Judge Rejects Bayer’s $2 Billion ‘Plan B’ To Resolve Future Roundup Weed Killer Claims

Legal News

Bayer’s revised plan to resolve future Roundup weed killer cancer lawsuits for $2 billion was rejected today by a U.S. judge, who called parts of the plan “clearly unreasonable.”

U.S. District Court Judge Vince Chhabria, who is overseeing all federal Roundup litigation, just days ago in a hearing, hinted that although he had major concerns about Bayer’s “plan B” proposal to resolve future Roundup lawsuits, he suggested that it would be a while before he rules on the request for preliminary approval.

Nonetheless, Chhabria issued an order today, per US News & World Report , denying Bayer’s motion for pretrial approval. Chhabria wrote that “the plan would accomplish a lot for [Roundup inventor] Monsanto,” which Bayer acquired for $63 billion in 2018, and “would accomplish far less for the Roundup users” who are currently healthy.

Chhabria called part of Bayer’s attempt to limit its liability from future Roundup cancer claims “clearly unreasonable.” He added that the plan would be unfair to class members who have suffered from cancer as a result of exposure to glyphosate-based herbicides such as the Roundup product line.

Chhabria castigated Bayer and the small group of lawyers who put the plan together in conjunction with the German pharmaceutical giant, which finalized the Monsanto deal just one month before the first Roundup trail. (Thus far, only three Roundup suits have gone to trial. In all three decisions plaintiffs won their trials and received multi-million-dollar compensatory and punitive damage awards.)

As he did in Bayer’s original proposal, Chhabria heavily criticized Bayer’s plan to establish a science panel to determine whether or not Roundup caused the plaintiffs’ cancer. That decision is usually left up to a jury to establish the facts. Bayer’s proposal to set up the panel, which would be non-binding, albeit potentially influential, Chhabria suggested, was based on an effort to dilute the success of the three plaintiff victories that have gone to trial.

“The reason Monsanto wants a science panel so badly is that the company has lost the ‘battle of the experts’ in three trials,” Chhabria wrote in his order.  “At present, the playing field on the issue of expert testimony related to causation is slanted heavily in favor of plaintiffs.”

Chhabria also derided Bayer’s plan to automatically include people in the settlement class who meet the criteria as a potential plaintiff. But if a potential plaintiff was added to the class without knowing so, or didn’t opt out of the settlement in time, they would lose their right to sue Monsanto/Bayer and receive potential damage awards.

Had Chhabria approved Bayer’s plan, Roundup litigation relating to NHL would have been stayed for four years. And even after four years, those in the settlement class would lose their right to seek punitive damages from Bayer. By rejecting the plan, Chhabria’s decision means that millions of residential users and farm laborers who have used Roundup but have yet to develop NHL will not receive free medical exams and up to $200,000 if they were diagnosed with non-Hodgkin lymphoma, or will be in the future.

But Chhabria doubted the face value of the medical exams, considering that there’s often a 10-to-15 year lag time between glyphosate exposure and the onset of NHL symptoms.

Hundreds of plaintiffs and their attorneys also criticized Bayer’s plan, arguing that receiving up to $200,000 is insufficient for NHL compensation. Chhabria also had issues with the potential compensation, noting that most claimants wouldn’t receive the maximum $200,000. In fact, most class members would receive $60,000 or less. Furthermore, that compensation might not be available after the plan expired, explained US NEWS & WORLD REPORT.

Bayer’s $2 billion settlement plan is seperate from the approximately $11 billion the company committed to, in June 2020, to resolve existing claims. Thus far, Bayer has settled roughly 90,000 claims while another 30,000 are being negotiated.

Chhabria wrote in his ruling, per US Right To Know, that Bayer’s desire to find a settlement is “not surprising because the alternative to settling — continuing to lose trials left and right — is not attractive.”

Added Chhabria, “In sum, the settlement proposed by these attorneys would accomplish a lot for Monsanto [and] would substantially diminish the company’s settlement exposure and litigation exposure at the back end, eliminating punitive damages and potentially increasing its chances of winning trials on compensatory damages….”

In last week’s hearing, Chhabria suggested that Bayer should add a warning label on Roundup products. Because the thousands of lawsuits allege Monsanto/Bayer failed to adequately warn consumers of the risk of using Roundup, adding a label would better shield the company from potential litigation.

In the meantime, additional lawsuits against Monsanto/Bayer will likely continue.

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