Bayer Held Liable In The First California Roundup Appeal

Bayer Held Liable In The First California Roundup Appeal

Introduction

On Monday, Bayer was held liable for a former school groundskeeper's cancer, which was the first case to go to trial in the U.S. over the company's weedkiller Roundup, but the California appellate court reduced the total award from $78 million to $20.6 million.

The case was filed by a plaintiff who alleged that the company's glyphosate-based herbicide resulted in developing his non-Hodgkin’s lymphoma. In August 2018, a unanimous jury awarded $289 million to the plaintiff, including $250 million in punitive damages. Following multiple objections by the jurors, a state judge later slashed the verdict to $78 million.

Bayer appealed at the Court of Appeal, arguing that the entire verdict must be overturned as Johnson's claims are preempted by the Federal Insecticide, Fungicide, and Rodenticide Act.

During cross-appeal, a unanimous three-judge Court of Appeal panel rejected Bayer's arguments stating, "None of these arguments are persuasive," and affirmed the jury's liability findings on claims of being negligent, failure to warn, and design defect.

However, the panel, after finding that the plaintiff's future non-economic damages award is not supported by his life expectancy, reduced the total compensatory damages award from $39.3 million to $10.25 million, along with corresponding punitive damages.

Last month, Bayer indicated that it would pay more than $10 billion, to settle about 75% of the lawsuits. Currently, Bayer is facing more than 125,000 Roundup lawsuits, and the company has acknowledged the filing of 52,500 lawsuits. The lawsuits are consolidated under MDL No. 2741 before U.S. District Judge Vince Chhabria in the U.S. District Court for the Northern District of California.

Earlier in the month, U.S District Judge Vince Chhabria was skeptical about the agreement that affirms a settlement of more than $10 billion to resolve thousands of claims alleging that the weedkiller Roundup causes cancer.

The concern is only with one part of the deal, which includes a plan for handling future claims brought by the users who develop non-Hodgkin’s lymphoma, a type of cancer, and regarding its approval, the judge in a filing said that he "is skeptical of the propriety and fairness of the proposed settlement, and is tentatively inclined to deny the motion.” He also asked questions about the formation of a scientific panel to determine whether the key ingredient, glyphosate, causes cancer and whether the agreement unfairly limits potential plaintiffs from suing.

The deal would include a payment of $8.8 billion to $9.6 billion to resolve 75% of the current lawsuits and a fund of $1.25 billion to address future claims against the manufacturer would be set as per the agreement.

Following the indication of skepticism, the group of plaintiffs who had initially filed a motion for preliminary approval of the class settlement meant to address future Roundup claims has withdrawn the motion.
Bayer, in response to the judge's filing, said that it would address the concerns raised at the preliminary approval hearing, scheduled for next week.