Bayer’s Bumps over Mosanto’s Roundup Litigation

Santa Clara, CABayer stated on its website in June 2020 that it will make a total payment of $10.1 billion to $10.9 billion to resolve current and address potential future Roundup Litigation. The $10.1 billion figure will settle about 75 percent of Monsanto’s Roundup lawsuits by an estimated 125,000 people who claim exposure to its weed killer and other glyphosate herbicides caused them to develop the form of cancer called non-Hodgkin lymphoma.

Those 125,000 people cover 95,000 cases and at least 30,000 claims from plaintiffs who have not agreed to join the settlement (however, they can still join). Bayer says it will make a payment of $8.8 billion to $9.6 billion to resolve the current Roundup litigation, including an allowance expected to cover unresolved claims, and $1.25 billion to support a separate class agreement to address potential future litigationfrom Roundup customers who may develop non-Hodgkin’s lymphoma.

Bayer’s deal is one of the largest U.S. civil litigation settlements ever, with “extraordinarily complex” negotiations that produced separate agreements with 25 lead law firms whose clients will receive varying amounts, according to The New York Times.

Bayer’s Bumps

In an August 2020 court hearing, some law firms argued that Bayer was reneging on terms of the settlement. On August 24, plaintiffs attorneys told federal judge Vince Chhabria of the Northern District of California that most of the agreements are now uncertain, reported law.com. Judge Chhabria gave lawyers until Sept. 24 to work on the settlements or present an alternative plan. Monsanto’s attorney acknowledged that no “substantial part” of money had changed hands. Bayer said in a statement that “There are often some bumps in the road in implementing a resolution of this magnitude, but we remain confident that a comprehensive settlement will be finalized and executed. Indeed, while we support the court’s dual track approach over the next 30 days, we are optimistic that the finalization of the settlements over this time will make any further steps on the litigation track unnecessary.”

By mid-September, Chhabira had had enough shenanigans. Bayer said it “has moved forward and finalized several agreements with firms…. we’re also hopefully going to finalize additional agreements in the next several days.” More specifically, the pharma giant said “approximately 1,750 cases are subject to agreements between the company and law firms and another approximately 1,850 to 1,900 cases are in various stages of discussion right now.” Plaintiffs’ lawyer Brent Wisner told the judge it was important to note that there remain a “handful of cases” within the MDL that are not settled yet. But, he said – “We anticipate they will be shortly,” according to US. Right to Know. Judge Chhabira said that given the progress, he will continue a stay of the Roundup litigation until November 2 but that he will start moving cases to trial if they are not resolved by that point.

And in a letter to the judge (September 15), plaintiff attorney David Diamond said that representations made by the lawyers leading settlement talks with Bayer on behalf of plaintiffs did not accurately reflect the situation for his 423 Roundup clients, with 345 have cases pending in the MDL before Chhabira. Diamond cited a “lack” of “settlement-related experiences” with Bayer and he requested that Judge Chhabria advance several of Diamond’s cases forward for trials.

Pandemic Advantageous for Settlement

Of course one major delay is the coronavirus outbreak. With court closed nationwide, the NYT opines this may have pushed the plaintiffs and the company to come to an agreement.

Future Litigation Bump

Bayer said the remaining $1.25 billion was to be set aside to support potential future litigation settlements, but that is up in the air. Judge Chhabira has rejected a proposal by Bayer that requested it would establish a science panel to determine whether or not its glyphosate-based herbicides cause non-Hodgkin lymphoma in rather than having a jury decide.

The Monsanto Papers

Three trials before settlement produced, as part of the discovery process, literally millions of pages of Monsanto’s internal records (now declassified from litigation) are now known as “The Monsanto Papers”. 

They include documents regarding Monsanto’s ghostwriting of an important paper published in the year 2000, how it used that “independent” scientific literature to promote and defend its herbicides, and internal emails (via the law firm Baum Hedlund) about “how to get…people to shout Glyphosphate is non-toxic”. Monsanto’s ghostwriting extended to toxicology journals and the lay media, and it created a purportedly academic website that was really a front to defend Roundup and other Monsanto products. 

Risks in Not Settling  

From Environmental Health News (part of Environmental Health Sciences, a nonprofit, nonpartisan organization):

• The law firms must get a majority of their plaintiffs to agree to the terms of the settlements in order for them to proceed.
• According to the information provided to plaintiffs, settlements are desired now because of a number of risks associated with continuing to pursue additional trials. Among the risks identified:
• Bayer has threatened to file for bankruptcy, and if the company did take that route, settling Roundup claims would take far longer and likely ultimately result in far less money for plaintiffs.
• The Environmental Protection Agency (EPA) issued a letter last August telling Monsanto that the agency won’t allow for a cancer warning on Roundup. That helps Monsanto’s future chances of prevailing in court.
• Covid-related court delays mean additional Roundup trials are unlikely for a year or more.

More about the settlement in November…