Since acquiring Monsanto in 2018, lawsuits surrounding the inherited weedkiller, Roundup, have haunted pharmaceutical company, Bayer. Monsanto, an agriculture and biotechnology company, has long been accused of selling a carcinogenic product, with many alleging that the glyphosate in Roundup causes non-Hodgkin’s lymphoma.
But recently, Bayer proposed a $2 billion settlement to resolve any future lawsuits regarding claims that Roundup weedkiller causes cancer. However, the terms of the settlement raise consequential issues for future litigants to such an extent that the court may not approve it.
The $2B Settlement
In early February 2021, Bayer submitted a proposed settlement to United States District Court Judge Vince Chhabria, of the U.S. District Court in San Francisco, as part of a broader agreement to settle approximately 125,000 pending Roundup cases. The settlement would create a $2 billion fund to compensate potential class members who have developed (or will develop in the future) non-Hodgkin’s lymphoma after Roundup exposure. Qualifying class members may receive between $5,000 to $200,000.
The fund will also be used for other measures, such as establishing programs for legal assistance, non-Hodgkin’s lymphoma testing, and other outreach efforts. Legal fees, subject to court approval, will also be paid out of the fund. Under the proposed plan, the $2 billion will be provided over the course of a four-year period, during which the parties can agree to extend. Those who are unsatisfied with their payout, or those who failed to file a claim during the four-year period, may then commence a lawsuit in court.
The plan will further include the creation of an advisory science panel to examine whether Roundup causes cancer. The science panel’s determinations, according to the proposed settlement, can be used as evidence in court.
The current proposal is another version of a previously rejected settlement submitted to Judge Chhabria last year. The previous proposal would also create a scientific panel, but the findings would be binding on future litigants. With Bayer allowed to select some of the panel’s members, the impartiality of the panel became an obvious concern. Judge Chhabria denied the proposal on constitutional grounds, questioning whether it would be lawful to permit a panel of scientists to make ultimate conclusions of fact, instead of a judge or jury. Whether making the panel’s opinion advisory will change the court’s mind remains to be seen.
What Does This Mean for Future Claimants?
For some claimants, the proposed settlement might provide assurances that if they subsequently develop cancer from Roundup use, they will receive some form of compensation. However, the monetary ranges offered in the settlement pale in comparison to the multi-million dollar verdicts some of the plaintiffs in these cases have received in the past few years.
In 2018, a massive verdict was reached in favor of the plaintiff. It awarded $289 million (later reduced to $20.5 million) to a groundskeeper who developed cancer after Roundup usage. The next year, in March 2019, a California jury awarded $80 million (which was later reduced to $25.2 million by the court) to a man who had used Roundup for 30 years. A couple of months later, in May 2019, a California jury awarded a couple $2.055 billion in damages (later reduced to $86.7 million) after they both developed the same kind of non-Hodgkin’s lymphoma.
Although future litigants still maintain their right to sue in court, the enormous disparity between the settlement offers and verdicts raises concerns of fairness—subjects that will undoubtedly be broached by the court during any hearings on the matter. Any future litigant would need to conduct a thorough cost-benefit analysis before entering into any settlement. Notably, if approved by the court, the right to claim punitive damages will be eliminated, a provision that is binding on all class members. In light of the massive punitive damages that have been previously awarded by juries, the provision is another factor to consider when future litigants decide to sue.
Bayer has lauded the potential settlement, asserting in a press release statement that “[t]he class plan is intended to be one part of a holistic solution designed to provide further closure to the Monsanto Roundup litigation.” At the same time, Bayer has continued to reject claims that Roundup causes cancer, maintaining that decades of studies have shown that glyphosate is safe for human use. As of now, Roundup will remain on the market and Bayer has agreed to potentially provide a reference link to any scientific studies on its labels in an effort to increase transparency. Although the proposed science panel is now only advisory, there still remains the question of the impartiality, accuracy, and validity of the panel’s findings. Because the findings can be used as evidence in court, any future litigation may find itself back where it started—a battle of completely divergent scientific opinion. In addition, any findings concluded by the panel will likely affect the information that is ultimately disseminated to the public and any future consumers.
The safety of Roundup and glyphosate is not a consensus, but the tide might be changing. In 2015, the World Health Organization classified it as “probably carcinogenic to humans,” while the EPA determined otherwise. However, more recently, the EPA found that glyphosate has likely adverse effects on endangered species, and as a result, more reviews will need to be conducted before its registration review. In order to draw valid conclusions as to Roundup’s safety, meaningful scientific analysis is needed to protect current users as well as any future users of the product.