By Joe Fantini September 17, 2020

When Bayer bought Monsanto in 2018, it knew that it was also buying Roundup, a well-known weed killer. Roundup contains the chemical, glyphosate. For years, there had been claims made that this chemical causes a particular kind of cancer, non-Hodgkin lymphoma (NHL). But the rumblings regarding the chemical were not taken seriously. Then and now, the U.S. Food and Drug Administration has never stated that the chemical causes cancer. Roundup has no cancer warnings on the label. It has no warning of any kind.

Big Wins By Plaintiffs Have Caused Settlement Talks

It wasn’t until plaintiffs won three separate lawsuits recently that Bayer began to pay attention. Bayer has recently lost three separate Individual Roundup landmark lawsuits:

Bayer inherited these lawsuits and future litigation when it bought Monsanto in 2018.

This trio of cases marked a departure by juries. Regardless of the FDA’s complacency regarding Roundup, juries have begun to send a clear signal that they will hold Bayer responsible. At the same time, Bayer continues to sell Roundup with no warning labels.

This trio of cases also affects the pending class action against Monsanto and Bayer. The pending settlement is meant to settle all cases against Monsanto and Bayer arising from Roundup.

Details of the Roundup Settlement Deal

In some part, the Coronavirus pandemic provided an opportunity to move toward settlement for all parties. Courts have been closed and those that are open have been moving slowly in terms of processing cases, making settlement more attractive.

In June, 2020, Bayer agreed to settle several current class actions and future actions. The deal culminated in a $10 billion proposed settlement. Although most of the settlement itself does not require court approval, a part of it does. The portion of the settlement that deals with future plaintiffs must be approved.

Bayer wants to be done with Roundup lawsuits. It had been adamant that the settlement be inclusive of all future plaintiffs as well. The proposed settlement covers an estimated 95,000 cases and includes $1.25 billion for potential future claims.

Judge Vince Chhabria’s Reluctance

Judge Vince Chhabria of U.S. District Court in San Francisco has been overseeing the Roundup lawsuits and settlement. In a recent order, Judge Chhabria has indicated his reluctance to approve the settlement. In the order which covered the scheduling of briefing on the proposed settlement, Judge Chhabria clearly stated his reluctance to approve the settlement.  He feels the settlement unfairly limits potential plaintiffs from suing. He has also raised concerns about the creation of a scientific panel to decide whether the key ingredient, glyphosate, causes cancer.

Viability of a Scientific Panel to Determine Liability

The purpose of the proposed panel is ostensibly to resolve the liability issue. The panel is to be composed of scientists and experts who would determine whether the glyphosate causes cancer and if so, at what minimum dose. If the panel determines that the chemical does cause cancer, then Bayer would be precluded from arguing against liability in future cases. Likewise, if the panel determines that it does not, the question of liability would be settled against future plaintiffs.

Judge Chhabria questioned the legality of taking the liability issue out of the hands of the judges and juries, who are the ultimate triers of fact in these cases. The 7th Amendment preserves the right to a jury trial in cases such as these.

In addition, Judge Chhabria questioned locking in a scientific opinion that would be binding into the future. Science evolves. Locking future plaintiffs into the finding of current science flies in the face of fairness to him. “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?”

Unfair to Future Plaintiffs

Judge Chhabria questions whether it is fair to bind future plaintiffs to the proposed settlement. If approved, the settlement would be binding on all plaintiffs, even those who have not yet developed cancer from use of the product. A class of all Roundup users who may get cancer in the future is not a narrowly defined group of people. In a case like this, it is difficult to ensure that the class members are notified and given a meaningful chance to consider their options before deciding whether to opt out of the settlement. Because the product is ubiquitous, he feels that the class of people involved is too broad to be given notice.

Is There Another Option?

The Court held a hearing on July 24, 2020 on whether to approve the settlement. The results of that hearing are not yet known, but given the judge’s skepticism and concerns over the settlement, it is likely that the parties will have to develop a Plan B to resolve the cases.

It is unclear at present what that option might be. Certainly, given the size of recent jury verdicts, Bayer will continue to pursue settlement. The terms of that settlement will likely have to take Judge Chhabria’s opinions into consideration.

We will continue to track and inform all of our clients and the general public about the prospect of settlement in these cases. We also take this moment to pause and consider the health of the public and the role that litigation has historically played in safeguarding that health. Whether you are part of a class action, or have an individual case, we will always protect your interests.