A report on Bloomberg.com says Bayer AG, the owner of the Monsanto Roundup weed killer brand, has struck a deal with a Georgia man, allegedly harmed by the notorious herbicide to keep fighting the company in court.
This move is most unusual because the end result of a settlement offer is to put an end to litigation.
So why is Bayer paying John Carson, a doctor who sued Monsanto in 2017, to keep fighting in court?
[ The Roundup litigation backstory: Bayer acquired Monsanto in 2018 for roughly $63 billion. In doing so, Bayer also inherited what would become a massive amount of Roundup lawsuits. In June 2020, after losing all three cases that have gone to trial and facing multi-million damage payouts, Bayer announced it would settle the overwhelming majority of 125,000 Roundup claims for approximately $11 billion. The company also proposed a plan to settle any future claims, setting aside $2 billion to do so. New Roundup claims are being filed virtually every day. The future Roundup cases settlement plan would put a hold on Roundup litigation for four years and caps compensation at $200,000. The plan is opposed by hundreds of attorneys and plaintiffs. A ruling on the plan is expected next month.]
Bayer’s ultimate goal is to have Carson’s case reviewed by the U.S. Supreme Court. A favorable ruling for Bayer would likely put an end to future Roundup lawsuits.
Which begs the question … out of all the Roundup lawsuits, why does Bayer feel most confident with the Carson case?
It’s likely because the judge in the district court case, although he rejected Bayer’s request to dismiss the lawsuit, granted Bayer a silver lining. According to Bloomberg.com, U.S. District Judge R. Stan Baker in Savannah ruled that Bayer had no duty to warn Roundup users about its cancer risk because the U.S. Environmental Protection Agency had previously approved the product’s label. This is what’s known as a preemption claim.
Not every judge ruling on Roundup litigation, however, has seen the preemption claim in the same light. But Bayer is banking on the fact that if the Carson case gets reviewed by the U.S. Supreme Court, it will get a favorable ruling based on the preemption claim.
First, though, Bayer would have to score a victory in a federal appeals court.
Is Bayer Gaming The System?
According to court papers, per Bloomberg.com, the settlement offer proposed to Carson’s attorney includes an undisclosed compensation to the plaintiff—if the preemption issue Bayer previously won is appealed to the U.S. appeals court in Atlanta. In addition, Carson, in order to receive compensation, must not declare that he won the case.
Attorney Brent Wisner, one of the leading plaintiff Roundup lawyers called the appeal a “sham,” in an interview with Bloomberg. Wisner added, that Bayer is “trying to buy an appellate decision.
University of Georgia law professor, Elizabeth Burch told Bloomberg that the deal is “troubling,” questioning if Bayer is manipulating the legal process. “The fact that Bayer is forcing this up on appeal in a way that clearly advantages them, it just doesn’t pass the smell test,” she told Bloomberg.
Click here to read the full report at Bloomberg.com.