February 27, 2021 by Tom Roberts, Esq.
Bayer acquired Monsanto in 2018 and its legal liabilities of the glyphosate (Roundup) manufacturer.
Cases in California state and federal courts
Robin Greenwald of Weitz & Luxenberg, PC; Michael Miller of The Miller Firm, LLC; and Aimee Wagstaff of Andrus Wagstaff, PC. The court vests co-lead counsel with the responsibility for coordinating and overseeing MDL activities for the plaintiffs. Document 11182 Filed 07/06/20
Bayer’s Roundup Settlement Details
Settlement Amount: $849 million to $10.9 billion (estimated)
Share Per Plaintiff: $5,000 to $250,000 (estimated)
Cases Settled: 47,000
Cases Still Pending: 78,00
Past Roundup Verdicts
In Roundup multidistrict litigation (MDL 2741), three cases have gone to trial. Each one has resulted in a massive verdict against Bayer:
Dewayne Johnson | $289 million verdict, later reduced to $20 million
Edwin Hardeman | $80 million verdict, later reduced to $25 million
Alva and Alberta Pilliod | $2 billion verdict, still pending appeal
$2.055 billion total verdict
$55,206,172.80 compensatory damages and $2 billion punitive damages
Past economic – $47,296.01
Past non-economic loss – $8M
Future non-economic loss – $10M
Punitive damages – $1 billion
Past economic – $201,166.76
Past non-economic – $8M
Future economic – $2,957,710
Future non-economic – $26M
Punitive damages – $1 billion
Roundup has not been recalled. In Bayer’s initial proposal, future claims were to be handled as follows:
- A four-year moratorium on filing new cases.
- Establish a five-member science panel, to determine if Roundup can cause non-Hodgkin lymphoma (NHL).
- If the panel finds no relationship between Roundup and NHL, future lawsuits would be barred.
- $1.25 billion in funding would be made available to Roundup users diagnosed with NHL. The money would also be used for NHL research.
On 7/6/2020, U.S. District Judge Vince Chhabria rejected this initial plan, stating in part (see order):
The following are just some of the Court’s concerns:
- Even with the consent of both sides, it’s questionable whether it would be constitutional (or otherwise lawful) to delegate the function of deciding the general causation question (that is, whether and at what dose Roundup is capable of causing cancer) from judges and juries to a panel of scientists.
- Even if it were lawful to delegate this function to the panel, it’s unclear how the delegation proposed here would benefit a class of Roundup users who either have cancer but have not yet sued Monsanto or have not yet developed cancer. 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. 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?
- 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? For examine, imagine the panel decides in 2023 that Roundup is not capable of causing cancer. Then imagine that a new, reliable study is published in 2028 which strongly undermines the panel’s conclusion. If a Roundup user is diagnosed with NHL in 2030, is it appropriate to tell them that they’re bound by the 2023 decision of the panel because they did not opt out of a settlement in 2020?
- Given the diffuse, contingent, and indeterminate nature of the proposed class, it seems unlikely that most class members would have an opportunity to consider in a meaningful way (if at all) whether it is in their best interest to join the class. There’s nothing wrong with certifying a class of people who are candidates to suffer harm in the future when the class is narrow and readily identifiable—for example, NFL players who have not yet developed CTE. In a case like that, it’s relatively easy to ensure that the class members are notified and given meaningful chance to consider their options before deciding whether to opt out of the settlement. A class that includes all Roundup users who will get cancer in the future is very different. For example, the idea that a migrant farmworker or someone who is employed part time by a small gardening business would receive proper notification (much less the opportunity to consider their options in a meaningful way) is dubious.
Notes from the Johnson trial – Judge explaining basis for upholding jury’s verdict:
Plaintiff’s evidence that his NHL was caused by his exposure to GBHs was based on the testimony of Dr. Nabhan, a former practicing oncologist. Dr. Nabhan does not dispute that he is unable to identify a cause of NHL in the majority of his patients. Tr. 2990:6-14; 2997-2998. Nonetheless, Dr. Nabhan opined that Mr. Johnson’s cancer was not idiopathic and that there was substantial evidence that his NHL was caused by his exposure to GBHs: a “known carcinogen causing non-Hodgkin’s lymphoma.” Tr. 2997:5-10.
Dr. Nabhan elected to conduct a type of causation analysis known as a differential diagnosis, or differential etiology, in reaching the opinion that GBHs caused Plaintiff’s NHL. Differential diagnosis is a process whereby the physician begins by ‘ruling in’ all possible causes of the plaintiff’s illness then ‘rules out’ the least plausible causes until the most likely cause remains. The final result of a differential diagnosis forms the basis of the physician’s conclusion regarding what caused the plaintiff’s illness. Cooper v. Takeda Pharms. Am., Inc. (2015) 239 Cal. App. 4th 555, 565-66.
In performing his differential diagnosis, Dr. Nabhan explained that because Mr. Johnson was much younger than the average patient who developed the disease this raised a “red flag” that his cancer is not likely to be idiopathic and more likely to be caused by an exposure. Tr. 2842:23¬2844:19. Dr. Nabhan considered the known risk factors and causes of NHL including age, race, immunosuppressant therapies, autoimmune diseases, skin conditions, occupation, occupational exposures and viruses. Id. at 2842-2852. Dr. Nabhan opined that sun exposure, tobacco, and alcohol are not known causes of NHL and could therefore be excluded. Id. at 2852-2853. After conducting his differential diagnosis, Dr. Nabhan concluded that Mr. Johnson’s only known risk factors were his race (African American) and exposure to GBHs. Tr. 2853:19-23. Dr. Nabhan therefore concluded that the GBHs were the most substantial contributing factor to Mr. Johnson’s NHL. Id. at 2853:24-2854:2.
Consumer - False Advertising/labeling
Jones, et al. v. Monsanto Co., Case No. 4:19-CV-000102, in the U.S. District Court for the Western District of Missouri
Claim deadline – Past
A $39,550,000 settlement –
This Roundup® class action lawsuit dealt with claims of false advertising in the product label not personal injuries.
The Roundup® class action lawsuit claimed Monsanto falsely labeled certain products, falsely claiming that Roundup® Weed & Grass Killer only targets an enzyme in plants and not in people or pets.
The suit was for consumers purchasing one of the following Roundup® Weed & Grass Killer products that includes the statement “targets an enzyme found in plants but not in people or pets” or a similar assertion on the labeling.
- Roundup® Ready-to-Use Weed & Grass Killer III;
- Roundup® Ready-to-Use Weed & Grass Killer Plus;
- Roundup® Weed & Grass Killer Concentrate Plus; or
- Roundup® Weed & Grass Killer Super Concentrate
February 16, 2021 deadline for claims or opting out.
Sorry, comments are closed.