Bayer AG CEO Werner Baumann can be required to provide testimony in ongoing Roundup litigation despite efforts by Bayer to block such action, according to a recent court order.

A judge in Arkansas ruled that lawyers for plaintiffs in the litigation may travel to Germany, where Bayer is based, and take deposition testimony from the executive to be used as evidence.  The judge directed Baumann to sit for the questioning within 90 days. The order is a first in the sweeping Roundup litigation, which began in 2015.

Baumann was instrumental in driving Bayer to buy Monsanto in 2018 for $63 billion, and he has been the public face for the company’s continued insistence that Monsanto’s Roundup, and other glyphosate-based herbicides, are not carcinogenic.

The plaintiffs’ lawyers say it is these representations by Baumann and others that open up Bayer to allegations of “fraudulent concealment,” and is part of the reason they want to depose him. The evidence and trials held to date have focused on scientific studies that mostly predate the acquisition, as well as internal Monsanto documents and other records, but have not explored corporate actions by Bayer.

Lawyers for Bayer sought a protective order preventing the deposition, and on Thursday asked the judge to reconsider his ruling, saying reconsideration is needed to prevent a “miscarriage of justice.” The company said additionally that if the court will not reconsider, it wants the deposition conducted “in accordance with the Hague Convention.”

Diagnosed at 43

More than 100,000 people have sued Monsanto alleging the company’s herbicides cause non-Hodgkin lymphoma (NHL) and that Monsanto knew about, but covered up, the cancer risk of its products.  Bayer said in 2020 it would spend more than $11 billion to try to settle the claims, and has since earmarked even more money. The company has also said it will remove glyphosate herbicides from the US consumer market in 2023.

Despite the settlement efforts, roughly 30,000 plaintiffs continue to pursue claims that Roundup exposure caused them to develop cancer. Bayer faces a long line-up of new trials over the next several months and into next year. One is currently underway in St. Louis, Missouri.

Baumann and other company officials maintain there is no valid evidence the products do cause cancer, nor any other human health problem, if used as directed. Plaintiffs won the first three trials held while Bayer has won the last four.

The move to depose Baumann was filed in a lawsuit brought in Arkansas by cotton and soybean farmer Cornelius Kilgore and his wife. Along with farming, Kilgore also worked as a landscaper for several years, and maintained and landscaped his own property as well as his relatives’ properties. Overall, he used Roundup for roughly two decades personally and in his job, according to the lawsuit. The chemical frequently got onto his clothes and skin, the lawsuit states.

Kilgore, a father of seven children, was diagnosed with non-Hodgkin lymphoma in 2018 at the age of 43.

“Lead dog”

In ruling in favor of the Baumann deposition request, Drew County Circuit Court Judge Robert Gibson said that Baumann “has made himself the lead dog” in the case.

“As the head of the company, there is no one who better knows what both the left and right hands of the company are doing than Mr. Baumann. It would shock the Court if Mr. Baumann did not have unique or specialized knowledge. Indeed, if there is one person that would be charged with knowing most all things, it would be him,” the judge stated in his order. “There is very little burden for Mr. Baumann to take one day to be deposed on what may be the biggest issue his organization is facing.”

Bayer’s purchase of Monsanto in 2018 took place just as the first Roundup trial was getting underway. After the trial ended in August 2018 with a unanimous jury decision in favor of the plaintiff, Bayer shares plummeted, wiping out billions of dollars of the company’s market capitalization.

Bayer also inherited multiple ongoing lawsuits around the US alleging Monsanto should be held responsible for environmental contamination by cancer-causing polychlorinated biphenyls (PCBs).

The deal was dubbed by the Wall Street Journal as “one of the most disastrous acquisitions in German corporate history.”