The Bayer (Monsanto) Roundup Maelstrom
When Bayer purchased Monsanto in 2018, they could not have predicted the legal hurricanes that would follow. Just weeks after the purchase, a jury in California awarded Dewayne Johnson, a groundskeeper at a school where he used Roundup, $289 million. They found that glyphosate in the product caused his non-Hodgkin’s lymphoma and that Monsanto failed to warn consumers of the risk. (Johnson’s award was subsequently reduced to $20.5 million, and the California Supreme Court refused to hear Bayer's appeal of the reduced award.)
A second trial in March of 2019, also in California, resulted in an $80 million verdict for homeowner Edwin Hardeman, who used Roundup on his property for more than 25 years. (This award was reduced to $25.3 million, and again the California Supreme Court declined to hear Bayer’s appeal.)
A scant two months after that, Alva and Alberta Pilliod, who used Roundup for decades and both acquired non-Hodgkin’s lymphoma, were awarded more than $2 billion. This award was reduced to $86 million. Bayer appealed.
Even though Bayer appealed the verdicts, or tried to, thousands of more cases were waiting.
U.S. District Judge Vince Chhabria is overseeing all the Roundup suits filed in federal courts. In September, he warned the parties that, although he put the cases on hold for months to allow negotiations, if they don’t settle the cases, he would move ahead with the trials. Bayer failed to settle its outstanding Roundup cases by Monday, November 2, 2020.
In court again on November 9, Bayer advised the judge that 1,861 of the 3,787 plaintiffs in that litigation had not settled. The judge declined to continue to hold off on hearings, indicating that some trials could soon begin again. Most of the U.S. Roundup cases are in state courts, and they are not subject to any deadlines for settlement. As of early November 2020, there were more than 125,000 filed and unfiled cases alleging that Roundup causes cancer.
Bayer, which had previously agreed to a $10.9 million payout to settle existing claims, increased its projected claims payout to $2 billion after a judge disliked the portion set aside for future claims.
At this point, there is still hope of settlements for those who are waiting. Still, the payouts for the current individuals involved in these negotiations will be between $5,000 and $250,00 per person, and nothing like those initial payouts when the Roundup frenzy first began.
What are the cases about, really? Glyphosate
Glyphosate was introduced in 1974 but was nothing momentous until, in 1996, Monsanto developed genetically modified seeds that could survive applications of Roundup. Farmers were quick to acquire products that reduced costs and increased yields; soon glyphosate was the number one weedkiller.
But then, in 2015, the International Agency for Research on Cancer (IARC), a branch of the World Health Organization (WHO), announced that glyphosate could “probably” cause cancer. Not surprisingly, Monsanto refused to credit the findings, arguing that its years of laboratory and field research had proven it safe. Regulators in other countries throughout North America, Europe, Asia and Australia agreed with Monsanto.
In 2019 the Environmental Protection Agency (EPA) ruled that indicating that glyphosate caused cancer on product labels would be to make a false claim. The government filed a legal brief on Bayer’s behalf for the appeal of the Hardeman verdict, claiming the cancer risk “does not exist.” In January 2020, the EPA issued another report: “. . .there are no risks of concern to human health when glyphosate is used according to the label and that it is not a carcinogen.”
On June 22, 2020, a California federal judge ruled in Bayer’s favor that there was no need for any company selling a product containing glyphosate to include warnings on the labels. They ruled that requiring Bayer to provide the warnings would be a violation of its freedom of speech. The court referred to the fact that the WHO found that glyphosate is likely to cause cancer, but also included the fact that the EPA found to the contrary.
The judge in the June decision wrote: “. . . the statement that glyphosate is ‘known to the state of California to cause cancer’ is misleading. Every regulator of which the court is aware, with the sole exception of the IARC, has found that glyphosate does not cause cancer or that there is insufficient evidence to show it does.”
Part of the difficulty seems to be the questions posed in the research. The IARC asks primarily whether glyphosate has the potential to cause cancer. Government regulators, on the other hand, are looking at the risk that glyphosate will actually cause cancer with the average person’s exposure.
In the Hardeman case, one of Bayer’s attorneys, former U.S. Solicitor General Seth Waxman, argued that an expert could not say whether, in particular, Mr. Hardeman’s cancer was from years of glyphosate exposure. He claimed that 70% or more of non-Hodgkin’s lymphoma cases are idiopathic, or have no known cause. Dr. Dennis Weisenberger, during the same hearing, said he was able to rule out idiopathy because Hardeman had been exposed to Roundup at a significant level for over 25 years. Judge Chhabria found that the disease’s high rate of idiopathy defeated the ability to determine causation.
Back to the Court Cases
Monsanto has aggressively attempted to influence scientific opinion and discredit critics, behavior that undercuts their credibility. When Judge Chhabria of the U.S. District Court in San Francisco reviewed the Hardeman verdict in the summer, he said, “Monsanto didn’t seem concerned at all about getting at the truth of whether glyphosate caused cancer.” In an August 27, 2020 case management conference, he also said, “What I am concerned about is that Monsanto may be manipulating this litigation process to its advantage somehow. My only concern is that I don’t want the litigation to be used as a pawn in settlement negotiations, either way."
In June of 2020, Bayer announced it would spend up to $400 million to settle claims from a different Monsanto chemical: dicamba. It also put aside $820 million to settle claims about polychlorinated biphenyls (PCBs) in the water supply. PCBs were banned in the US 40 years ago.
For the Future
Bayer must be wondering if buying Monsanto will turn out to be a financial mistake, with all these lawsuits in the offing. In the meantime, they refuse to concede that glyphosate may have any cancerous effects, they have not altered their labeling to reflect that Roundup might be hazardous, and Roundup, the most widely used herbicide on the market, is still for sale nearly everywhere.
