After getting pummeled with more than $2.2 billion in damages in the first three trials over its Roundup weed killer, Bayer AG needs to step it up on defense. Enter John Beisner.
The veteran lawyer who has guided companies such as Johnson & Johnson and Merck & Co. in their fights against multibillion-dollar product-liability lawsuits was tapped to advise Bayer executives how to up the company’s game against allegations that Roundup causes cancer.
Leverkusen, Germany-based Bayer faces claims by more than 13,000 consumers who blame its glyphosate-based herbicide for their cancers and an estimated cost of as much as $10 billion to settle the litigation. Beisner may be able to offer new approaches for getting juries receptive to arguments the weed killer is safe, said Jean Eggen, a Widener University law professor.
“This guy is known as a fighter, so I don’t think they brought him in to start settling these cases,’’ said Eggen, who teaches classes about environmental law and mass torts—personal injury litigation against corporations that involves large volumes of claims. “Bayer really believes they are right when they say Roundup doesn’t cause cancer.’’
Bayer said Beisner’s appointment as an adviser to a board committee overseeing the Roundup litigation was designed “to add fresh and independent perspectives’’ on how to handle the cases and mediation sessions aimed at resolving them. Beisner was traveling and unavailable for comment.
The Roundup suits have weighed heavily on the German company after it acquired St. Louis-based Monsanto Co.—which started marketing the herbicide in the 1970s—for about $63 billion last year. Bayer’s stock sunk to its lowest level in more than six years in May after a California jury awarded more than $2 billion in damages to an elderly couple who blamed their cancers on the weed killer they’d be using for more than 30 years. Bayer is appealing that verdict and the other two cases it lost in California.
Bayer’s move to shore up its legal defense --along with securing a key vote of confidence from major shareholder Elliott Management Corp. -- boosted the conglomerate’s shares more than 8 percent in Frankfurt trading on Thursday, their biggest intraday gain since March 2009.
Beisner, who heads the Mass Torts, Insurance and Consumer Litigation Group at New York-based Skadden Arps Slate Meagher & Flom LLP, isn’t the first high-profile lawyer to wade into the Roundup saga. Last month, the San Francisco federal judge who is handling hundreds of suits over the herbicide appointed uber-mediator Ken Feinberg to see if he can work out a settlement.
Feinberg, recognized as one of the leading dispute-resolution gurus in the U.S., was tapped to administer compensation funds for victims of the Sept. 11 attacks and the 2010 BP Plc oil spill in the Gulf of Mexico. He also was hired by Volkswagen AG to oversee compensation for car owners affected by the diesel emissions-cheating scandal.
Feinberg and Beisner, who have served together on several class-action law panels over the last 15 years, shouldn’t have any problem working together, Eggen said. “The overall goal is to come up with some kind of a resolution that’s acceptable to everyone,’’ she added.
Plenty of Beisner’s cases have settled after years of legal trench warfare. The defense specialist quarterbacked J&J’s efforts to fend off allegations that its metal-on-metal Pinnacle hips were defective and left recipients in pain and facing metal poisoning.
After more than four years of trials—including two resulting in a total of more than $1.5 billion in damages handed down against J&J and its Janssen unit—the company agreed to pay more than $1 billion to end the cases, according to people familiar with the deal. The company disclosed in a May filing with the U.S. Securities and Exchange Commission that it created a “settlement program’’ to resolve the cases and all “adverse verdicts,’’ but provided no numbers.
Beisner also served as Merck’s field marshal for combating claims that the company’s withdrawn Vioxx painkiller caused fatal heart attacks and blood clots. The company tried more than a dozen cases over the claims, but ultimately paid $4.85 billion to resolve the majority of them in 2007. Merck also agreed to pay another $950 million and have a unit plead guilty to a criminal charge to settle government probes of its Vioxx marketing.
Mark Lanier, a nationally known plaintiffs’ lawyer who squared off with Beisner in both the Vioxx and Pinnacle cases, said if his old adversary adopts his traditional playbook, Bayer will see the inside of many more courtrooms before settlement talks heat up.
“Beisner is an interesting choice by Bayer,’’ Lanier, whose firm has filed about 500 Roundup cases, said in an email. “He is known for fighting as long as possible before capitulating’’ and calling in settlement negotiators, Lanier said.
Richard Arsenault, a Louisiana-based lawyer who also has tangled with Beisner in the past, describes him as a no-holds barred litigator known for his tenacity. “While we rarely see eye to eye -- his views on mass tort litigation are radically different than mine -- he is a determined advocate on behalf of his clients,’’ Arsenault said in an email.
Mike Brock, a Washington-based product-liability defense lawyer with Kirkland & Ellis LLP who is working with Beisner on defending J&J from claims its talc-based Baby Powder causes cancer, says he’s known for having a steady hand.
“John will not panic over a setback or two in a major litigation,’’ Brock said in an email. “I think clients take a lot of comfort from his ‘we can stand a little heat in the kitchen’ approach to issues that arise in cases.’’
Beisner has had some experience with adverse outcomes in the talc litigation. Last year, a St. Louis jury ordered the world’s largest maker of health-care products to pay $4.69 billion to 22 women who blamed its Baby Powder for causing their cancers. Lanier served as the lead plaintiffs’ lawyer in the case. That award is being appealed.
Beisner also has his work cut out for him in the Roundup cases. After seeing the company poleaxed in the first two trials, disgruntled Bayer investors rebuked the company’s German management at its annual shareholder meeting in April.
The next trial is slated for this summer in St. Louis. Besides being home to Monsanto’s former headquarters, it’s also known for juries that are friendly to plaintiffs.
Beisner, who did his undergraduate studies at the University of Kansas and got his law degree at the University of Michigan, has testified before U.S. House and Senate committees about litigation-reform initiatives.
Beyond his role as a litigation overlord, Beisner has been recognized for figuring out how to resolve thorny cases. He helped Bank of America negotiate a $16.65 billion settlement of a government probe of the bank’s lending practices, according to Skadden’s web site. The deal included a “creative loan modification program intended to help more than 400,000 families’’ keep their homes, the law firm said.
The Bayer case may be even more complex than parsing notoriously dense documents describing the subtleties of mortgage-backed securities, said Carl Tobias, a University of Richmond law professor who specializes in mass-tort cases.
“I think its a Herculean task Mr. Beisner is taking on and he’s going to have nothing but an uphill battle trying to win some of these cases,” Tobias said in an interview. “I would not want to be in his shoes.”
The consolidated Bayer cases are In re: Roundup Products Liability Litigation, MDL 2741, U.S. District Court, Northern District of California (San Francisco).
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