On Jan. 6, a the Atlanta-based 11th U.S. Circuit Court of Appeals announced that its full panel of judges would review a Roundup weedkiller lawsuit brought forth by a Georgia man, John Carson, who claims the controversial herbicide caused his cancer. Carson was diagnosed with non-Hodgkin’s lymphoma (NHL) in 2016.
Bayer AG, who acquired Monsanto’s line of products and legal liability in 2018 for $63 billion called the decision by the 11th Circuit one of the most important developments in 7 years of Roundup litigation.
If the 11th Circuit rules that because there is no federally-mandated cancer warning label on Roundup products this could be the legal ruling Bayer has been waiting for. (There is no federal warning label due to the fact that the Environmental Protection Agency has ruled that glyphosate, the main active ingredient in Roundup, does not pose a health risk when applied according to the label instructions.)
Bayer has argued that the Federal Insecticide Fungicide Rodenticide Act (FIFRA), under which Roundup labeling laws apply, trump state failure-to-warn claims. Thus, all unresolved Roundup weedkiller lawsuits, of which there are 30,000, should be tossed.
In 2022, the U.S. Supreme Court refused to review two Roundup lawsuits that awarded three plaintiffs tens of millions of dollars each. (Edwin Hardeman: original award was $80 million; later reduced to $20 million; Alva and Alberta Pilliod: original award was $2 billion; later reduced to $87 million.) But if a majority decision by the 11th Circuit finds for Bayer in the Carson lawsuit, it could open the door for a future decision by the U.S. Supreme Court to review the case. If that scenario pans out, the Supreme Court could overrule lower court decisions that have found that FIFRA rules does not apply to Roundup cancer claims.
A three-judge panel of the 11th Circuit Court ruled in favor of Carson on Oct. 28, 2022. But the full panel later accepted Bayer’s petition to review the case.
After Monsanto lost the first Roundup cancer lawsuit in 2018 (Dewayne Lee Johnson; original award $287 million; later reduced twice to $87 million and finally $20 million) as well as the Hardeman and Pilliod cases in jury trials, Bayer settled approximately 95,000 similar suits for $11 billion. However, 30,000 plaintiffs refused to join the settlement. In order to stem the tide of future lawsuits, Bayer announced it would stop selling Roundup with glyphosate to consumers in 2023, although it will still sell weed-killing products with glyphosate to agricultural businesses and commercial farmers.