Bayer Roundup Litigation Update: Supreme Court Declines to Review Plaintiff’s $25M Bellwether Judgement

Monsanto, a subsidiary of Bayer and the long-time manufacturer of the weed killer Roundup, wanted the Supreme Court to throw out the appellate and district court decisions. These decisions resulted in Edwin Hardeman prevailing in his claims that exposure to Roundup caused his non-Hodgkin’s lymphoma.

What Happened Most Recently?

The Supreme Court’s decision lets stand the $25 million judgment in the first Roundup bellwether trial in the consolidated Roundup federal multidistrict litigation (Roundup MDL). Juries in three Roundup MDL bellwether trials, including the Hardeman case, have awarded plaintiffs multimillion-dollar judgments. Rather than thwart the tens of thousands of plaintiffs with lawsuits against Monsanto, this Supreme Court decision gives a green light for more plaintiffs to proceed to trial.

The Allegations & Arguments

Since Bayer acquired Monsanto in 2018, lawsuits alleging that the glyphosate in Roundup causes non-Hodgkin’s lymphoma have piled up.

Hardeman Case

In early 2015, Edwin Hardeman’s doctors diagnosed him as having non-Hodgkin’s lymphoma. This cancer starts in the germ-fighting lymphatic system. It can lead to abnormal white blood cells and tumors throughout the body. Edwin Hardeman then filed a lawsuit against Bayer and Monsanto claiming he developed cancer after decades of exposure to Roundup. Hardeman used the weed killer to contain poison oak and weeds on his San Francisco Bay Area property. In his case, among other allegations, Hardeman also argued that Monsanto violated a duty under state law. According to Hardeman, Monsanto failed to warn consumers that the glyphosate in Roundup might cause cancer.

Monsanto Petition for a Writ of Certiorari

In its petition for a Writ of Certiorari to the Supreme Court, Monsanto alleged two things. One, the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the EPA rulings that say a glyphosate cancer warning is not necessary on products preempt Hardeman’s state-law failure-to-warn claims. Monsanto also said it could not add such a warning on a product without EPA approval. However, the 9th Circuit Court had ruled that the EPA findings did not preempt Hardeman’s state law case.

Secondly, Monsanto argued in its petition that the 9th Circuit’s standard for admitting expert testimony violated Rule 702 of the Federal Rules of Evidence. However, the appellate court had upheld the lower court’s ruling that Hardeman’s expert witness testimony on causation was admissible under Daubert.

Furthermore, the high court declined to hear these Monsanto arguments.

What Happened Previously in the Roundup Litigation

MDL Consolidation

In 2016, the Judicial Panel on Multidistrict Litigation transferred and consolidated certain lawsuits. These lawsuits were concerning the allegedly carcinogenic qualities of the glyphosate-based herbicide Roundup. All “tag-along” actions were later filed in, removed to, or transferred to the Northern District of California. Judge Vincent Chhabria presides over the multidistrict litigation No. 02741.

Hardeman’s Jury Trial

A 2019 jury found that Roundup exposure was a substantial factor in causing Hardeman’s cancer. The jury then awarded Hardeman $5 million in compensatory damages and $75 million in punitive damages. The district court later reduced the punitive damage award to $20 million, which the appellate court upheld.

Monsanto’s Failed Appeal

A 9th Circuit panel did accept Monsanto’s argument that an EPA letter sent after the Hardeman verdict prohibited them from including a cancer warning on the Roundup product. However, the appellate court ruled that the 2019 EPA letter sent to all glyphosate registrants didn’t carry the force of law. Therefore, there was no preemption of Hardeman’s state law lawsuit. The unanimous panel also sustained U.S. District Judge Chhabria’s determination that the jury could hear a pathologist’s expert testimony.

District Court Rejects Bayer & Monsanto Settlement Attempts

Bayer did attempt to settle over 125,000 roundup cases. In 2021, Bayer offered to establish a $2 billion fund to be split between future claimants (who would get $5,000-$200,000 awards) and the cost to cover cancer monitoring, lawyers’ fees, and an advisory panel for claims review. The advisory science panel would examine whether Roundup causes cancer. The settlement proposal stipulated that the advisory panel’s determinations could be used as evidence in court. In June 2021, Judge Chhabria rejected the settlement proposal for future Roundup lawsuits. Judge Chhabria stated that the settlement proposal was inadequate for future victims diagnosed with cancer.

The judge had previously rejected a similar Bayer settlement proposal that also included a panel of scientists. In this proposal, the judge expressed concern over the impartiality of the scientific panel appointed by Bayer. Judge Chhabria ruled it would be unlawful for the panel to determine the facts instead of a judge or jury.

Outlook for Roundup Lawsuits

The Supreme Court saying that it won’t review the Hardeman case opens the floodgates for the other 125,000 lawsuits to proceed. Monsanto’s strategy of saying federal law preempts and prevents state law claims is substantially weakened. Plaintiffs may do well in 9th district court actions where a more flexible interpretation of what expert witness testimony qualifies for a jury has passed appellate muster.

Finally, the recent order from the 9th U.S. Circuit Court of Appeals directing the EPA to reexamine its 2020 finding that “glyphosate does not pose a serious health risk and is “not likely” to cause cancer in humans” bodes well for future Roundup plaintiffs.