Medical Monitoring Class Seeks Approval of Separate Counsel in Roundup Case

Some plaintiffs in the multi-district Roundup herbicide litigation against Bayer AG and Monsanto filed a second renewed motion on Monday as part of a request for the court to appoint Fegan Scott LLC as counsel for the “medical monitoring class.” They argued the subclass is not adequately represented by lawyers, who are primarily representing personal injury plaintiffs.

The motion listed plaintiffs Aaron Sheller and Kabe Cane as movants. These plaintiffs claimed that in class-actions and other mass tort situations, the claimants should be separated into current and future categories, and counsel with exclusive loyalties should be chosen to represent named plaintiffs and subclasses.

The defendants, purportedly, have attempted to settle similar claims with attorneys who “simultaneously represent both current and future claimants.” The motion argued that these settlements are “doomed” because conflicts of interest exist. The proposed counsel, Fegan Scott LLC, has allegedly not represented the plaintiffs in the case who have been diagnosed with the disease, so the motion argues the “firm’s interests run exclusively to the Medical Monitoring Class.”

The filing said “it is undisputed that the only plaintiff who was first to pursue, and has exclusively pursued, medical monitoring for a class of persons who have been exposed to Roundup but who have not yet manifested disease is Aaron Sheller and his counsel at Fegan Scott LLC, who filed their original medical monitoring class action complaint in September 2019.”

Sheller has moved to appoint counsel for this subclass on two previous occasions, arguing that the subclass should be allowed to seek monitoring based on an alleged increased risk of developing non-Hodgkin’s lymphoma because of exposure to Roundup. The court previously recognized the diverging interests of the Medical Monitoring Class, but denied the motion because “a conflict was not yet apparent” and there was no cause to think the negotiations would impact future claims.

The plaintiffs claimed that the court’s previous argument is “no longer true,” and that the topic should be reconsidered. The motion cited a proposed settlement where funds would be taken from the medical monitoring class to pay for personal injury claims. “The interests of the Medical Monitoring Class were never adequately protected by subclass counsel during the negotiation or settlement process,” the motion argued.

The motion will be discussed in court in a hearing beginning on September 24.