Case to Watch: Toxic commercial weedkiller fuels new mass tort

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A logo is seen at the headquarters of agricultural chemical maker Syngenta in Basel, Switzerland January 30, 2020. REUTERS/Arnd Wiegmann

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(Reuters) - As litigation over Bayer AG's Roundup winds down, another widely used herbicide, paraquat, could fuel a new mass tort, with significant potential liability for ChemChina's Syngeta Group and Chevron USA.

Paraquat, currently marketed by Syngenta under the brand name Gramoxone and previously sold in partnership with Chevron, has become more popular in recent years, partly thanks to plants becoming resistant to Roundup.

The chemical is known to be toxic, and is approved by the Environmental Protection Agency only for licensed commercial users. It has been banned altogether across much of the world, including by the European Union, China and Brazil.

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The growing number of lawsuits in the United States focus on an alleged link between chronic exposure to paraquat and Parkinson's Disease, a degenerative brain disease that leads to loss of muscle coordination.

"Chevron sympathizes with families affected by Parkinson’s disease," the company, whose lawyers include Jason Levin of Steptoe & Johnson, said in a statement. "Chevron has not sold paraquat in 35 years, and we do not believe we had any role in causing the plaintiffs' illnesses. We will vigorously defend against the allegations in the litigation."

Syngenta, which is represented by lawyers including Ragan Naresh of Kirkland & Ellis, had no immediate comment. It has previously denied the claims.

The Judicial Panel on Multidistrict Litigation on June 7 created a new MDL for such claims in the Southern District of Illinois, a venue favored by a group of plaintiffs whose lawyers include Mikal Watts of Watts Guerra. As of June 22, 116 lawsuits had been transferred to the MDL, with an additional 10 related cases pending in other federal courts and 31 in state courts.

The venue had been hotly contested, with one group of plaintiffs, represented by lawyers including Ann Saucer of Fears Nachawati favoring the Northern District of California, and another, represented by lawyers including Steven Crick of Humphrey, Farrington & McClain, opposing centralization. The panel said that the Southern District of Illinois was appropriate partly because it is in an agricultural region where paraquat was widely used.

Sarah Doles of Carey Danis & Lowe, who is serving as interim liaison counsel for the plaintiffs, said it was too soon to predict how big the litigation would get.

"I think the science, as it develops throughout the case, will tell us the size of the docket," she said.

Crick also said it was too soon to say, but that he believed the litigation could grow significantly.

"Parkinson's is a fairly common disease," he said. "Paraquat was one of the most used pesticides in the country for a number of years, and it’s still available."

As is typical in product liability MDLs, the lawsuits bring state common law claims, including design defect, failure to warn and negligence. Chief Judge Nancy Rosenstengel has tentatively scheduled the first trial for November 2022.

Martin Estrada, a partner at Munger, Tolles & Olson who represents defendants in MDLs, but is not involved in the paraquat litigation, said the litigation could "snowball," thanks to the "size and significance of the defendants."

"These are deep pockets which may attract more plaintiffs' firms and more plaintiffs," he said.

Estrada added that the success of plaintiffs in the Roundup case, who won large verdicts in early state court trials and have obtained settlements totaling more than $10 billion, are a sign that the litigation could prove "highly lucrative."

There are signs that plaintiffs' attorneys have already taken notice. Lawyer advertising aimed at potential paraquat plaintiffs surged in the early part of 2021, according to a report released earlier this month by research firm X Ante.

Lawyers spent $812,280 on paraquat ads in March and April, compared to $160,600 in January and February, a 406% increase, the firm said, citing data provided by advertising analysis company Kantar Media CMAG. The number of ads related to paraquat in that period correspondingly rose 418%, from 1,957 to 10,131. No other nationwide product liability mass tort showed a comparable rise.

The case is In re Paraquat Products Liability Litigation, U.S. District Court, Southern District of Illinois, No. 21-md-03004.

For plaintiffs: Ann Saucer of Fears Nachawati, Steven Crick of Humphrey, Farrington & McClain, Mikal Watts of Watts Guerra, Sarah Doles of Carey Danis & Lowe and others

For Syngenta: Ragan Naresh of Kirkland & Ellis

For Chevron: Jason Levin of Steptoe & Johnson

Read more: So. District Illinois wins fierce battle for paraquat MDL venue

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Brendan Pierson reports on product liability litigation and on all areas of health care law. He can be reached at brendan.pierson@thomsonreuters.com.