(CN) — Chemical giant Bayer said it will reconsider a plan to resolve future litigation related to the toxicity of the active ingredient in the weed killer Roundup, after a federal judge expressed concerns about the “propriety and fairness” of a portion of the proposed $10 billion settlement.
U.S. District Court Judge Vince Chhabria issued an order Monday that documented his concerns with the proposed settlement between Bayer, which now owns Roundup manufacturer Monsanto, and individual users of Roundup.
“The court is skeptical of the propriety and fairness of the proposed settlement,” Chhabria said in Monday’s order.
On Wednesday, Bayer said it would revisit the portion of its plan handle future claims from Roundup users concerned the product may have caused their non-Hodgkin lymphoma.
“Bayer remains strongly committed to a resolution that simultaneously addresses both the current litigation on reasonable terms and a viable solution to manage and resolve potential future litigation,” the company said.
To date, three jury trials have resulted in jury verdicts awarding three plaintiffs more than $2 billion in damages. Bayer has appealed all three verdicts.
But the company is eager to resolve future litigation and proposed a settlement that would disburse more than $10 billion to affected users for Roundup. Currently, approximately 100,000 have outstanding claims that Roundup caused them to develop a specific strain of non-Hodgkin lymphoma by covering up science that indicated the chemical was a carcinogen.
Chhabria’s concerns do not involve the proposed settlement for the current plaintiffs. Rather, he expressed skepticism about Bayer’s proposal to remedy future claims, including the appointment of a panel of scientists to decide whether individual cases of cancer were likely caused by the chemical.
“Thus far, judges have been allowing these cases to go to juries, and juries have been reaching verdicts in favor of the plaintiffs, awarding significant compensatory and punitive damages,” Chhabria wrote. “Why would a potential class member want to replace a jury trial and the right to seek punitive damages with the process contemplated by the settlement agreement?”
Also, Chhabria worried a panel of scientists could come to a conclusion that was invalidated by future and better science, but individuals would not be able to act on that new information because the settlement stipulates the panel’s decision is final.
“In an area where the science may be evolving, how could it be appropriate to lock in a decision from a panel of scientists for all future cases?” Chhabria wrote.
The science panel format has been derided by critics, who point out Bayer would be allowed to select two members of the panel.
Bayer — and Monsanto before it — has long maintained Roundup does not cause cancer in humans and any evidence that it does is tenuous to the extent it exists. It won a lawsuit recently that barred California from demanding Bayer put cancer warning labels on bottles of Roundup after a federal court ruled the state did not rely on the breadth of scientific study on the matter.
The U.S. Environmental Protection Agency and other national health agencies do not list glyphosate, Roundup’s active ingredient, as a carcinogen. But the International Agency for Research on Cancer has listed the chemical as a “probably carcinogen.”
Many scientists have accused the IARC of skewing its results to cultivate an appearance of toxicity in glyphosate.
Agricultural advocates say the widely used weed killer is an essential tool for growers, as it is cheap, effective and has low toxicity compared to other herbicides.
Public health advocates say the chemical is harmful to human health and many of the scientific studies that show otherwise are compromised by funding from Bayer and other special interest groups.
Bayer said Wednesday it would support a request to withdraw its proposed settlement and work to address Chhabria’s concerns.