.

The troll in this circumstance is usually an affiliation of lawyers sometimes known as a Non-Practicing Entity (NPE), which does not make or sell anything, but collects patents for the leverage that gives them in either extracting (extorting) licensing fees or lawsuit settlements from other parties. The patents used suit the purpose because they are overly broad and general, leaving plenty of room for interpretation by the courts, and the victims are often small to medium sized businesses which can’t afford the millions in lawyers’ fees and court costs it would take to defend themselves, instead choosing the easier and cheaper route of ponying up the licensing fee to the troll.

It’s hard to find fault with the St. Regis Mohawk Tribe for agreeing to the deal with Allergan. Native American tribes are often poor, their reservations pushed onto marginally productive land, and if they can take advantage of their status as sovereign nations within the United States to make some money, then more power to them. That same sovereign nation status, after all, has usually proved a mockery as European immigrants violated treaty after treaty with the Native Americans in pursuit of land and natural resources, taking what they liked with military force if words would not suffice.


Allergan, on the other hand, is doing what American companies seemingly do best, which is to cleverly exploit a loophole in the system. Whether Allergan is protecting itself from trolls or planning on doing the trolling itself from its newly purchased protected perch, that is yet to be seen. Large companies, such as Apple, can be both targets and perpetrators, though as perpetrators it’s often in the sense of patent infringement rather than trolling.

 

Self-operating napkin (Rube Goldberg cartoon with caption)
This cartoon of a “self-operating napkin” machine by Rube Goldberg originally appeared in the September 26, 1931 issue of Collier’s Magazine.

There’s plenty of gray area involved, and that’s where legislators need to step in to more clearly define the lines and reduce the amount of trolling lawsuits. Congress has acted in the past several years by changing the laws in favor of genuine innovators and against NPEs. More needs to be done, such as making the loser in a lawsuit pay the legal fees of both sides if the judge determines that one side has acted with intent to harass and extort the other.

This film of less than two minutes demonstrates Wallace’s endless enthusiasm for Goldbergian contraptions, much to the dismay of his dog, Gromit.

Some states have enacted such legislation, but where the case gets decided in a federal court, such as would be the situation should Allergan get challenged or challenge another party, the proceedings are not as clear due to fluid interpretations of the 11th Amendment. It appears that besides tightening up the rules governing patents, the next step is for Congress and the States to clarify the 11th Amendment to take away the sovereign immunity loophole. It’s unfortunate that Native American tribes would be denied a source of revenue, but patent parking really is a shady deal that needs to be stopped before it goes too far, similar to what has happened with the entrenchment of offshore tax havens for corporations.
― Techly

 

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