Why The Roundup Settlement “Is An Abomination To The Tort System”

Legal News

Before the historic $11 billion Roundup settlement was announced in June 2020, over 125,000 individuals had filed claims against Monsanto (now owned by Bayer AG). Roundup plaintiffs allege that the herbicide/pesticide caused them to develop non Hodgin’s lymphoma, a rare type of cancer.

Approximately 90% of those claims were settled. In addition, Bayer has proposed a plan to settle future Roundup claims for an additional$2 billion. A public hearing is scheduled for May 12, in which the proposal put forth by settlement attorneys will be reviewed by U.S. District Court Judge Vince Chhabria. In the meantime, at least 300 lawyers have challenged the settlement. 

CorporateCrimeReporter.com profiled one of those attorneys opposed to the settlement, 

Gerson Smoger of Dallas, Texas. Smoger, who filed a 57 page brief in opposition to the settlement on March 31, 2021, told Corporate Crime Reporter, “I’m challenging this because it’s an abomination to the tort system.”

The tort system, for those not familiar with law theory, forms the backbone of personal injury lawsuits. The field of tort law covers how injured persons can hold an entity such as Monsanto accountable for losses. 

Smoger, further explained her opposition to the future Roundup litigation settlement plan, “There is a four year stay on all litigation. And the stay is not just against people with non-Hodgkin’s lymphoma. That stay includes all contract claims against Monsanto. Nothing can be brought for four years. At the end of four years, every single person in the United States who has been exposed to Roundup can never sue Monsanto for punitive damages or medical monitoring.”

In addition, Smoger says that Monsanto will continue manufacturing glyphosate, the active ingredient in Roundup, without any restrictions. (Monsanto, the corporate brand is no longer an entity. However, the company will still produce Roundup for its owner, Bayer AG.)

In other words, Roundup will stay on the market. Furthermore, Smoger argues, the settlement proposal includes any potential harm allegedly caused by lifetime exposure to Roundup—even though class members haven’t been exposed yet for a product that is going to continue to go on the market.

As for Smoger’s opposition to the proposed compensation, she told Corporate Crime Reporter, “The best you can probably do is between $25,000 and $65,000 for your injury of non-Hodgkin’s lymphoma, which probably costs you between $100,000 and $200,000 to treat, none of which you are entitled to get reimbursed for.”

Considering that the Roundup suits that have gone to trial have all resulted in jury verdicts of several million dollars each, Smoger suggests that the compensation in the proposed settlement plan is far too low. 

Smoger claims that had the three plaintiffs that have successfully sued Monsanto been included in the settlement class, they would have secured a fraction of compensation they were awarded in trial. 

Smoger explains that in order to be awarded the maximum settlement compensation— $200,00—class members have to go through several rungs on a ladder. “If you miss any of those rungs,” says Smoger, “you are stuck at a lower level.”

For example, Smoger points to plaintiff Dewayne “Lee” Johnson, the first person to successfully take Monsanto to trial. Initially awarded $289 million by a jury, Johnson has seen his award slashed twice, down to $20.5 million. Johnson blamed his non Hodgkin’s lymphoma on an incident in which he spilled Roundup on his body.

Thus, explains Smoger, Johnson’s exposure was actually relatively short, and as such,  he wouldn’t even reach the uppermost, third tier of compensation. Smoger hypothetically suggests Johnson would have been awarded a second-level compensation, which is between $10,000 and $25,000.

Another reason Smoger is opposed to the settlement plan is the high rate of lethality for non-Hodgkin’s lymphoma (NHL) sufferers during their first year of diagnosis. NHL is associated with a mortality rate of approximately 20% in the first year. To reiterate, Bayer’s settlement proposal puts a four-year moratorium on Roundup litigation. But that would mean that many people with NHL will die before the four year pause on Roundup lawsuits expires—should Judge Chhabria accept the plan. 

Smoger also explains that the lawyers involved in the class action settlement are not experienced Roundup litigators. It also rubs Smoger and other attorneys opposed to the settlement, the wrong way that the plan calls for a ban on punitive damages. 

For these reasons, Smoger and other Roundup plaintiff’s attorneys are opposed to the settlement plan.

To read the full report at Corporate Crime Reporter, click here


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