Seventy-five percent of existing Roundup claims are settled. Future claims are also settled…and then they aren’t.

Let me begin with a disclaimer. “[Bayer] Chief Executive Officer Werner Baumann says decisions in the trials [i.e., the plaintiffs’ verdicts in the three bellwether cases] have been made on ‘a very small number of unreliable studies and dubious methodologies.’” https://www.bloomberg.com/opinion/articles/2020-07-08/bayer-s-roundup-settlement-hasn-t-put-its-legal-troubles-to-bed.  This may or may not be true; I haven’t read any of the studies, nor is this my area of expertise.  So I express no opinion on the validity of the plaintiffs’ claim that long term exposure to Roundup, the glyphosate-based herbicide, causes non-Hodgkin lymphoma.  That said, I think it’s fair to presume that Bayer is represented by highly competent counsel with substantial experience defending mass toxic tort litigation; that the defense took full advantage of the fact that the U.S. EPA and the relevant EU agencies have concluded that glyphosate is not carcinogenic (though the WHO disagrees); that the studies supporting the safety of glyphosate were ably presented by the defense’s expert witnesses; and that the plaintiff’s experts were subjected to withering cross-examination.  Despite these substantial pro-defense factors, all three bellwether trials resulted in verdicts for the plaintiffs, and in each case the jury found that exposure to Roundup caused the plaintiff’s non-Hodgkin lymphoma and that Monsanto (subsequently purchased by Bayer, which surely must regret that acquisition) covered up the risks and failed to warn users.  (I discussed noteworthy aspects of the second bellwether trial in https://www.videntpartners.com/blog/2019/roundup-bellwether-trial-concludes-80-million-plaintiff%E2%80%99s-verdict.)

Much of what follows is taken verbatim from https://usrtk.org/monsanto-roundup-trial-tracker-index/, a “blog by Carey Gillam [that] is updated regularly with news and tips about the lawsuits involving Monsanto’s glyphosate-based Roundup weed killer products.” I haven’t put quotation marks around anything quoted from this source, as doing so would result in the awkwardness of frequent double, and sometimes triple, quotation marks, as well as cluttering up the page with citations to the specific article being quoted. I commend the Roundup Trial Tracker to anyone interested in regularly updated, in-depth coverage of this litigation.

Now, to the settlements.  On June 24, 2020, Bayer announced that it would pay between $8.8 and $9.6 billion to resolve roughly 75 percent of the claims by an estimated 125,000 people who allege exposure to Monsanto’s Roundup herbicide caused them to develop non-Hodgkin lymphoma. The deal includes plaintiffs who have retained attorneys with the intent to sue but whose cases have not yet been filed. The plaintiffs covered by the settlement are those signed with the law firms that have been leading the Roundup federal MDL, including The Miller Firm of Virginia, the Baum Hedlund Aristei & Goldman firm of Los Angeles, and the Andrus Wagstaff firm of Denver.  The settlement does not include the three cases won by the plaintiffs, which are currently on appeal.  Lawyers representing more than 20,000 additional plaintiffs say they have not agreed to settle with Bayer, and those lawsuits are expected to continue to work their way through the court system.  The cases covered by the settlement are all individual claims, not part of a class action, and hence it does not require judicial approval.  

At the same time, Bayer announced that it would set aside $1.25 billion that would apply to a purported class action, where the proposed class included anyone exposed to Roundup who had not filed a lawsuit or retained a lawyer as of June 24, 2020, regardless of whether that person had already been diagnosed with cancer that they believed was due to Roundup exposure.  The class settlement proposal was negotiated separately from the main settlement made with the lead law firms referred to in the preceding paragraph.  The three firms representing the purported class have not previously been at the forefront of the Roundup litigation. 

I believe the terms of the proposed class settlement (which is already off the table – I’ll be getting to that) are unique in the history of class action litigation.  It would set a “standstill period” in which plaintiffs in the class could not file new litigation related to Roundup. And it called for class members to release “any claims against Monsanto for punitive damages and for medical monitoring related to Roundup exposure and non-Hodgkin lymphoma (NHL).” 

Crucially, the plan provided that, rather than go forward with more jury trials, a “Class Science Panel” would first be set up to determine the “right answer” to “the threshold question” of whether or not there is a causal link between Roundup and NHL (which Bayer continues to deny).  The plan called for Bayer to pay up to $150 million for the fees and costs of the attorneys involved (!), as well as “class representative service awards” of up to $25,000 to each or a total of $100,000.  The rest of the $1.25 billion would be used to compensate class members diagnosed with NHL for the “effects of the delay” in litigation and to fund research into the diagnosis and treatment of NHL, among other things.

Bayer and the lawyers for the proposed class would work together to select the five scientists to sit on what would be a “neutral, independent” panel, according to the plan.  If they could not agree on the makeup of the panel, then each side would choose two members and those four members would choose the fifth.  The Class Science Panel would determine whether Roundup can cause NHL, and if so, at what minimum exposure levels.  Its determination would be binding on both sides.  The panel would have four years to review scientific evidence but could petition for an extension of time if necessary.  If the panel determined that there is a causal link between Roundup and NHL, then plaintiffs could go forward to seek trials of their individual claims.  But if the panel determined there was no causal connection, then the claims of the class members would be permanently barred and no future Roundup lawsuits could be filed.

The parties filed a motion seeking preliminary approval of the class settlement with the U.S. District Court for the Northern District of California, to be handled by Judge Vince Chhabria, who has been overseeing the 800+ cases in the federal MDL.  In the course of shepherding the cases, Judge Chhabria held a Daubert hearing, listened to days of scientific testimony from both sides, decided there was sufficient scientific evidence of causation for the litigation to proceed, and subsequently presided over the second bellwether trial

As one would expect, several members of the lead law firms who won the three bellwether trials opposed the proposed class settlement plan, saying it would deprive future plaintiffs of their rights while enriching a handful of lawyers who (as noted above) have not previously played a major role in the Roundup litigation.  They need not have worried, however, as Judge Chhabria’s response to the motion was swift and harsh.  In an order issued on July 6, setting a hearing on the motion for July 24, he wrote that “[the] Court is skeptical of the propriety and fairness of the proposed settlement and is tentatively inclined to deny the motion.”  His concerns included the following:

  • Even with the consent of both sides, it’s questionable whether it would be constitutional (or otherwise lawful) to delegate the function of deciding the general causation question…from judges and juries to a panel of scientists.
  • Even if [such delegation] were lawful…it’s unclear how [it] would benefit a class of Roundup users who either have cancer but have not yet sued Monsanto or have not yet developed cancer.  Thus far, judges [in state courts, outside the MDL] have been allowing these cases to go to juries, and juries have been reaching verdicts in favor of the plaintiffs….Why would a potential class member want to replace a jury trial and the right to seek punitive damages with the process contemplated by the settlement agreement?
  • In an area where the science may be evolving, how could it be appropriate to lock in a decision from a panel of scientists for all future cases?  For examine, imagine the panel decides in 2023 that Roundup is not capable of causing cancer.  Then imagine that a new, reliable study is published in 2028 which strongly undermines the panel’s conclusion.  If a Roundup user is diagnosed with NHL in 2030, is it appropriate to tell them that they’re bound by the 2023 decision of the panel because they did not opt out of a settlement in 2020?

Unsurprisingly, the proponents of the class settlement took the hint, and two days later they filed a formal notice of withdrawal of the plan.  “The proposal will be retooled to address legal questions Chhabria raised, including concerns about the creation of a science panel to determine whether glyphosate, Roundup’s active ingredient, is a carcinogen, Chris Loder, a Bayer spokesman, said in [a] statement. No time line was given for when supporters of the class-action mechanism would seek the judge’s approval for a revised proposal.” https://www.detroitnews.com/story/business/2020/07/08/bayer-alter-plan-handling-future-roundup-cancer-suits/112114130/.  “The withdrawal marks a setback in Bayer’s effort to solve once and for all the Roundup litigation headache it inherited from the Monsanto acquisition….‘Bayer remains strongly committed to…a viable solution to manage and resolve potential future litigation,’ the company said in a statement.  Now, it’s working with the plaintiffs on a plan B, and it might not take too long. ‘Although the Court is not aware of any Plan B, it would be surprising if none existed given the stakes involved and the novelty of Plan A,’ Chhabria noted earlier.”  https://www.fiercepharma.com/pharma/bayer-reworks-part-roundup-settlement-after-judge-s-reluctance-for-approval.

I will continue to post from time to time on major Roundup developments.  But again, if you want to keep a close eye on the progress of this litigation, https://usrtk.org/monsanto-roundup-trial-tracker-index/ is the nonpareil source.

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