Judge questions plan for future Roundup suits
A federal judge in San Francisco has cast doubt on Bayer’s $1.25 billion plan to resolve future lawsuits over Monsanto’s Roundup herbicide with a scientific panel that would determine whether the product causes cancer.
Bayer, Monsanto’s parent company, announced a nearly $10 billion settlement on June 24 of up to 125,000 suits filed against Monsanto by U.S. residents. The plaintiffs alleged they had been diagnosed with cancer or other illnesses after spraying Roundup, the world’s most widely used herbicide, or a related product. The agreement followed three Bay Area trials that resulted in $190 million in damages to four herbicide users diagnosed with cancer.
That settlement does not require judicial review. But Bayer and a group of plaintiffs’ lawyers need court approval for a proposed
$1.25 billion settlement of future suits by cancer patients who have not yet gone to court and by others who have not yet been diagnosed. U.S. District Judge Vince Chhabria said in an order Monday that he had questions about the legality and fairness of the agreement and was “tentatively inclined” to reject it.
Chhabria criticized the central feature of the proposed settlement, the creation of a panel of five scientists chosen by Bayer and plaintiffs’ lawyers. The panel would take up to four years to determine whether Roundup or its active ingredient, glyphosate, causes cancer and, if so, at what dosage levels. The conclusions would be binding on both sides in future suits.
Chhabria said it is legally “questionable” whether the responsibility to determine a factual question in a lawsuit like causation of an illness can be transferred “from judges and juries to a panel of scientists.” He also said it’s unclear how potential future plaintiffs would benefit.
“Thus far, judges have been allowing these cases to go to juries, and juries have been reaching verdicts in favor of the plaintiffs, awarding significant compensatory and punitive damages,” Chhabria said.
A panel’s conclusions might soon be outdated, he said.
For example, Chhabria said, “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 (nonHodgkin’s lymphoma) 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?”
Chhabria said he would make a final decision on the settlement after a hearing on July 24, and surmised that the company and plaintiffs’ lawyers already had a “Plan B” in waiting.
“We appreciate the judge’s order raising his preliminary concerns with the proposed class settlement, which we take seriously and will address at the preliminary approval hearing on July 24,” Bayer said.
Fletch Trammell, a Houston lawyer who says he represents 5,000 victims who have not joined the settlement, said he was relieved by the judge’s comments.
“He clearly sees the proposed class for what it is — a selfserving attempt by Bayer, with the aid of a complicit law firm, to evade liability for its actions,” Trammell said. “The bottom line is that as long as Bayer remains unwilling to compensate Roundup cancer victims fairly, it should have to face them in front of judges and juries.”
Trammell identified the “complicit” law firm as Lieff Cabraser Heimann & Bernstein of San Francisco, one of the plaintiffs’ firms that negotiated the $1.25 billion agreement with Bayer. A partner at the firm was not immediately available for comment.
Chhabria’s order “emphasizes just how sacrosanct the jury system is,” said Brett Wisner, a lawyer for Roundup users whose firm took part in the nearly $10 billion agreement to settle pending cases but was not involved in the proposed settlement of future cases.
The U.S. Environmental Protection Agency has repeatedly found Roundup to be safe for use, most recently in August, and most regulatory agencies in other countries have concurred. But the International Agency for Research on Cancer, an arm of the World Health Organization, said in 2015 that glyphosate was a probable cause of human cancer.
California health officials relied on that finding in 2017 when they added glyphosate to the products covered by Proposition 65, a 1986 ballot measure requiring the state to publicly list chemicals known to cause cancer or birth defects.
In the first case in the nation to go to trial, a San Francisco jury awarded $289 million in damages in 2018 to Dewayne “Lee” Johnson, a former groundskeeper and pestcontrol manager for the Benicia Unified School District, who has been diagnosed with a terminal case of nonHodgkin’s lymphoma after spraying a highly concentrated form of glyphosate for four years. A judge later reduced his damages to $78.5 million.
Other trials have resulted in $25.2 million in damages to Edwin Hardeman, who sprayed Roundup on his property in Sonoma County for more than 26 years, and $86.2 million to Alva and Alberta Pilliod, a Livermore couple who sprayed the herbicide on their properties for more than 30 years. Hardeman’s and the Pilliods’ cancers are in remission.
Bayer has appealed all three verdicts and says the settlement will not affect the appeals.