Judge Suggests Warning Label And Addresses Major Areas of Concern In Future Roundup Settlement Hearing

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The backstory: 

  • Over 125,000 individuals have filed Roundup cancer suits against Monsanto, alleging that the weed-killing product caused them to develop a rare type of cancer, non-Hodgkin’s lymphoma (NHL).
  • The Monsanto corporation was acquired by Bayer AG for $63 billion in 2018, roughly one month before the first Roundup suit went to trial.
  • Monsanto lost that case and two others that have gone to trial. Each of the plaintiffs who won their cases against Monsanto received multi-million-dollar awards.
  • In June 2020, Bayer, seeking to put an end to Roundup litigation it inherited by taking over Monsanto, announced it would settle the bulk of the 125,000 suits for nearly $12 billion, including money that would go towards settling any claims that had hitherto not been filed.
  • One month later, the U.S. District Judge overseeing Roundup multidistrict litigation, Vincent Chhabria, shot down Bayer’s initial $2 billion plan to resolve future Roundup suits. 

Bayer’s “Plan B” to resolve future Roundup litigation is also being scrutinized by Judge Chhabria. 

Reuters news agency is reporting that a key hearing to discuss the plan is set for tomorrow. But Chhabria’s remarks from earlier today are putting the $2 billion proposal, which would create a class of people exposed to Roundup but have yet to develop cancer, in doubt. 

Should the agreement be approved by Chhabria, free medical exams and up to $200,000 in compensation would be provided to two types of class members: 1) those who have already been diagnosed with NHL but have yet to retain legal representation (many people in this class are migrant farm workers); 2) those who have been exposed to Roundup but have yet to be diagnosed with any medical problems related to the herbicide. 

Would Adding A Warning Label Limit Future Lawsuits?

Chhabria hinted that he may, according to Reuters, “evaluate the plan against other options, including Bayer adding a cancer warning label to Roundup.”  

Because federal law still permits the sale of Roundup, Bayer has been reluctant to have a cancer warning label added to the Roundup product line the company inherited from Monsanto.  

According to ClaimsJournal.com, Chhabria said of adding a warning label, “For years I’ve been wondering why Monsanto wouldn’t do that voluntarily to protect itself.” Chhabria explained that a label would prevent further lawsuits and free up money to create a better offer for people already exposed.

ClaimsJournal.com says that Chhabria suggested wording for a label and revised it after getting feedback from Bayer’s lawyer. However, William Hoffman, a lawyer for Bayer, said he doubted the suggested label would protect against future lawsuits.

Roundup Settlement Problem #1: Sheer Volume Of Roundup Users

Reuters said that in a court filing, Chhabria posed the following hypothetical question: considering the sheer number of homeowners and farmworkers (as well as landscapers, groundskeepers, etc), who have been exposed to the herbicide, would it be even possible for the millions affected to be properly notified? 

Per ClaimsJournal.com, Chhabria opined that the settlement plan could potentially be reasonable for class one if members are properly informed of their rights and receive the compensation of up to $200,000. However, for class two members, Chhabria said he spent hours debating his concerns. In all likelihood, currently healthy Roundup users would never read their class settlement notice or understand the settlement proposal, Chhabria suggested.

“The question is whether this is too confusing and is speaking of a problem that is too distant,” he said.

Roundup Settlement Problem #2: Fair Compensation?

Chhabria also raised the question if the compensation was adequate. According to a 2006 study (not referenced by the judge) published in Leukemia & Lymphoma, the mean monthly cost of treating aggressive NHL during the initial treatment phase was nearly $11,000. An additional $10,000 was the mean monthly cost for palliative care. The five-year survival rate for aggressive NHL is 60%. The cost of treating NHL over those years would vastly exceed the $200,000 compensation.

Furthermore, to even be qualified for the top-tier compensation may prove to be challenging for many class members. 

Roundup Settlement Problem #3: Why Should Plaintiffs Join The Class In The First Place?

Considering that the three jury trials have resulted in multi-million-dollar verdicts in favor of the plaintiffs, and considering that a federal appeals court days ago upheld the plaintiff’s victory in the first federal Roundup trial, Chhabria asked why class members should agree to a settlement in the first place. 

Especially one that requires them to forfeit punitive damages and “Present at future trials a report from a science panel that will spend the next four years determining if Roundup causes cancer.”

To that last point, Reuters quoted David Noll, a professor at Rutgers Law School, who told the news agency, “The last question is a killer.”

Despite the questions posed by Chhabria that seem to cast serious doubt about tomorrow’s hearing to advance the settlement plan, Bayer said in a statement, per Reuters, that judges often raise questions for parties to address prior to hearings.

“We look forward to working with the court and the parties through the approval process to ensure the class plan is fair to all parties,” the company said in the statement. 

These three concerns are not the only ones Chhabria has addressed. In total, according to Reuters, there are nine areas of concern slated to be discussed in tomorrow’s hearing. Should those be addressed, a second hearing to discuss secondary concerns would be scheduled.

What’s Next For the $2 Billion Roundup Settlment Plan?

Chabbria said it would “be awhile” before he rules on the request for preliminary approval, “assuming you [Bayer’s attorneys] don’t come back and say you’re withdrawing it.”

Roundup users who have been harmed by the herbicide or beleive they may have been harmed do not have to join the settlement class should they wish to retain their full legal rights, including the ability to take Monsanto/Bayer to trial.

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