Monsanto Roundup Lawsuit Update

March 19, 2025 – Push for Roundup Consolidation in New Jersey

A second request to centralize lawsuits against Monsanto and Bayer over Roundup exposure has been submitted to the New Jersey Supreme Court. Plaintiffs in 36 cases across eight jurisdictions seek to consolidate their cases in Atlantic County Superior Court, arguing that centralization would improve judicial efficiency, streamline discovery, and prevent inconsistent rulings.

Currently, 41 cases are pending in New Jersey, with plaintiffs asserting that Roundup exposure led to serious health conditions, including non-Hodgkin lymphoma. The plaintiffs anticipate that if their request is approved, the total number of cases could exceed 100. The New Jersey Supreme Court previously denied a similar request in June due to an insufficient number of cases. Monsanto has opposed the renewed bid, maintaining that the number of claims does not justify multicounty litigation.

March 11, 2025 – Bayer “Threatens” to Take Roundup Off the Market

Bayer is telling Congress it may stop selling Roundup in the U.S.  Bayer is lobbying lawmakers for legal immunity, arguing that federal EPA approval should block injured plaintiffs from suing under state laws. Meanwhile, 67,000 more lawsuits remain unresolved, and countless other individuals may have been harmed by prolonged exposure to Roundup.

Rather than taking responsibility for the devastating effects of glyphosate, Bayer is doubling down on corporate defense strategies, petitioning the U.S. Supreme Court again, and seeking legislative protection. It has not yet made good on its veiled threat to pull Roundup from the U.S. market, but if it ever does, it will only be because litigation has made it too costly to continue profiting from a dangerous product.

March 10, 2025 – Selling Stock to Pay Roundup Settlements

Bayer is attempting to raise billions of dollars by seeking permission from its shareholders to issue additional stock. This move highlights the significant financial challenges the company is facing due to the numerous lawsuits that remain pending. The announcement caused Bayer’s stock to drop 10%, making investors even more worried about the company’s future. It hard to understand why this would tank the stock.  It is not as if this was big news, Bayer would have to find the money somewhere to fund settlements.

January 30, 2025 – New Study on Birth Weight and Roundup

January 28, 2025 – Roundup Settlement Rumors

January 4, 2025 – Caranci Appeal

Monsanto has appealed a $175 million jury verdict in Pennsylvania Superior Court, seeking to overturn the decision in favor of Ernest Caranci, who claimed Roundup weedkiller caused his cancer.

Monsanto argues that a court clerk improperly coerced the jury into reaching a decision by suggesting they would have to return for several days of deliberation before a mistrial could be declared. Monsanto asserts this instruction deviated from Pennsylvania’s standard guidance, allegedly pressuring the jury to reach a verdict.

The appeal also challenges Judge James C. Crumlish III’s evidentiary rulings, including the exclusion of evidence showing global scientific consensus on the safety of glyphosate, the active ingredient in Roundup. Monsanto argues that this exclusion, coupled with the inclusion of a foreign report favoring the plaintiff, created a double standard and undermined the fairness of the trial. Additionally, Monsanto cites it new favorite case, the Third Circuit’s Schaffner v. Monsanto ruling, which preempts state law failure-to-warn claims, as grounds for appeal.

The foundation of Monsanto’s appeal appears unsteady and unconvincing.

December 8, 2024 – Mistrial in Chicago

November 20, 2024 – RFK Jr. and Roundup

Robert F. Kennedy Jr. has long been a vocal critic of Roundup. In 2018, he was involved with the legal team representing Dewayne Johnson, a former school groundskeeper who alleged that prolonged exposure to Roundup caused his non-Hodgkin’s lymphoma. Johnson’s case is widely regarded as the starting point for this litigation. A jury awarded Johnson $289 million, finding that Monsanto acted with “malice and oppression” by failing to warn consumers about the potential health risks of its product.

After the verdict, Kennedy remarked, “This jury found Monsanto acted with malice and oppression because they knew what they were doing was wrong and did it with reckless disregard for human life.” He called the decision a strong message to Monsanto’s boardroom. You like him or hate him.  But Kennedy is clearly on the right side of this issue.  (Here is a Facebook post from him. )

If Kennedy is confirmed as Secretary of Health and Human Services, his leadership could meaningfully influence the Roundup litigation. True to his history, he is likely to advocate for stricter oversight of herbicides and pesticides, potentially pushing federal agencies like the EPA or FDA to re-evaluate the safety of glyphosate. Any regulatory action questioning or limiting glyphosate’s use could strengthen plaintiffs’ claims, supporting arguments that Roundup is hazardous and inadequately regulated.

Such a shift in regulatory and political climate—especially under a conservative administration—might force Bayer to do a reset on its jumbled legal strategy and reconsider a more aggressive pursuit of a global Roundup settlement.

October 24, 2024 – Massachusetts State Court Follows 3rd Circuit

A Massachusetts state court has found that federal law preempts a plaintiff’s claims that Monsanto failed to warn about the potential dangers of its weed killer, Roundup.  Plaintiff’s design defects remain, but it is certainly a blow to lose the failure to warn claim.

The ruling mirrors the 3rd Circuit’s opinion in Schaffner v. Monsanto.  The concern is that this case provides judges who are inclined to favor corporate protection, such as those who support Monsanto, with a legal basis to do so, and we will likely see more opinions like this.

October 10, 2024 – New $78 Million Verdict in Philadelphia

The jury in Melissen awarded $3 million in compensatory damages and $75 million in punitive damages. Plaintiffs needed a big win, and we got one.

September 16, 2024 – New Trial Starts Today

Philadelphia’s sixth Roundup trial, Melissen v. Monsanto, is set to start today. A jury was selected last week.  Hopes are high for this case.

September 11, 2024 – Loss in Philadelphia

In Young v. Monsanto, a Philadelphia jury cleared Monsanto of liability, rejecting claims that its Roundup weedkiller caused the plaintiff’s non-Hodgkin lymphoma. The jury found that the plaintiff did not provide sufficient evidence to prove that Roundup was the cause of his cancer.

Plaintiffs will not win every Roundup lawsuit.  Some cases are stronger than others. But to put this in context, in the five Roundup cases tried in Philadelphia, plaintiffs have won three. The biggest verdict was $2.25 billion (later reduced to $404 million so we will use that number), while the two other wins included verdicts of $3.5 million and $175 million. Including those two losses, the average of these verdicts is approximately $194.17 million.

September 4, 2024 – Missouri Loss Affirmed

A Missouri appeals panel upheld a trial court victory for Monsanto Co. in a Moore v. Monsanto. The appeals court supported the trial court’s decision to exclude testimony from one of Moore’s experts.

The court said that the circuit court correctly excluded a witness who was not qualified as an expert. Additionally, the court found no error in not granting a mistrial based on Monsanto’s comments during its opening statement suggesting Moore would not present a medical doctor to testify about causation. Moreover, the court upheld the decision to deny Moore’s motion to strike a juror for cause, affirming the juror’s ability to remain fair and impartial despite a past business relationship with Monsanto.

This has been a few good weeks for Bayer. Will they take their momentum and try to start settling these lawsuits to save their company or will they double down and let the tide turn against them once again?  History suggests the latter.

September 3, 2024 – MDL Experts Motions

In the MDL, Monsanto has filed a motion to exclude the testimony of seven plaintiffs’ experts: Dr. Peter T. Silberstein, Dr. Bruce Woda, Dr. Lawrence M. Weiss, Dr. Craig Nichols, Dr. Richard Bakst, Dr. William Fleming, and Connie Welch-DuJardin. Plaintiffs’ filed their responses to these motions on Friday.

August 16, 2024:  Big Appellate Win for Bayer

Bayer won a big victory in the 3rd Circuit yesterday. The court ruled that federal pesticide labeling regulations preempt state laws. This decision, stemming from a case in Pennsylvania, centers around whether the EPA approved pesticide labels, which do not include cancer warnings for Roundup, override state requirements for such warnings.

The court emphasized that once the EPA approves a label that omits specific health warnings, state laws demanding those warnings are preempted by federal law.

Chief Judge Michael A. Chagares wrote that “Because regulations promulgated to implement FIFRA require the health warnings on a pesticide’s label to conform to the proposed label approved by the EPA during the registration process, and because during Roundup’s registration process the EPA approved proposed labels omitting a cancer warning following an extensive review of scientific evidence concerning Roundup’s possible carcinogenicity, we conclude that the alleged state-law duty to include the Cancer Warning on Roundup’s label imposes requirements that are different from those imposed under FIFRA, and that it is therefore preempted by FIFRA.”

I don’t think Bayer’s fantasy of this going to the U.S. Supreme Court will become a reality. But we do now have a split among federal appellate courts over the issue of federal preemption of state warning requirements on pesticides. So, it is more realistic today than it was before this opinion.

Bayer stock is up 10% this morning on the news.

July 23, 2024: Important Appellate Win in Oregon

Plaintiff won a big appeal of a jury verdict in Oregon.  The plaintiff contended that the trial court erred by excluding testimony from his expert, Dr. Charles Benbrook, regarding EPA regulations.

Benbrook was prepared to explain the overall regulatory framework for pesticides in the United States, including the processes and criteria the EPA uses to evaluate and approve pesticide products. This would encompass the complexities of FIFRA, how the EPA assesses the safety and efficacy of pesticides, and the significance of the EPA’s labeling requirements.

His testimony was also expected to shed light on how different pesticide regulations interact, particularly focusing on the EPA’s pesticide cancer risk assessment process and policy. This would involve discussing how the EPA and other regulatory bodies like the International Agency for Research on Cancer (IARC) reach different conclusions regarding the carcinogenicity of substances like glyphosate, the active ingredient in Roundup.

The Oregon intermediate appellate court agreed was a mistake not to allow Dr. Benbrook to testify.  As a result, the appellate court reversed the judgment and remanded the case. This means the plaintiff gets a new trial.

Monsanto cross-appealed, arguing that the plaintiff’s claims were preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), looking for some court, somewhere, to buy into their argument.  The court, however, rejected Monsanto’s argument, concluding, as every court has, that the FIFRA does not preempt the plaintiff’s state law claims.  The appellate court specifically found that FIFRA’s express and implied preemption did not apply.

July 18, 2024: Plaintiffs Post-Trial Motions Fail in Kline

As expected, a motion for a new trial after plaintiffs’ loss in Kline was rejected this week.  This is plaintiffs’ only loss in Philadelphia. Plaintiffs are three for four with three substantial verdicts totaling $3.5 million, $175 million, and $2.25 billion.

Plaintiff has a strong argument on appeal. We think the trial court incorrectly restricted evidence regarding the International Agency for Research on Cancer (IARC)’s classification of glyphosate as a probable human carcinogen and a ruling by the U.S. Court of Appeals for the Ninth Circuit, which highlighted issues with an EPA study on glyphosate.

We know these have been strong arguments for jurors in other cases. But you do not expect the trial judge to reverse course. This argument will get a fresh look on appeal.

July 11, 2024 – MDL Updates

July 4, 2024 – Philadelphia Case Dismissed

The next Philadelphia Roundup trial, set to start next week, has been voluntarily dismissed by the plaintiff. The trial judge dismissed nine of the ten counts alleged in the cases, ruling that the plaintiffs had missed the statute of limitations. With only one count remaining, the plaintiff voluntarily dismissed the claim, although it looks like it will appeal.

What happened was the plaintiff was diagnosed with NHL in 2014 and tragically died in April 2020.  The wrongful death claim his family filed was filed within the statute of limitations, but the survival action was not. The fact that the victim’s doctors did not know Roundup could cause cancer, that the man continued to use Roundup after his diagnosis, and that he may have had some dementia did not persuade the judge.

It is sad that the family will not get the courtroom justice they deserve, but this dismissal has nothing to do with the merits of the case. There will be another Roundup trial in Philadelphia next month.

June 29, 2024 – Bayer’s Bill Gets Past Congressional Subcommittee

Yesterday, the House Appropriations Subcommittee on Interior, Environment, and Related Agencies voted on the fiscal year 2025 appropriations bill, which includes preemption language that would strip states of the ability to regulate pesticides, hindering victims’ ability to hold pesticide manufacturers accountable.

Getting past a bill past a subcommittee is a long way to passing it, but it is not good that Bayer is making some inroads with this nonsense.

June 28, 2024 – More on the Reduction of $2.5 Billion Verdict

June 12, 2024 – No New Jersey Roundup Class Action

The Roundup MDL judge raised concerns that some plaintiffs’ firms might be taking on too many cases just to settle them inexpensively.

The judge questioned whether some firms might be neglecting clients by taking on more cases than they can handle and settling them for minimal amounts instead of litigating.

In every mass tort, a small minority of lawyers take cases that are not viable, either because they want a large inventory of cases or they simply cannot identify which claims should be pursued. The Roundup litigation is a little ripe for this because we have big verdicts and settlements, which attract lawyers like moths to a flame.

Still, I do not think it is a big problem in this litigation. Moreover, defense lawyers have the solution to this problem in their hands: do not settle claims if they do not think the claims are compensable.

June 5, 2024 – Roundup Verdict Reduced to $400 Million

A Philadelphia Court of Common Pleas judge has reduced the verdict in McKivision from January from $2.25 billion to $400 million.

I think the jury’s verdict should be respected. But we can all agree that $400 million is still an extremely large sum of money.

May 23, 2024 – Existential Threat

Bayer AG Chief Executive Officer Bill Anderson has described the ongoing wave of Roundup lawsuits over the widely used weedkiller Roundup as an “existential threat” to the company.

Speaking at the Executives’ Club of Chicago, Anderson emphasized the dire nature of the litigation threat, admitting that the glyphosate litigation threatens Bayer’s ability to survive and innovate for farmers.

If you read these updates regularly, how long have I been saying this? I swear I think he stole it from me.   I’ve also been saying, like he says, that Monsanto makes a lot of other quality products. It does innovate for farmers.  These two things can be true at the same time.

I think it is an existential threat not because it is not a situation that can be controlled.  It is because Bayer will not do what it knows it must to resolve this litigation.  Yes, it will have to take some lumps and pay a lot of money in settlements.  But isn’t that better than going bankrupt?  That is where we are heading.

May 8, 2024 – New Roundup Lawsuit Filed in Delaware

Last week in Delaware state court, a new Roundup lawsuit was filed by a professional arborist who has extensively used Roundup herbicide for over two decades in his line of work. He applied Roundup on various properties to clear out undesirable turf and weeds, preparing areas for new turf and maintaining flower beds around trees. He not only used the herbicide for his clients but also on his own property. His primary choice was Roundup concentrate, which he mixed with water and sprayed using handheld and backpack sprayers, regularly exposing his skin to the chemical.

In February 2023, the arborist was diagnosed with Cutaneous T-Cell Lymphoma, a type of non-Hodgkin lymphoma. Since his diagnosis, he has endured significant and disabling physical injuries resulting from both the disease and its treatments. Throughout this difficult period, his wife has been his primary caretaker, with his children also deeply affected by his condition.

The family was initially puzzled by the diagnosis, given his young age and lack of family history with the disease. They later discovered that his prolonged exposure to Roundup was likely the cause of his cancer.

This lawsuit adds to a growing docket of Roundup-related lawsuits being filed in Delaware state court.

April 6, 2024 – Billion Dollar Verdict Reduced

A judge knocked back the $1.56 billion jury verdict in state court in Missouri to three plaintiffs in November last year to $611 million.

Bayer will call it a win. Bayer stock yesterday jumped on the news.  But let’s all agree a $611 million verdict is a darn good verdict.

April 2, 2024 – New Roundup Lawsuits

We got a call a few hours ago from a new client diagnosed with NHL in 2024.

This one individual tragedy of many reminds us all how this particular litigation works.  Obviously, there is a latency period between the time of exposure to Roundup and the onset of non-Hodgkin’s lymphoma. This means that after someone is exposed to Roundup, it could take several years before symptoms of non-Hodgkin lymphoma manifest. The latency period is the time required for the exposure to Roundup to initiate changes or damage in the body’s cells, which eventually can lead to the development of NHL and other forms of cancer.

So if Bayer stops selling Roundup today – see the March 19 update below – we will still be seeing new claims for the next 10 years. This is bad news for Bayer.  But discontinuing the product or putting a warning on it would at least start the clock on the end of any Roundup litigation.

March 20, 2024 – Key Points in Kline Appeal

Plaintiff is appealing the defense verdict in Kline v. Roundup, the one defeat we have suffered in Philadelphia.  There are three key points on appeal:

1. Exclusion of Scientific Studies and Regulatory Critiques: The plaintiff argues that the court improperly limited evidence related to the International Agency for Research on Cancer (IARC)’s classification of glyphosate as a probable human carcinogen and a U.S. Court of Appeals for the Ninth Circuit ruling that identified issues with an EPA study. These exclusions prevented the jury from fully understanding the scientific and regulatory landscape surrounding glyphosate and Monsanto’s responses to it.
2. Admission of EPA Findings: The court allowed the defense to introduce evidence from the EPA that deemed glyphosate safe. The plaintiff contends this was misleading – because it is – and that the EPA’s findings, which they argue were irrelevant to the claims of common-law negligence, gave undue weight to the defense’s argument on the safety of glyphosate.
3. Amendment of Orders Regarding Evidence: The appeal also takes issue with the timing and manner in which evidentiary orders were amended, particularly those concerning the admissibility of the IARC study. The plaintiff argues that these amendments and the subsequent trial court rulings restricted their ability to counter Monsanto’s reliance on regulatory approvals and to present a comprehensive view of glyphosate’s potential health risks.

March 19, 2024 – Bayer Seeks Alternative to Glyphosate

Bayer officials announced they are exploring a potential alternative to glyphosate, the key component in Roundup weed killer, which is associated with a heightened risk of non-Hodgkin’s lymphoma and has resulted in significant legal challenges for the company. This move to find a substitute for glyphosate is viewed by many as an indirect way of recalling Roundup, effectively withdrawing the controversial ingredient implicated by numerous plaintiffs in causing their cancer from the market.

Keeping Roundup on the market as it is now complicates Monsanto’s settlement process. Introducing a new version of Roundup, one without glyphosate, would be a great move toward mitigating these legal and public relations challenges. By developing and marketing a glyphosate-free alternative, Monsanto can demonstrate a commitment to safety and a willingness to address the concerns that have led to endless lawsuits and billions in settlements and verdicts. This shift could potentially reduce the company’s legal liabilities and facilitate a more straightforward path to settling existing lawsuits.

March 14, 2024 – Bayer Claims Bankruptcy Possible

Bayer planted an article in Bloomberg that appeared yesterday from anonymous sources that it is considering the Texas Two-Step bankruptcy. This strategy is named after a Texas law that allows corporations to divide their assets and liabilities, then push the liability-heavy unit into bankruptcy as a means to negotiate a comprehensive settlement.

It does not work in mass torts with solvent companies as 3M Co. and Johnson & Johnson learned just last year in the two biggest mass torts in the country. The article points out that experts say the chances of success with the Texas Two-Step are doubtful and it signals Bayer’s desperation.

So what is the thinking here and why leak it to Bloomberg? Settlement.  The one thing even a failed Texas Two-Step would do is temporarily slow things down. Now this is a threat that has some teeth.  Plaintiffs and plaintiffs’ lawyers sense that Roundup settlement is not that far away. Plaintiffs want their money for obvious reasons. They have suffered horribly and justice has already been long delayed for most victims.

Plaintiffs’ lawyers have a more nuanced reason to want a settlement sooner rather than later. In 2024, plaintiffs’ lawyers often finance the acquisition and handling of personal injury cases with mountains of debt.  These attorneys do not want delay and Bayer knows it.  If nothing else, this threat targets these lawyers to give them a little extra incentive to be flexible in settlement negotiations.

So, paradoxically, if you are looking for a tea leaf for a Monsanto Roundup settlement in 2024, I think we may have one here.

March 8, 2027 – Bayer CEO on Settlement

This is from Bayer’s CEO on the earnings call this week:

But it’s clear that a strategy of defense alone is not enough. We’re looking at the litigation topic from every angle, inside and outside the courtroom. That includes much more thorough engagement with other stakeholders in the realm of public policy. It includes considering every possible means to bring closure to these lawsuits for the company and for our customers.

Bayer is being cagey and its plans for two reasons.  One, it is a bad idea to telegraphic your intentions in how you will manage any piece of mass tort litigation. But I also don’t think it has a clear plan either.

March 7, 2024 – More on Kline Verdict in Philadelphia

Let’s take a closer look at the Kline case. I’ll admit I was surprised by this verdict.

Kline filed a lawsuit against Monsanto and Nouryon Chemicals LLC in March 2022, alleging that his regular use of the weed killer Roundup caused him to develop non-Hodgkin’s lymphoma. Kline claimed that he had been using Roundup regularly for six months out of the year for several years before his NHL diagnosis.

This case was not a particularly close call for the jury. They were out for only two hours before returning with a defense verdict.

The plaintiff will appeal because evidence about the Environmental Protection Agency’s safety evaluation of Roundup being vacated and the International Agency for Research on Cancer (IARC) findings that Roundup is a carcinogen were not allowed to be presented at trial.  So, the plaintiff will appeal evidentiary issues.  You do not see any statements about unfair and biased judges like you see from Monsanto, right?

This Monsanto victory lowers the average Roundup verdict in Pennsylvania to $607 million.

March 5, 2024 – Monsanto Gets Win in Philadelphia

Monsanto got a win today in Kline v. Monsanto; it’s its first win in Philadelphia.

March 4, 2024 – Monsanto Gets a Win (and a Tie)

The Roundup wrongful death trial in Delaware (Cloud v. Monsanto) ended in a hung jury on Friday. After deliberating for three days, the jury advised the judge that they were deadlocked, and a mistrial was declared. Another Roundup trial in Arkansas ended last week in a defense verdict in Cody v. Monsanto.

Again, Monsanto will win some of these cases.  Not every case of NHL was caused by Roundup. I’m not that familiar with Cody besides what I read in the Complaint (which did indicate the plaintiff used a great deal of the product).  But we will run some updated average verdict statistics later in the week, and we will have more verdicts soon.  My prediction is we get another huge verdict in March.

March 1, 2024 – Consolidation of Roundup Cases in NJ State Courts Sought

As the Roundup litigation heats up, Plaintiffs’ Roundup NHL lawyers are looking for paths to organize the litigation better.  This involves having an orderly process to administer these cases like we have, for example, in Philadelphia.

So attorneys have submitted a petition to the Administrative Director of Courts in New Jersey requesting that all Roundup-related lawsuits filed in the state, which allege a connection to non-Hodgkin’s lymphoma, be grouped into what is called in New Jersey Multi-County Litigation.

This is not a class action, each case would remain independent. Should the cases be consolidated under a single judge, this state-court mechanism would mirror the federal MDL approach, although hopefully at a faster pace than the California MDL. The presiding judge would oversee the discovery process on universally applicable issues and likely set up a “bellwether” trial system.

February 1, 2024 – What Is at Stake for Bayer

Reuters has a quote that I think is really on point:

January 30, 2023 – $6.7 Billion in Roundup Verdicts

This is the updated scorecard of Roundup verdicts:

The average payout for the last six Roundup lawsuits that went to trial, including a zero for the defense verdict,  is a stunning $617,387,142.86.

January 26, 2024 – McKivision Verdict

The verdict is back in McKivision: $2.25 billion. The jury awarded $250 million in compensatory damages and $2 billion in punitive damages.

This was an educated jury.  Half of the 12 jurors were college-educated, and two had master’s degrees.  Plaintiffs’ arguments are working in front of men, women, educated, uneducated, you name it.  Whoever did the focus groups for Bayer and told their lawyers to shoot for an educated jury should be fired.

Bayer should change the warning on Roundup today and do what it did last time – start settling cases with lawyers with the largest number of cases. I keep saying this verdict, and that verdict is a game changer, and we go back to business as usual.  But this may be the verdict that turns the tide.

 January 24, 2024 –  Monsanto Struggles with Witness

After a series of losses, Monsanto tried out a new toxicologist, David Saltmiras, in the McKivision trial yesterday.  Losing five trials in a row makes you want to try a new path.

It did not go well for Monsanto. Its lawyers tried—pushing the envelope like they pathologically do—to convert a fact witness into an expert witness, fusing opinions into his testimony. This did not please the plaintiff’s attorneys or Judge Susan I. Schulman, who moved to shut such testimony down.

January 11, 2024 – Monsanto’s “Cynical Diversion”

One leitmotif in these comments is my complaint that Monsanto, for lack of a better phrase, is such a baby when it loses.

Judge James Crumlish III of the Philadelphia Court of Common Pleas agrees.  He sternly opposed Monsanto’s attempt to remove him from the case after a $175 million verdict as a transparent and manipulative tactic. He said the company’s goal is not to contest the trial’s evidence but to undermine the jury and the trial judge. He described Monsanto’s efforts as a delay tactic and a cynical diversion.

Again, this is not a one-off.  Monsanto has previously attempted to disqualify judges in other cases, alleging bias against their defense. These efforts include a failed attempt to disqualify a California judge and accusations of favoritism against another Philadelphia judge after a $3.5 million verdict. Monsanto is the litigation version of politics in 2024.  If you disagree with me, it must be because you are acting in bad faith.

Why does any of this really matter?  Who cares if a defendant is being a baby?  A rational defendant in Monsanto’s shoes right now would be doing everything it could to settle these lawsuits. But stuff like this makes you wonder if the company is rational about this litigation.  I say the company… but maybe it is their outside lawyers. I’m not sure who is driving this train. But the adults in the room need to step up.

2023 Updates

Roundup Update December 6, 2023

Bayer loses. Again. Yesterday, another Philadelphia jury ordered Bayer to pay nearly $3.5 million to a woman who alleged that the company’s Roundup weedkiller caused her cancer. The verdict, reached after a three-week trial and two days of jury deliberation, comprised $462,500 in compensatory damages and $3 million in punitive damages.

This verdict represents Bayer’s fifth consecutive loss. There is another trial in Philadelphia next month. I predict that the verdict will be more than $3.5 million.

In 15 trials, juries awarded victims a few thousand dollars shy of $4.5 billion.  So, the average Roundup verdict is $300 million.  If you multiply $300 million by the estimated 40,000 remaining cases, you get $12 trillion. (This is a little misleading because of trials with multiple plaintiffs, but you get the idea.)

Bayer CEO Bill Anderson has a degree from MIT and has had great success as a CEO in his two previous pharmaceutical company stints, which is how he earned the Bayer job. He pledged to study the company before taking action. The time for action is now.  Because that train of success will come to a screeching halt if he does not find a way to settle the Roundup lawsuits.

Roundup Update November 20, 2023

In a verdict that truly redefines this litigation, a Missouri jury ordered Monsanto on Friday to pay over $1.5 billion in damages to three former users of its Roundup weedkiller, who claimed the product caused their non-Hodgkin’s lymphomas.

The state court in Jefferson City, Missouri, awarded the plaintiffs a combined $61.1 million in actual damages and $500 million each in punitive damages.

Valorie Gunther from New York, Jimmy Draeger from Missouri, and Daniel Anderson from California were the plaintiffs in the lawsuit. All three were diagnosed with non-Hodgkin’s lymphoma. The jury determined that Monsanto was responsible for their injuries due to not providing sufficient warnings about the dangers of Roundup.

These last four verdicts will almost certainly have an outsized impact on Roundup settlement amounts. Bayer keeps waiting to settle, hoping something good will happen. This is going from bad to worse to – I’ll say it again, existential threat – for Bayer.

We will get another verdict in Philadelphia in Martel v. Nouryon Chemicals, probably early next month. Bayer should settle that case today. But it won’t.

Roundup Update November 10, 2023

Bayer is not ready to settle. That message came out of a media call after Bayer’s third-quarter financial results were released. Bayer says they will keep defending Roundup litigation cases, particularly those involving glyphosate, its active ingredient, asserting to juries that the herbicide is safe when used as instructed.

I mean, what else is it going to say?   The company cannot say, “We are getting hammered again, we will make reasonable settlement offers, I hope the plaintiffs agree. But AG’s Chief Financial Officer, Wolfgang Nickl, said something else interesting:  “We have no appetite to write humongous checks and in a time where we have little free cash flow.”

When I was in college, I would get parking tickets at school. My plan for those parking tickets was to put them in my glovebox and try to forget about them. That is what Bayer is doing here. We do not have the money, so we will not pay it. But this is precisely what I did in college. These chickens will come home to roost. The problem is only going to get bigger.

Roundup Update November 9, 2023

Monsanto is seeking to overturn a $175 million verdict from a Pennsylvania state court trial, contending that the court unjustly influenced the jury to resolve a deadlock in a case regarding its alleged failure to warn about carcinogenic risks in Roundup. Monsanto’s brief accuses the court of several errors, including coercing the jury towards a consensus without informing the parties and allowing prejudicial evidence from the plaintiffs.

The company allegedly discovered post-verdict that the jury was initially deadlocked at 9-3, and the court had instructed them to either reach a majority or face extended deliberation. Very desperate argument. Judges always do this, and they have every right to do it.

Monsanto also criticized the court’s exclusion of evidence from regulators regarding the safety of glyphosate.

Bayer also may be declaring war on the entire mass tort process in Philadelphia. It has requested Judge James C. Crumlish III’s recusal from any rulings on the motion for a new trial due to these grievances. There is no real point to this – the judge is not going to recuse – other than to attack the judge and the process.

Roundup Update November 7, 2023

Bayer got a win today when the Ninth Circuit ruled that California’s mandate for products containing glyphosate to carry a warning label is unconstitutional, infringing upon agricultural producers’ First Amendment rights against compelled speech.

The court found that the warning made producers convey a message they fundamentally disagree with, concerning a matter that it thinks is not settled among the scientific community.

The requirement failed the “intermediate scrutiny” standard because it was not narrowly tailored to serve an important government interest, despite the International Agency for Research on Cancer classifying glyphosate as “probably carcinogenic” five years ago. As for whether it serves an important government interest… if California does not have an important government interest in keeping its citizens alive, it is hard to figure out where it does have a significant governmental interest.

Judge Mary M. Schroeder dissented, believing the lower court should review the sufficiency of the new warning and arguing that scientific consensus should not be a requirement for noncontroversial information in the context of compelled commercial speech. My guess is the Supreme Court will see it the same way.

Roundup Update November 6, 2023

Philadelphia is gearing up for its second trial concerning allegations that the herbicide Roundup causes cancer, scheduled to start today.

Martel v. Nouryon Chemicals will be the first time Pennsylvania-based chemical manufacturer, Nouryon Chemicals, is a defendant at trial. Plaintiffs allege that Nouryon supplied Monsanto with chemicals that increased Roundup’s carcinogenic potential. This is also the defendant that gets these claims in state court in Pennsylvania in the first place.

We will have many Roundup litigation updates in the future. After a holiday break, the next trial is set for January 8, and we will see more trials in Missouri and California state courts. Unless there is a big settlement, we are just getting started.

Roundup Update November 4, 2023

To put it in context, Bayer is worth $44 billion (much less than it paid for Monsanto). In five days, Bayer absorbed two verdicts against Monsanto totaling over $500 million. So those two cases, which make up .005% of the estimated pending Roundup claims against Monsanto, were over 1% of the total value of the entire company.

My point is Bayer can still settle these lawsuits at a number that does not decapitate the company. But we are no longer in an MDL where trial dates move slowly. The state court docket is producing more and more trials.   If Bayer does not act on settlement, things could spiral out of control pretty quickly. Bayer has to acknowledge that its playbook in this litigation is not working.

If you read these updates, I complimented many times Bayer’s strategy of letting the weakest cases go to trial, get defense verdicts, and quell the enthusiasm of plaintiffs lawyers. It worked. But it is just not a sustainable strategy. I figured the point was to leverage settle out as many cases as they could before the Philadelphia trials began.

My guess is Bayer began to believe the were winning because their lawyers found the secret sauce to win as opposed to crediting it strategy of trying cases with weak facts for plaintiffs.

Roundup Update November 2, 2023

The Legal Intelligencer correctly reports that plaintiffs’ Roundup attorneys are ramping up the pressure on Bayer to resolve numerous lawsuits or remove its Roundup pesticide from the market after three substantial verdicts amounting to over half a billion dollars were awarded against Monsanto.

Of course, the pressure of recent juries in Missouri, Pennsylvania, and California totaling over $500 million has changed the landscape. Plaintiffs’ lawyers want fair Roundup settlement offers and, at a minimum, a reasonable warning on the product.

Here is a quote from a Cornell professor:

“What’s surprising is they didn’t settle these cases. If I were Monsanto, I would settle the best cases with the best lawyers, and bring to trial the worst cases with the worst trials. I’m guessing they thought that was their strategy, too. But they made a mistake.”

But, actually, this is how Monsanto won nine in a row, doing exactly this. But Bayer did not want to overpay, and plaintiffs’ demands for settlement were just too high.

Bayer is said to be weighing bankruptcy. But I don’t think they really are. One option is the Texas Two-Step. The “Texas two-step” is a corporate maneuver that involves a divisional merger strategy often associated with liability restructuring for companies facing numerous lawsuits. They know the Texas Two-Step will not work and will just cost them millions more in legal fees from a company that is already bleeding legal fees.

Bayer could declare bankruptcy. But I do not think a single person within Bayer is really considering this as an option.

I laid out the plan a few days ago. Settle these cases. Put a warning on the product. And get back to ruling the agricultural world.

Roundup Update October 31, 2023

$332 million in Dennis. The jury awarded $7 million in compensatory damages and $325 million in punitive damages. Getting one huge verdict last week was great. But now three for three in just a few weeks totaling over $500 million is a complete game changer.

Yes, Bayer won nine trials in a row. We kept telling you it was smoke and mirrors – they are letting weak cases go to trial. These last three verdicts prove this hypothesis.

Like Caranci, there was nothing unusual about Mr. Dennis’s case. He used Roundup on his lawn and garden for 35 years and was diagnosed with non-Hodgkin’s lymphoma at age 51. These typical Roundup lawsuits are getting these incredible verdicts.

It is time to start talking about whether Roundup is an existential threat to Bayer. It would not be if Bayer just came to its senses and made reasonable settlement compensation to resolve these claims. But if this keeps spiraling – and there is a new trial next month – there is no telling where it leads.

Roundup Update October 28, 2023

$175 million verdict in Caranci!!!!

Roundup Update October 25, 2023

It is good to see reports that Bayer made no offer in the Roundup lawsuit that resulted in a $1.25 million verdict on Friday. Bayer is letting go to trial only cases it is extremely confident it can win. So it is encouraging to see plaintiffs win a case it seems Bayer thought was a slam dunk.

Getting a win next month in Philadelphia or San Diego would be huge for the 40,000 plaintiffs who have lawsuits pending.