Photo: Debra L Ferguson Image Bank
Bayer AG said it believes it has gained momentum in the Roundup legal battle and is becoming less likely the company will pursue new settlements with pending plaintiffs, the company told DTN.
For the second time in eight months, Bayer has asked the US Supreme Court to review a verdict in a Roundup product liability case. The new petition, filed in March, however, is the first Roundup challenge filed by Bayer alleging that a California jury’s award of $87 million in damages to cancer victims violated the Constitution.
The new motion asks the court to review the verdict in Pilliod v. Monsanto Company. In August 2021, a California state appeals court upheld the verdict awarding $87 million in damages to Alva and Alberta Pilliod of Livermore, California. The couple had used Roundup at home for about 30 years; the Pilliods later developed similar types of cancers, according to court documents.
Bayer filed a petition with the Supreme Court on August 16, 2021, seeking review of the Edwin Hardeman decision. The court has yet to rule on the motion. On December 13, 2021, the court asked the Solicitor General to file a factum on the case. No brief had been filed by April 14.
In 2019, a jury awarded Hardeman $80 million in damages after deciding his non-Hodgkin’s lymphoma was caused by his use of Roundup. Damages were later reduced to $25 million.
“The motion in Pilliod follows a similar filing in Hardeman,” Bayer told DTN in a statement.
“The company believes there are strong legal arguments to support the Supreme Court’s review and reversal of the Hardeman and Pilliod verdicts. Monsanto also won the last two cases in the Roundup litigation to go to trial, Clark and Stephens , and has reached agreements to resolve the vast majority of complaints.
“Following these two recent lawsuits and the Supreme Court’s request for the Solicitor General’s opinion in Hardeman, the company will be very selective in future settlement discussions.”
Bayer has faced thousands of similar lawsuits related to the glyphosate product.
In December 2021, a California jury ruled that Roundup did not cause cancer in Yucaipa resident Donnetta Stephens. In October 2021, another California jury ruled in favor of Bayer in a lawsuit brought by Los Angeles County, California, resident Destiny Clark on behalf of her daughter Ezra Clark, born in May 2011 and diagnosed with a non-Hodgkin lymphoma in 2016.
Like the Hardeman petition, Bayer’s new petition in the Pilliod case argues that the federal Insecticides, Fungicides, and Rodenticides Act, or FIFRA, prohibits states from adding new labeling requirements.
Additionally, Bayer said the EPA has found “neither Roundup nor its active ingredient, glyphosate, causes cancer in humans.
“The EPA has authorized the sale of Roundup, repeatedly approved the labeling of Roundup without a cancer warning, and informed pesticide holders that the inclusion of a cancer warning on the labeling of a pesticide containing of glyphosate would render it ‘mislabeled’ in violation of federal law, the company said. brief in the Pilliod case said.
The Pilliods were awarded damages because a jury “found that the omission of a cancer warning from Roundup’s label violated state law,” according to the brief.
Bayer said the $87 million award to the Pilliods violates the due process clause of the 14th Amendment because the company “acted in accordance with scientific and regulatory consensus” regarding the safety of its product.
Duer Creekattorney for the Penn State Center for Agricultural and Shale Law, told DTN there was a reason Bayer’s second appeal to the Supreme Court came nearly eight months after the motion in the Hardeman case.
Bayer had to wait 90 days after the California Supreme Court rejected Bayer’s appeal in the Pilliod case on Nov. 17, 2021, he said, before filing the March appeal in the Supreme Court. .
In July 2021, the CEO of Bayer AG Werner Baumann said on a call with investors that he believed the Hardeman case offered the company the best chance of a Supreme Court review.
In July 2021, Bayer announced a five-point plan to manage and resolve future litigation risks related to Roundup. Among the moves, Bayer announced it would stop selling Roundup products for residential use starting in 2023.
According to Bayer’s Third Quarter 2021 Financial Report, Bayer said the Pilliod and Hardeman matters are not covered by the settlement rejected by the U.S. District Court for the District of Northern California.
The court last year rejected a broader settlement from Bayer AG over concerns that the settlement would not adequately address the concerns of families who may later be diagnosed with non-Hodgkin’s lymphoma.
Baumann said on a Bayer earnings call in March 2022 that about 107,000 of the roughly 138,000 Roundup personal injury claims have been resolved or deemed ineligible for settlement. He said the company will not “enter into further settlement discussions” until the solicitor general files a brief in the Hardeman case.
According to a March 26, 2022 Bloomberg article, one of Bayer’s top investors, Singapore-based Temasek Holdings Pte, is pushing for Baumann’s resignation over what has been a costly acquisition of Monsanto. Bayer acquired the Roundup brands as part of its $63 billion purchase of Monsanto.
Bayer continues to maintain that Roundup’s ingredient, glyphosate, is safe.
In February 2022, Bayer alerted its retail partners that the company may not be able to fulfill some glyphosate contracts this spring due to a supplier manufacturing issue.
Bayer declared a “force majeure” event, a term used to describe an uncontrollable event that prevents a party from fulfilling a contract. The situation could leave some farmers waiting for glyphosate deliveries on shaky ground.
Learn more about DTN:
- “Glyphosate Supply Alert”, here
- “Court rejects Bayer Roundup settlement”, here
Todd Neeley can be reached at [email protected]
Follow him on Twitter @DTNeeley