Popular weed killers like Roundup rely on the herbicide glyphosate as their active ingredient, but a link between glyphosate and serious health problems (including a form of cancer known as non-Hodgkin's lymphoma) has prompted the filing of thousands of lawsuits (many by landscapers, farmers, and gardeners). Let's look at the legal arguments behind these cases, and recent headlines involving Roundup lawsuits and the massive $10.9 billion settlement that could affect future cases.
Sometimes chemicals that are thought to be fairly safe turn out to pose serious health risks. When it comes to weed-killing sprays, companies like Bayer (which acquired Roundup maker Monsanto in 2018) argue that there is no scientific connection between glyphosate and cancer, and they point to the fact that even the U.S. Environmental Protection Agency and the World Health Organization can't agree on whether glyphosate is a carcinogen (in 2017, the EPA stated that the chemical wasn't likely cancer-causing, despite the fact that two years earlier, the WHO had classified glyphosate as "probably carcinogenic").
While Roundup hasn't been recalled, Bayer intends to introduce a glyphosate-free version for residential use in 2023. And despite the absence of a definitive scientific connection between Roundup and cancer, the link has been strong enough to support some high-profile verdicts in a number of glyphosate lawsuits against Bayer/Monsanto.
Here's a look at some recent court action involving Roundup.
An official statement from Bayer detailed the company's legal strategy for the near future. It hinges largely on a petition for review the company intends to file with the U.S. Supreme Court in August 2021. Bayer will be asking the top court to review a 2021 federal appeals court decision that went against Bayer. In those proceedings, the company argued that lawsuits relying on state law to assess the safety of glyphosate were preempted by federal law, largely because the EPA hasn't required warning labels for glyphosate, and the agency has determined that glyphosate isn't likely to cause cancer in humans.
If the Supreme Court won't hear the appeal, or if the Court hands down a decision that goes against Bayer, the company intends to "activate its own claims administration plan" for consumers who allege that their health problems can be attributed to Roundup use. In the meantime, the company plans to "be very selective in its settlement approach in the coming months and will not entertain any further settlement discussions when and if the Supreme Court grants review."
Bayer won't ask the U.S. Supreme Court to hear an appeal of the first jury verdict over the safety of Roundup. Back in 2018, a California jury found in favor of groundskeeper Dewayne Johnson, who developed non-Hodgkin's lymphoma after years of using Roundup on the job. The jury decided that Bayer/Monsanto failed to adequately warn consumers of a link between Roundup and the risk of cancer. While Johnson's award was reduced on appeal, Bayer's liability has been upheld. More details on the Johnson case can be found below.
This is apparently more tactical move than concession. According to Bloomberg, Bayer's decision "reflects a legal strategy to end the state court [Johnson] case and instead focus on [a] second Roundup verdict, in federal court." The company's thinking here is that federal case is better suited for review by the U.S. Supreme Court, and perhaps there are indications that appealing the federal case is more likely to result in a favorable outcome for Bayer on the liability issue.
Bayer has announced a proposed $2 billion agreement to resolve future Roundup lawsuits, in the German giant's latest attempt to ride out a wave of claims linking its popular weed killer to non-Hodgkin's lymphoma. According to the Wall Street Journal, the proposed deal would create a compensation program that would pay future Roundup claimants approximately $5,000 to $200,000 each, "with the offers dependent on age, health, proof of Roundup use and other factors." Participation in the compensation program would be limited to claimants who aren't represented by a lawyer, but any future Roundup claimant would also be free to opt out of the settlement and pursue a lawsuit against Bayer on their own.
The proposed agreement is part of a big consolidation of Roundup lawsuits brought together in a process known as multidistrict litigation (MDL). In 2020, Bayer and a number of plaintiffs' lawyers in the MDL (called "In re: Roundup Products Liability Litigation") reached a massive $10.9B settlement agreement meant to apply to current and future Roundup claims, only to have Judge Vince Chhabria (who is overseeing the MDL in federal district court in California) reject the deal (more on this below). Part of Judge Chhabria's objections related to the rights of future claimants, so it looks like the parties have tried to account for those objections with this revamped agreement and its opt-out provisions. We'll have to wait and see whether Judge Chhabria signs off on this latest version of the deal.
Bayer/Monsanto and a number of plaintiffs' attorneys have agreed to settle 15,000 lawsuits over health problems linked to use of Roundup.
Terms of the settlements (including dollar figures) weren't announced, but according to multiple news outlets, all 15,000 cases were being handled by the only three lawyers to have taken Roundup lawsuits to trial against Bayer/Monsanto. So it looks like the lawyers with the most courtroom experience going up against Bayer/Monsanto are now out of the litigation picture, which is likely no coincidence.
These agreements are part of the big $10.9 billion settlement in the Roundup multi-district litigation (MDL) discussed below, and it's not yet clear how the judge handling the MDL will fold these latest deals into the bigger settlement picture.
An $10.9 billion settlement agreement meant to resolve most existing and future lawsuits over Roundup-related illness continues to encounter roadblocks. The latest developments (according to Bloomberg and other news outlets) have plaintiffs' lawyers accusing Bayer of reneging on the deal, and the judge expressing concerns that the German multinational corporation is manipulating the settlement process.
U.S. District Court Judge Vince Chhabria, who is handling the Roundup multi-district litigation (MDL), is considering lifting a pause on proceedings—in place since Bayer and plaintiffs' lawyers began trying to iron out terms of the settlement—and allowing trials to go forward.
Back in June, Bayer agreed to settle the vast majority of Roundup lawsuits for almost $11 billion. The agreement includes 95 percent of cases already set for trial. Between $8.8 billion and $9.6 billion of the settlement goes to cover those current cases, with about $1.25 billion set aside to cover future plaintiffs that have yet to bring suit against Bayer.
In July 2020, Judge Chhabria first expressed concerns over how the proposed settlement agreement might apply to future cases, including use of a "Class Science Panel" to decide issues that are typically resolved via the court process. Learn more about how the Bayer Roundup settlement works.
A California appellate court denied Bayer's request to overturn the trial court's decision in the first Roundup injury lawsuit to reach a verdict: In 2018, a California jury found in favor of Dewayne Johnson, a 46-year-old groundskeeper who worked at a number of California schools.
In that 2018 trial, the plaintiff's attorneys argued that the groundskeeper developed non-Hodgkin's lymphoma after using Roundup on the job, and that there is a scientific connection between the product and the illness. The jury agreed, finding that Bayer/Monsanto failed to issue adequate warnings to consumers when it comes to Roundup and cancer risks. Bayer/Monsanto was ordered to pay $39 million in compensatory damages, plus another $250 million in punitive damages.
The total award was later reduced to $78.5 million. Then in July 2020, though denying Bayer's request to overturn the verdict, the California appellate court further reduced the groundskeeper's award from $78.5 million to $20.5 million.
In a win for Roundup manufacturer Bayer, a federal court judge in California has prevented California officials from requiring that the popular weed killing product contain a prominent safety warning on store shelves in the state. Cautionary product labels like these are known as "Prop 65" warnings, named after a 1986 state ballot initiative requiring California businesses to provide warnings to consumers about products that could bring significant exposure to chemicals that cause cancer and birth defects.
In his June 22 ruling against the state's proposed action, U.S. District Judge William B. Shubb declared that "requiring Bayer to provide the warning on Roundup is a violation of its free-speech protections," according to Bloomberg.
The state's Office of Environmental Health Hazard Assessment has listed glyphosate as cancer-causing since 2017, but the federal judge's ruling on Roundup's labeling seems to be at odds with that agency's determination.
After a federal jury in California awarded a plaintiff around $75 million in punitive damages as part of a successful Roundup lawsuit, the judge cut that figure to around $20 million. Though evidence showed that the plaintiff had used Roundup for over 25 years (in his yard) before developing cancer, the judge found the punitive damages award "constitutionally impermissible" relative to the amount of compensatory damages awarded (around $5 million, an amount the judge left unchanged from the jury's March 2019 decision).
A California jury ordered Bayer to pay $2 billion in punitive damages in a lawsuit filed by a couple who both developed cancer after using Roundup for over 30 years. The couple was also awarded another $55 million as compensation for their medical bills, pain and suffering, and other damages. A few months later, this massive award was reduced to $86.7 after the judge concluded that the $2B judgment was significantly out of step with legal precedent.
Roundup remains on store shelves across the country, and the product continues to be touted in print and TV ads. But as touched on above, in July 2021 Bayer announced its intention to pull glyphosate-based Roundup from the consumer market by 2023. The company plans to "rely on alternative active ingredients" other than glyphosate at that point, at least when it comes to Roundup products intended for residential use.
If you're thinking about taking legal action over health problems potentially caused by your use of a glyphosate product, get tips on finding the right lawyer for you and your case.