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High court declines to wade into appeal of Roundup verdict

Bayer had counted on a Supreme Court review to shield it from future lawsuits over its product label.

(CN) — The U.S. Supreme Court won’t hear Bayer’s appeal of a jury's finding that Roundup caused a man’s cancer — effectively rejecting the company’s bid to stem the flow of product liability lawsuits over its signature weedkiller.

The high court’s denial, issued without comment Tuesday, sustains a $25 million damages award to a California man who blamed his non-Hodgkin lymphoma diagnosis on years of habitual Roundup use.

In 2019, U.S. District Judge Vince Chhabria oversaw the first federal trial on claims that Bayer-owned Monsanto sold Roundup without a warning label, after which a jury awarded Ed Hardeman $75 million in punitive damages.

The Ninth Circuit upheld the jury’s verdict in 2021, though it agreed with Chhabria that the punitive damages should be reduced to $20 million. Chhabria left the $5 million in compensatory damages intact, bringing the total award to $25 million.

Bayer appealed the case in a bid to overturn the verdict and settle the question of whether Monsanto can be held liable under California law for failing to put a cancer warning label on Roundup when it was prohibited from doing so by the Federal Insecticide, Fungicide, and Rodenticide Act, which says a company cannot put a warning on a product without the U.S. Environmental Protection Agency’s approval.

The justices requested input from the solicitor general on the issue late last year. In her brief, U.S. Solicitor General Elizabeth Prelogar advised the court to reject Bayer’s petition and uphold a lower court’s finding that FIFRA doesn’t preempt state law failure-to-warn claims.

In the meantime, Bayer forged ahead with a plan to reduce its future litigation risk.

In June 2020, the chemical giant agreed to pay $10.9 billion to settle nearly 100,000 lawsuits in which plaintiffs claim Roundup’s active ingredient glyphosate caused them to develop cancer. But Chhabria refused to approve another $2 billion deal to resolve future claims from Roundup users who have not developed cancer but may be diagnosed in the future. In July 2021, Bayer said it set aside an additional litigation provision of $4.5 billion in case the justices refused to hear the Hardeman appeal or issued an adverse ruling.

It has also vowed to remove glyphosate-based products from retail store shelves by 2023 to prevent future litigation, though the company has consistently said that it stands behind Roundup’s safety.

In a statement Tuesday, Bayer said it believes the decision will cause confusion for companies over labeling requirements.

“The company believes that the decision undermines the ability of companies to rely on official actions taken by expert regulatory agencies, as it permits every U.S. state to require a different product label, which conflicts with the clear intent of the ‘uniformity clause’ adopted by the U.S. Congress in FIFRA and similar statutes,” a Bayer spokesperson said. “While this decision brings an end to the Hardeman case, there are likely to be future cases, including Roundup™ cases, that present the U.S. Supreme Court with preemption questions like Hardeman and could also create a circuit split.”

Bayer is still waiting for the Supreme Court to decide whether it will review its appeal in the case of Alva and Alberta Pilliod, who were both diagnosed with cancer that they attributed to decades of using Roundup. The California Supreme Court let an $86.7 million damages award to the Livermore couple stand in November 2021 when it declined to hear the case.

In another setback, the Ninth Circuit ordered the U.S. Environmental Protection Agency last week to redo its evaluation of whether glyphosate causes cancer, slamming the agency's finding that it likely poses no “unreasonable risk” to human health.

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