(CN) — BayerAG will pay $10 billion to resolve a raft of litigation over its herbicides, including claims that its popular weed killer Roundup causes cancer.
The settlement will bring closure to an estimated 75% of claims filed by 125,000 people who attribute their non-Hodgkin lymphoma to Roundup use, as well as those who have hired attorneys but have not yet filed lawsuits.
The $10.1 billion deal is the fruit of more than a year of tough negotiations with dozens of law firms. It involves separate agreements with each firm, and clients will receive differing amounts.
The total figure devotes $8.8 to $9.6 billion to settle current litigation and any unresolved claims, and creates a separate class of future plaintiffs who have used Roundup and may develop some form of non-Hodgkin lymphoma in the years ahead, setting aside $1.25 billion to address their potential claims.
“I’m very pleased for my clients that after a very long and hard-fought battle that we can bring them some peace of mind for what they’ve been through,” attorney Jennifer Moore said by phone Wednesday. Moore, founding partner of Moore Law Group in Louisville, Kentucky, tried the first federal Roundup case in San Francisco last year.
The German pharmaceutical giant inherited the legal troubles of Roundup manufacturer Monsanto when it purchased the agrochemical company for $63 billion in 2018. As product liability lawsuits rose by the thousands, it faced mounting pressure to negotiate a settlement.
U.S. District Judge Vincent Chhabria, who oversaw hundreds of Roundup lawsuits as part of a federal multidistrict litigation (MDL), ordered the parties into private mediation in May 2019. He appointed Kenneth Feinberg, a mediator who famously administered the victims funds arising from the 9/11 World Trade Center attacks and the 2010 BP oil spill in the Gulf of Mexico, to run the negotiations.
A portion of the $1.25 billion for prospective plaintiffs will be used to create a panel of experts who will determine whether Roundup is connected to non-Hodgkin lymphoma, and how much.
“The Class Science Panel will determine whether Roundup can cause non-Hodgkin lymphoma (NHL), and if so, at what minimum exposure levels,” Bayer said in a statement.
The panel’s work is expected to take years, and future class members — should Chhabria approve the $1.25 billion — will not be able to proceed with claims against Roundup or seek punitive damages until the panel makes its determination.
Should the panel find no causal connection, class members will not be able to claim otherwise in subsequent lawsuits against Bayer. The same goes for the opposite conclusion — if the panel does find a link, Bayer will not be able to argue differently.
The World Health Organization’s International Agency for Research on Cancer deemed glyphosate, the active ingredient in Roundup, a probable human carcinogen in a report released in 2015, a declaration that fanned the flames of debate over Roundup’s safety. Monsanto condemned the IARC report, pointing to regulatory bodies in the United States, Canada, the European Union, Japan, and Australia that reached a contrasting determination on glyphosate.
Monsanto, now Bayer, has clung to the U.S. Environmental Protection Agency’s multiple determinations that glyphosate poses no risks to humans, and on Monday, U.S. District Judge William Shubb in Sacramento ruled it would be misleading for Bayer to put a cancer warning label on bottles of Roundup sold in California given scant scientific evidence pointing to its carcinogenicity.
While Bayer has been holding out for a win in court, it had thus far suffered three staggering losses in pivotal bellwether cases over whether glyphosate caused consumers to develop non-Hodgkin lymphoma.
In the first, a San Francisco jury in 2018 awarded Bay Area groundskeeper Dewayne Johnson $289 million, after finding glyphosate likely caused his cancer and that Monsanto deliberately failed to warn the public about the risk. That verdict was reduced to $78.5 million by a trial judge.
In March 2019, a federal jury awarded Sonoma County resident Ed Hardeman $80 million in punitive damages, finding Roundup likely caused his non-Hodgkin lymphoma. U.S District Judge Vincent Chhabria later found the award excessive and reduced it to $20 million.
The amounts were reduced because the U.S. Supreme Court has placed constitutional limits on extremely large punitive damages awards.
The settlement does not apply to these three verdicts, which have all been appealed. The Ninth Circuit recently heard oral arguments in the Johnson case.
In its statement Wednesday, Bayer said it weighed the growing number of cases alongside the potential for 20 more trials per year with possibly more unfavorable jury verdicts. The company determined the cost of more litigation would substantially surpass the settlement amount.
Attorney Aimee Wagstaff, who represented Hardeman alongside Moore in 2019, said by phone Wednesday that the settlement resolves claims from 7,000 clients. She also said it was important to bear in mind the uncertainty wrought by the Covid-19 pandemic.
“I believe my clients who are involved in this resolution will have a very fair value put to their cases,” said Wagstaff, a partner with Andrus Wagstaff in Colorado. “You need to view this in light of the current situation and access to the court. A couple months ago, courts came to a screeching halt and we don’t know when trials will start again. It’s a very fair settlement for the people participating.”
There are still about 25,000 of claims from people who have not agreed to participate. “The settlement amounts discussed were not adequate,” attorney Paul Stoller with Dalimonte Rueb Stoller LLP in Phoenix told Courthouse News on Wednesday. “They have a significant amount of litigation ahead of them. They’re still selling this product and it’s continuing to cause harm and that’s a problem.”
Fletch Trammell with Trammell P.C. in Houston said the amounts being offered to his clients were likewise unworkable. “The average medical liens are about $30,000 for non-Hodgkin lymphoma, so these cases are going to require a substantial settlement fund to fairly and effectively resolve,” he said. “We are committed to litigating these cases we are delighted to be doing it and we are happy to try cases for as long as it takes.”
Trammell represents 5,000 clients not involved in the settlement. Most of his clients’ complaints were filed in St. Louis, where Monsanto is headquartered.
He also has two pediatric cases filed in San Francisco state court last week. Daniel Jimenez and Nahid Murtaza filed a claim on behalf of their child, Noor Jimenez. Destiny Clark also filed a claim on behalf of her son Ezra.
Trammell said he plans to file a motion for preference in those cases, which is a plaintiff right under California law. “In California it is mandatory that injured plaintiffs under 14 get to go to trial under four months,” he said. “We’re going to figure out how to have a jury trial in this environment.”
He believes there are more children who developed cancer after being exposed to Roundup. “We are actively investigating California children exposed to Roundup either in play at parks or play at school or play in their yard who developed non-Hodgkin lymphoma,” he said.
The agreement includes no admission of liability and no changes to the Roundup label.
Wednesday’s settlement announcement also resolves litigation related to the herbicide dicamba, which was developed by Monsanto in response to the trend of weeds becoming resistant to glyphosate.
Scientists at Monsanto genetically engineered soybean and cotton seeds that were resistant to dicamba so when farmers planted those seeds, they could be sure that when they sprayed dicamba, it would only kill plants without the genetically engineered resistance. But neighboring farmers claimed their crops were damaged by dicamba drifting onto their adjacent fields and orchards.
On June 3, the Ninth Circuit vacated the EPA’s approval of dicamba, saying the agency failed to properly assess the risks of drift damage stemming from its widespread chemical use.
Bayer will pay $400 million to farmers who claimed their crops were damaged from dicamba. The multidistrict litigation in the Eastern District of Missouri involves crop damage claims from 2015 to 2020. To collect their share, claimants must submit evidence of crop yield damage due to dicamba. Co-defendant BASF will be expected to contribute to the fund.
The case of Missouri peach farmer Bill Bader is not included in the settlement as his case has already gone to trial, resulting in a $265 million verdict.
Finally, Bayer will pay roughly $650 million to resolve cases claiming it polluted waterways throughout the United States with carcinogenic polychlorinated biphenyls, or PCBs, which it stopped making in 1977. It also struck a separate deal with attorneys general in New Mexico, Washington state, and the District of Columbia to resolve PCB claims for $170 million.
“For decades, Monsanto manufactured and marketed PCBs, despite knowing the tremendous risk that PCBs pose to fish, wildlife and people,” Washington state Governor Jay Inslee said in a statement. “This settlement holds Monsanto accountable for its actions and will help us address the legacy PCB pollution in our waters, fish, lands and air.”