There are tens of thousands of civil lawsuits alleging that the weed killer Roundup causes various forms of cancer, including non-Hodgkin's lymphoma (NHL). So it's no surprise that Bayer—which is now legally responsible for the outcome of these lawsuits after purchasing Roundup manufacturer Monsanto in 2018—is looking for a way to resolve as many of these cases as possible, as quickly as possible.
In June 2020, it looked like Bayer might get its wish when the corporate giant agreed to settle the vast majority of Roundup cases for around $11 billion. But the viability of that agreement is currently up in the air after the judge expressed concerns over its terms, including the creation of a class action that would consist of mostly future plaintiffs, with $1.25 billion going to those potential claims. Only if the judge ultimately signs off on the settlement agreement as a whole would we have a class action lawsuit over Roundup.
The vast majority of the tens of thousands of cases involving Roundup are currently in state courts or the federal multi-district litigation (MDL), In re: Roundup Products Liability Litigation, MDL No. 2741.
MDL is the pretrial consolidation of many cases into a single federal district, before a single judge. It's a procedural tool that's used fairly often in mass tort cases. The goal is to improve litigation efficiency by allowing one judge's pretrial decisions (such as rulings about discovery) to apply to every single case.
There's also the hope that many or all of the cases will settle. To this end, the court will choose a handful of representative cases to go to trial. These "bellwether trials" give all parties a general idea of what to expect should their respective cases go to trial.
If no settlement occurs, each case will go back to its respective home court and the litigation will be continued individually.
In contrast, a class action lawsuit is one case where a select group of designated plaintiffs bring suit on behalf of many other similarly situated individuals (the "class"). This lead plaintiff (usually through a team of lawyers) will handle the litigation as a representative of the class, and what happens in the lead plaintiff's case is legally binding on all class members who do not "opt out". Learn more about how a class action lawsuit works.
This most recent $10.9 billion settlement proposes the creation of a class action case that would help Bayer resolve many of the future cases against it.
As mentioned above, approximately $1.25 billion of the $10.9 billion Roundup settlement is earmarked for future plaintiffs. The proposed settlement also has three other major terms affecting a future class action:
1. It would create a Class Science Panel which would have four years to decide if Roundup caused non-Hodgkin's lymphoma, and if so, how much exposure is necessary to cause this condition. Once the Class Science Panel reaches a conclusion, it would be binding on both Bayer and all class plaintiffs in their future lawsuits. (Learn why diagnosis is crucial in a Roundup case.)
2. The class plaintiffs would forego their right to recover punitive damages or demand medical monitoring.
3. The proposed settlement would halt the class action lawsuit for four years until the Class Science Panel could finish its research. Once the research finished, each class plaintiff would leave the class and file an individual case and seek legal relief. The only restrictions on these plaintiffs would be that they are bound by the Class Science Panel's determination and agree not to seek punitive damages or medical monitoring.
The proposed settlement concerning the class action lawsuit is currently before U.S. District Court Judge Vince Chhabria, who is handling the Roundup MDL. However, Judge Chhabria has strongly hinted that he would not approve of the $1.25 billion settlement that would apply to future plaintiffs. There are several reasons for this stance:
First, there's the constitutional issue of whether the Class Science Panel can replace a judge or jury when it comes to determining if a defendant's conduct or product caused the plaintiff's alleged injuries.
Next, given the initial success of early plaintiffs who have sued Monsanto or Bayer, it's hard to see why a future plaintiff would agree to these settlement terms. Not only do plaintiffs give up the opportunity to collect punitive damages, but they risk being bound by the Class Science Panel's findings, which could very well conclude that Roundup does not cause NHL. If this were to occur, the class plaintiffs would recover little to nothing from Bayer or Monsanto.
In addition, it wouldn't be fair to legally bind future plaintiffs to the Class Science Panel's decision when the science behind NHL and Roundup could easily change.
Finally, it would be very difficult for future plaintiffs to decide whether they should join the class or not. That's because the class would include plaintiffs who used Roundup, but don't have symptoms of glyphosate-related illness, or otherwise have no idea this litigation exists.
Given Judge Chhabria's initial and well-founded reluctance, it doesn't appear likely that he will approve the $1.25 billion settlement and accompanying terms. Should this happen, there probably won't be a major class action lawsuit concerning Roundup and NHL for the time being.
If you're thinking about taking legal action over health problems that could be linked to your use of a glyphosate product, learn more about the timeline of a typical Roundup lawsuit and get tips on finding the right lawyer for you and your case.