Bayer’s recent announcement that it would settle nearly 100,000 Roundup cancer lawsuits for nearly $11 billion comes with an asterisk.
The settlement does not include the lawsuit of one Dwayne “Lee” Johnson. Johnson is a former groundskeeper, who contends that long-term usage of Roundup and an accidental spillage of the controversial herbicide on his body caused a rare form of cancer, non-Hodgkin’s lymphoma.
In 2018, Johnson became the first plaintiff to successfully sue Monsanto, which Bayer acquired that same year for $63 billion. Johnson was awarded nearly $290 million by a San Francisco jury, which found that the main active ingredient in Roundup, glyphosate, caused Johnson’s cancer. A judge later reduced the award to $78.5 million. In July of this year, the California Court of Appeals upheld Johnson’s trial victory. But yet again, Johnson’s award was slashed, this time by over $50 million.
The latest development in this closely-watched case is that Bayer is asking California’s Supreme Court to review Johsnon’s $20.5 million award. Bayer’s argument is that the ruling runs contrary to federal law and regulatory findings, including that of the Environmental Protection Agency (EPA), which has determined glyphosate to be safe for humans. The petition to the California Supreme Court by Bayer says, “”In this case, the Court of Appeal affirmed a verdict that severely punishes Monsanto for complying with federal law.”
Should a manufacturer of a federally-approved herbicide be held liable under state law for failing to provide a cancer warning when the federal regulator determined federal law does not permit that warning? This is the main argument Bayer will be asking the California Supreme Court to weigh.
In June, a federal appeals court blocked California from requiring a cancer warning label on items that contain glyphosate. However, less than one month later, an appeals court ruled that Bayer has an obligation to warn consumers of the potential risk of the herbicide; a so-called Proposition 65 warning should be added to Roundup, owing to the fact that the state-passed initiative requires potentially-carcinogenic ingredients to carry a warning.
Johnson, the former groundskeeper, is also asking for a review of the appeals court ruling that reduced his damage award. His damages had been reduced because he is not expected to live much longer. Johnson wants the Court to decide if the wrongful actions of Monsanto, which has led to a “loss of enjoyment of life” should include damages for a shortened life expectancy.
Should the California Supreme Court rule in favor of Johnson, regardless if the damage award is increased or not, other Roundup plaintiffs may decide to back out of any settlement deal.
The settlement deal itself is in doubt, as a California judge threatened to allow the plaintiff’s litigation to restart, due to concerns that Bayer had manipulated the settlement process.