Monsanto Roundup Lawsuit Update

As of December 2021, Monsanto has reached settlement agreements in nearly 100,000 Roundup lawsuits. Monsanto paid approximately $11 billion. Bayer has accomplished this by negotiating block settlement arrangements with plaintiffs’ lawyers who have large numbers of cases in the litigation.

30,000 Roundup Cases Left… and Counting

Although these settlements account for nearly 80% of all pending Roundup claims, there are still about 26,000 active Roundup lawsuits. Moreover, new Roundup lawsuits continue to get filed on a regular basis.  Our Roundup attorneys call from Roundup victims with NHL almost every day.

December 2021 Roundup Lawsuit Update

On December 9, 2021, a Roundup trial resulted in another defense victory for Bayer after a jury in California ruled that the plaintiff’s cancer was not caused by her years of Roundup use.  It was a fairly classic NHL Roundup lawsuit.  The plaintiff, Donnetta Stephens, was a woman in her 70s who was diagnosed with lymphoma after years of using Roundup in her home gardening hobby.

The trial was conducted entirely via Zoom video call and dragged on for nearly 3 months.  This is a poor bellwether trial because of the insanity of trying to have such a complex trial by Zoom.  The emotion, the feel for the witnesses – you don’t get that on Zoom as we all know from using it for the last 20 months.

So our Roundup lawyers are still as bullish on the expected individual settlement amounts for Round Two of the Roundup lawsuits as we have ever been.

What This Roundup Page Is About

In this post, our Roundup lawyers will

  1. take a brief look back at the Monsanto Roundup lawsuits,
  2. update you on where things stand in December 2021,
  3. tell you the likely direction the Roundup litigation will likely take moving forward, and
  4. Look at the expected future settlement amounts of the Roundup lawsuits in Phase Two

Roundup Litigation

Not too long ago, Roundup was the most popular weedkiller in the world used by homeowners and professional farmers alike. But then a number of scientific studies started coming out suggesting that prolonged exposure to glyphosate (the active ingredient in Roundup) might cause non-Hodgkin’s lymphoma and other cancers. These studies led certain international health organizations to add glyphosate to their list of possible human carcinogens, sparking a rapid downward spiral for Roundup.

The identification of glyphosate as a possible carcinogen led to a wave of Roundup lawsuits by plaintiffs claiming that their use of Roundup caused them to develop lymphoma (and other diseases). Eventually, the Roundup lawsuits in federal courts were consolidated into a new mass tort MDL in the Northern District of California. The Roundup MDL gradually grew to over 100,000 cases, with thousands of additional Roundup cases pending in state courts in California.

Huge Verdicts Broke Monsanto’s Resolve

Monsanto had what I think is a somewhat unique corporate resolve to ignore the evidence that Roundup causes NHL.  They started off relying on unreliable data to prove their hypothesis and when the evidence because clear, Monsanto stuck their heads in the sand.  I’m convinced this is how history will write this story.

After years of discovery, that unshakable resolve crumbled. The first Roundup cases went to trial with disastrous results for Bayer. The first 2 trials resulted in verdicts of $289 million and $80 million. The third trial ended in an eye-popping verdict for the plaintiff of $2 billion.

These verdicts effectively broke Bayer’s resolve and they immediately shifted their focus on negotiating settlements, eventually setting aside $16 billion to cover settlements of pending claims.

Most Pending Roundup Cases Have Been Settled

In November 2021, Bayer told investors that the company had reached tentative settlement agreements in roughly 98,000 pending Roundup lawsuits. This accounts for nearly 80% of all pending Roundup cases. Bayer has brokered these settlements primarily by negotiating block settlement arrangements with lawyers who have large numbers of cases in the litigation.

Points System for Monsanto’s Roundup Settlement

The Roundup settlements are somewhat complicated because they create a detailed point scoring system designed to rank cases into settlement tiers based on the strength of claims and severity of injuries. Cases specific factors such as type of cancer, treatment outcome, age of the victim, estimated earnings capacity, etc., are awarded point scores. Individual cases are then placed into settlement tiers based on point scores and cases with higher scores get a bigger payout. Cases with lower point scores end getting much smaller payouts.

30,000 Roundup Lawsuits Remain

Although Bayer has entered into agreements to settle 80% of the pending Roundup claims, this still leaves over 26,000 currently active Roundup lawsuits that have not been settled. Moreover, new Roundup lawsuits continue to get filed on a regular basis as new individuals are diagnosed.

Example of a Recent Roundup Lawsuit

Ohio resident Gene Wyatt became one of the most recent plaintiffs in the ongoing Roundup litigation. Wyatt filed a Roundup lawsuit in the Southern District of Ohio against Monsanto on November 18, 2021. Wyatt’s case was subsequently transferred into the Roundup MDL in the Northern District of California.

Wyatt alleges that he was regularly exposed to Roundup while using it as part of his job with the Ohio Department of Transportation in Washington Courthouse, Ohio from 2001 until 2011. Spraying Roundup from a vegetation applicator to control weeds as part of Wyatt’s regular job duties. In January 2015, 5 years after his 10-year period of occupational Roundup exposure, Wyatt was diagnosed with Chronic Lymphocytic Leukemia. Wyatt’s lawsuit alleges that his leukemia was caused by his 10 years of exposure to Roundup.

The Future of Roundup Lawsuits

While Bayer continues to work on settling these remaining Roundup cases, the company is telling investors that future Roundup liabilities will depend on the outcome of the company’s appeal to the U.S. Supreme Court. Future liability has been one of the biggest issues for Bayer in the Roundup litigation. It may take years or even decades for Roundup users to develop lymphoma. This means Bayer could be facing a steady stream of new Roundup lawsuits for the next 20 years. This type of “long tail” tort liability can be a nightmare for publicly traded corporations like Bayer.

Initially, Bayer sought to deal with the future liability issue through a controversial global settlement arrangement that would have stayed and potentially frozen all future Roundup lawsuits. This proposal met fierce opposition and was rejected by the MDL back in May.

Bayer has now adopted a 2 prong strategy for limiting its future Roundup liability. First, Bayer announced that it will pull glyphosate-based Roundup from retail shelves at the start of 2023. The original Roundup will be replaced by a new version that does not contain glyphosate. This move will effectively cap any future Roundup liability years down the line.

The second prong of Bayer’s strategy is based on winning an appeal to the Supreme Court in the Hardeman case. Hardeman was the very first Roundup bellwether trial and it resulted in a massive verdict. Bayer has been appealing the Hardeman in the hopes of winning a game-changing legal argument. Bayer is arguing that the Roundup claims should be preempted by federal law because the EPA has found that cancer warnings are not required for glyphosate. If Bayer can get an appellate court to accept this legal argument, it would effectively block many future Roundup claims.

Bayer has already presented this argument to the 9th Circuit and lost. Now Bayer is asking the U.S. Supreme Court to consider the issue. In August Bayer filed a petition for certiorari with the Supreme Court in the Hardeman appeal.

Bayer is holding out hope that the appeal to the Supreme Court will save them, but the company already has a solid backup plan. If the Supreme Court declines to hear the case or rejects Bayer’s legal argument, Bayer has plans to set up an administrative process to handle future claims and has already set aside $4 billion to cover the cost. (Get an update on the Supreme Court appeal.)

When Will Roundup Victims Get Their Settlement Money?

That is the tragedy in all of this.  Many Roundup NHL victims just what to get their settlement money and put all of this behind them.  For these people, this is all very unfair.  But the judge feels compelled that he must be fair to everyone, including future Roundup victims. 

What is the average payout for a Roundup lawsuit?

The average settlement payouts for Roundup lawsuits in the higher settlement tiers has been around $100,000 to $160,000.

Has anyone won a lawsuit against Roundup?

Yes. The first 3 Roundup lawsuits to go to trial all resulted in massive victories for the plaintiffs: Johnson v. Monsanto (2018) = $289.2 million Hardeman v. Monsanto (2019) = $80.2 million Pilliod v. Monsanto (2019) = $2.055 billion

How many Roundup lawsuits have been settled?

We don’t know for certain how many Roundup lawsuits have been settled. However, as of October 2021, Bayer has indicated that roughly 75% of the 125,000 pending cases have been settled and are awaiting formal dismissal.

Looking Back

The rest of this blog post was written in the spring of 2021.  Much of this is outdated now but we leave it up because it is of interest to so many.

Over a year ago, Monsanto settled 100,000 Roundup lawsuits that allege the weedkiller Roundup causes NHL cancer. The settlement agreement still needs to get approved by the MDL judge (U.S. District Court Judge Vince Chhabria).

On Tuesday, however, Judge Chhabria issued a set of piercing questions in advance of the approval hearing. Judge Chhabria’s questions raise major concerns about the validity of the Roundup settlement proposal and cast doubt on whether the settlement will get approved in its current form.

Roundup Future Claim Compensation Fund

pesticide-239x300Under the terms of the proposed settlement, Bayer would pay $10.9 billion. Most of that money ($9.6 billion) will be paid to resolve the existing 125,000 claims involving exposure to Roundup prior to February 2021. However, the remaining $2 billion will be set aside for a highly controversial plan for dealing with claims based on “future” exposure to Roundup.

Some of the $2 billion will be used to create a “compensation fund” for a special class of individuals who were exposed to Roundup prior to February 2021, but have not yet been diagnosed with cancer and filed a lawsuit. Under the arrangement, anyone in this “class” would have access to free medical exams and could receive $200,000 in compensation if they are diagnosed with non-Hodgkin lymphoma in the future.

In his filing earlier this week, Judge Chharbria raised the following questions about this aspect of the settlement proposal:

  • If the Court understands the settlement correctly, it binds anyone exposed to Roundup before February 3, 2021 (assuming they do not opt-out), but contemplates that the compensation fund and medical monitoring program can be terminated a few years after the settlement is approved. Why would it be in the interest of people exposed to Roundup before February 2021 to bind themselves to a fund and program that expires so quickly?
  • How should the Court evaluate whether the amount in the compensation fund is sufficient?
  • One way to evaluate the proposed settlement is to compare it to the status quo, which is that plaintiffs continue to sue and Monsanto continues to negotiate settlements with them. This comparison appears to be the primary focus of the briefs. But another way to evaluate the proposed settlement is to compare it to other more conventional arrangements. From the standpoint of the class members, how does the proposed settlement compare to an arrangement in which Monsanto puts a warning on its label sufficient to foreclose future claims and establishes a fund that offers compensation as a potential alternative to litigation?

“Science Panel” For Future Roundup Claims

By far the most contested aspect of the proposed Roundup settlement is the plan to create a “scientific panel” to study the evidence and issue a definitive finding as to whether or not Roundup causes cancer. The finding of this scientific panel would be fully binding on ALL future claimants and class members. If the panel finds that there is no evidence that Roundup causes cancer, future Roundup claims would be effectively precluded.

This aspect of the settlement proposal has drawn widespread opposition and objections from various fronts. In previous hearings, Judge Chhabria has express significant doubts as to whether the science panel proposal was legally valid. In his filing earlier this week, Judge Chharbria cut right to the very heart of the issue on this in his last question:

Why is it in the interest of the class to agree in advance to the admission in future trials of the conclusions of a court-appointed independent science panel, given how well the trials have been going for plaintiffs without such a panel?

The answer to this question is obvious. It is clearly NOT in the best interests of future claimants to agree to allow a science panel to preclude their claims in advance. This seems less like a question and more like a statement by Judge Chharbia as to why he may not be able to approve the Roundup settlement.

We will know more soon.  This is a tough balancing act for this judge.  People want their Roundup settlement money now.  These victims have truly suffered and it is tragic that they still have to wait for their money. But this is complicated and there are many competing interests the judge must juggle.

UPDATE: May 2021 – Judge Balks at Approval and Suggests Warning Labels

On Wednesday, May 19, 2021, Judge Chhabria held the hearing on the request for preliminary approval of the multi-billion-dollar Roundup settlement proposal. Although Judge Chhabria punted on the request for preliminary approval at the hearing, he did seem to be slowly inching closer and gave the parties some suggestions on how to get to the finish line.

There were two other key things that came out of the May 19 hearing. First, it was explained that the future claims portion of the proposed settlement would cover 2 types or “classes” of Roundup claims.

Class 1 would include Roundup users who have already been diagnosed with non-Hodgkin lymphoma but have not yet retained a lawyer and filed suit. Judge Chharbia speculated that this class would include a high number of migrant farmworkers. Class 2 under the future claims settlement proposal would include anyone with exposure to Roundup prior to February 2021 and gets diagnosed with lymphoma at some point in the future.

Judge Chhabria suggested that the proposed settlement deal currently on the table “could potentially be reasonable for class one,” because it adequately notifies class members of their rights and provides for compensation of up to $200,000 per claim.

With respect to Class 2, however, Judge Chhabria expressed major concerns with the validity and reasonableness of the settlement proposal. Judge Chhabria clearly stated that he was not willing to give approval to the current draft of the settlement and he suggested that the parties go back and make some adjustments.

The controversial proposal for handling future claims (Class 2) has been a sticking point for Bayer in the settlement negotiations. Bayer thinks the arrangement will prevent a continuing stream of Roundup claims into the distant future while keeping its popular product in stores.

Judge Chhabria strongly suggested that Bayer could achieve this goal by agreeing to put very strong warning labels on Roundup going forward. Bayer has resisted this in the past. Why resist a path that would put future Roundup claims to bed?  Profits.  Putting a cancer warning on a product like Roundup will decrease sales.  Bayer knows that.

UPDATE: October 2021 – Judge Denies Future Claims Proposal While Bayer Continues to Settle Pending Cases

As predicted by Judge Chhabria, Bayer’s proposal for resolving “future claims” in the in Roundup litigation was simply too problematic.  After approval for the plan was formally denied, Bayer’s defense team quickly abandoned the idea and changed strategies. Bayer has now announced that it will stop selling glyphosate-based Roundup to retail consumers beginning 2023. The company also set aside another $4 billion to cover liabilities for future Roundup claims.

Meanwhile, Bayer has continued to negotiate large block settlements of pending Roundup cases. The company advised investors that it has earmarked about $12 billion for the settlement of roughly 125,000 pending claims, many of which have already been settled and are waiting for dismissal.

Will the Individual States Ban Roundup Pesticide?

Congress is as dysfunctional as always.  But some states may ban Roundup on their own. In late November 2021, a newly created commission in Massachusetts is considering restrictions on the use of Roundup because it has been linked to cancer.   Many states may ban non-commercial use of Roundup before Monsanto takes Roundup off the market as planned in 2023.

Random Roundup Settlement Tea Leaf

Bayer announced in November 2021, that Liam Condon, the head of its crop science unit, would resign at the end of 2021.

This might be a stretch on my part to find some hidden Roundup settlement meaning in this.  I have no insider information.  But getting rid of the old guard of leadership who felt compelled to defend Roundup no matter what may be a good sign for settlement talks.  New leadership is more likely to say those were the mistakes of the past.  That mentality would make it easier for Monsanto to get on with it and settle the remaining 30,000 Roundup lawsuits.

Call a Roundup Lawyer Today

If you need a Roundup lawyer to fight against Monsanto, call us today at 800-553-8082.  There is a deadline to file that is a really big deal.  So call our lawyer or call another lawyer today. Don’t wait.  You can also reach out to us online.

 

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