SAN FRANCISCO (CN) --- A federal judge seemed hesitant Wednesday to green light a $2 billion deal to resolve future Roundup claims that he believes gives short shrift to people who have used the popular weed killer but haven’t developed cancer and may not be diagnosed for many years.
U.S. District Judge Vincent Chhabria said he has serious reservations about numerous aspects of the settlement, proposed in February after the parties withdrew their first attempt amid even greater concerns.
The latest effort comes as Bayer-owned Monsanto is trying to resolve 75% of claims filed by 125,000 people who attribute their non-Hodgkin lymphoma to Roundup use with a $10 billion mass settlement agreement.
At the start of a marathon hearing on the matter conducted over Zoom, Chhabria said the proposed deal divides the class into two groups, or subclasses: those who have been diagnosed with non-Hodgkin lymphoma and were exposed to Roundup but don’t have lawyers, and those who have been exposed to Roundup but have not been diagnosed with lymphoma.
The first group would be entitled to either accelerated payments of $5,000 or if they are willing to submit extensive records, could apply for an award ranging from $10,000 to $200,000, maybe $50 million in extreme cases.
Chhabria seemed primarily concerned about the second group, and he said bluntly that the agreement didn’t seem like a good deal for those people.
While they also retain the right to sue Roundup maker Monsanto for compensatory damages if they get sick, they must relinquish their right to sue for punitive damages, which if the last three jury verdicts were any indication, could leave billions on the table.
In the meantime, the U.S. Supreme Court could rule that the Federal Insecticide, Fungicide and Rodenticide Act preempts any future state failure to warn claims, leaving thousands of people who develop cancer later out in the cold.
“It seems to me that for the people who have not yet been diagnosed with NHL, by far the biggest litigation risk is that the Supreme Court will rule at some point that these state law claims are preempted and they'd have no claim whatsoever,” Chhabria said. “The judge's primary job is to evaluate litigation risk for the class members. It seems the primary risk is you get the rug pulled out from under you by the Supreme Court.”
Lead class counsel Elizabeth Cabraser said there’s no guarantee that future Roundup verdicts will result in such high punitive damages awards. The specter of FIFRA preemption also presents an ongoing hurdle for the class, and a Supreme Court ruling in Monsanto’s favor “could wipe out at least some or not all of tort claims of people exposed to Roundup.”
Meanwhile, the current deal offers valuable benefits, like four years of medical monitoring and diagnostic testing, and the ability to collect from a roughly $1.3 billion compensation fund should they develop cancer in the future.
"We cannot look only at things that are arguably reducible to dollars and cents,” Cabraser said.
“The four years of medical monitoring and possibility of getting some compensation if I'm diagnosed with NHL in two, or three, or four years is not particularity enticing to me,” a skeptical Chhabria said, adding that the class cannot bank on there being enough money in the compensation fund to last very far into the future. Ninety percent will be eaten up in four years, and the latency period for non-Hodgkin lymphoma is quite long, and more than half of the people who contract NHL are diagnosed after the age of 65.
“Why would I possibly sign on to a settlement agreement like that? Why wouldn't I just say look, there’s no indication that there's going to be any money for me?” he asked, hypothesizing about a 51-year-old who sprays Roundup in his yard and develops cancer 15 years later.