23
Feb
Bayer/Monsanto in Roundup/Glyphosate Case Stung with Largest Multi-Billion Dollar Jury Award, Asks States to Stop Litigation
(Beyond Pesticides, February 23, 2024) The latest string of billion-dollar plaintiff judgments against Bayer/Monsanto, the maker of Roundup™ with active ingredient glyphosate, does not yet signal a capitulation by Bayer or a win for public health or the environment in the United States. A jury award of $2.25 billion, the largest to-date, was handed down in Philadelphia in January. As Beyond Pesticides reported previously, Monsanto has a long history of challenging scientific findings on Roundup/glyphosate and evidence of harm to human health, the environment, and crops themselves (see resistant super weeds here and here), as it seeks to avoid liability claims by those suffering from cancer.
Bayer Looking to State Legislatures for Protection from Lawsuits
As result of its failure in quash lawsuits, Bayer has moved its case to state legislatures, where it is seeking the adoption of statutes that preempt liability claims by damaged parties.
As reported by Beyond Pesticides, a rash of state legislation has been introduced in Idaho, Iowa, Missouri, and Florida, which would block plaintiff liability claims when pesticide products, like Roundup, cause harm. The chemical industry pushes the notion that the registration of its pesticide products with the U.S. Environmental Protection Agency (EPA) is a mark of safety that should shield it from liability. The industry want immunity from legal redress for the “failure to warn” those harmed from exposure to its products.
Successful verdicts against Bayer/Monsanto are generally based on the “failure to warn” principle and have withstood judicial appeals, including before the U.S. Supreme Court twice in the last couple of years. While Bayer announced a reformulation of its residential Roundup product would remove glyphosate by January 2023, its widespread agricultural and public landscaping uses continue (ed. note: it is unclear whether Bayer has removed glyphosate from retail Roundup formulations). Advocates point out that the proposed state legislation to limit liability, if passed into law, would release from liability all pesticide manufacturers responsibility for adverse effects associated with labeled product use. Tort liability claims rest on the manufacturers’ “failure to warn” consumers that when the company’s pesticide products are used as labeled and directed they may cause harm, such as non-Hodgkin lymphoma in the case of glyphosate-based Roundup.
Regulatory Failures Increase Need for Lawsuits Against Manufacturers
In December, farmworker organizations and Beyond Pesticides, represented by the Center for Food Safety, filed a petition with EPA urging the agency to remove glyphosate from the market after having won a 2022 court decision forcing EPA to redo its science evaluation.
That 2022 court decision in the Court of Appeals for the Ninth Circuit ruled that EPA’s 2020 approval of glyphosate was unlawful. The court voided EPA’s “interim registration review” decision approving the continued use of glyphosate, issued in early 2020. “EPA did not adequately consider whether glyphosate causes cancer and shirked its duties under the Endangered Species Act (ESA),” the court wrote in its opinion. At the time of the decision, Beyond Pesticides said: “EPA’s failure to act on the science, as detailed in the litigation, has real-world adverse health consequences for farmworkers, the public, and ecosystems. Because of this lawsuit, the agency’s obstruction of the regulatory process will not be allowed to stand, and EPA should start shifting food production to available alternative non- and less-toxic practices and materials that meet its statutory duty.” As reported by the Center for Food Safety, counsel in the case, “[T]he court struck down, or vacated the human health assessment. The court also required that EPA redo and/or finish all remaining glyphosate determinations by an October 2022 deadline, or within four months. This includes a redone ecological toxicity assessment, a redone costs analysis of impacts to farmers from pesticide harms, as well as all Endangered Species analysis and mitigation.”
Failure to Warn
A Pesticides and You article (2005) by H. Bishop Dansby explains the U.S. Supreme Court decision on “failure to warn” in Bates v. Dow Agrosciences (U.S. Supreme Court, No. 03-388, 2005), which includes the following:
- Duty to Warn: Manufacturers have a legal duty to provide adequate warnings about the potential risks associated with their products, including pesticides. This duty arises from the recognition that manufacturers possess knowledge about the potential dangers of their products and have a responsibility to inform consumers about these risks.
- Negligence and Design Defect: If a plaintiff alleges that a pesticide product caused harm even when used according to the label, they may argue that the product was negligently designed due to a failure to warn. In other words, they claim that the manufacturer did not adequately warn about the risks associated with the product’s design. The court may view this cause of action as a “failure to warn” disguised as a “design defect.”
- Parallel Remedies: The court clarified that state common law tort actions, such as failure to warn claims, can run parallel to federal regulations under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). This means that even though FIFRA regulates pesticide labeling, state actions can still be pursued if they do not conflict with federal regulations and are not preempted.
Bates v. Dow cites an earlier case, Ferebee v. Chevron (Ferebee, 736 F. 2d, at 1541–1542), in which the court found: “By encouraging plaintiffs to bring suit for injuries not previously recognized as traceable to pesticides such as [the pesticide there at issue], a state tort action of the kind under review may aid in the exposure of new dangers associated with pesticides. Successful actions of this sort may lead manufacturers to petition EPA to allow more detailed labelling of their products; alternatively, EPA itself may decide that revised labels are required in light of the new information that has been brought to its attention through common law suits. In addition, the specter of damage actions may provide manufacturers with added dynamic incentives to continue to keep abreast of all possible injuries stemming from use of their product so as to forestall such actions through product improvement.”
As previously reported by Beyond Pesticides, the U.S. Supreme Court spoke with clarity in Bates:
“The long history of tort litigation against manufacturers of poisonous substances adds force to the basic presumption against pre-emption. If Congress had intended to deprive injured parties of a long available form of compensation, it surely would have expressed that intent more clearly. See Silkwood v. Kerr-McGee Corp., 464 U. S. 238, 251 (1984).[Footnote 25] Moreover, this history emphasizes the importance of providing an incentive to manufacturers to use the utmost care in the business of distributing inherently dangerous items. See Mortier, 501 U. S., at 613 (stating that the 1972 amendments’ goal was to “strengthen existing labeling requirements and ensure that these requirements were followed in practice”). Particularly given that Congress amended FIFRA to allow EPA to waive efficacy review of newly registered pesticides (and in the course of those amendments, made technical changes to §136v(b)), it seems unlikely that Congress considered a relatively obscure provision like §136v(b) to give pesticide manufacturers virtual immunity from certain forms of tort liability. Overenforcement of FIFRA’s misbranding prohibition creates a risk of imposing unnecessary financial burdens on manufacturers; under-enforcement creates not only financial risks for consumers but risks that affect their safety and the environment as well.”
Lawsuits Not Slowing Down
Beginning in October 2023, Bayer has racked up over $4 billion in verdicts and shareholders are punishing the company’s stock price. Bayer has slashed shareholder dividends by 95%, part of an ongoing effort to conserve cash in the wake of its 2018 merger with Monsanto. According to Reuters, “Around 165,000 claims have been made against the company for personal injuries allegedly caused by Roundup, which Bayer acquired as part of its $63 billion purchase of U.S. agrochemical company Monsanto in 2018.” They report that in 2020, “…Bayer settled most of the then-pending Roundup cases for up to $9.6 billion but failed to get a settlement covering future cases. More than 50,000 claims remain pending,” as of December 2023. In addition, two new Roundup trials have started in Pennsylvania and Arkansas, with an ongoing trial in Delaware and a case coming up for trial in California. Court watchers note that Bayer’s previous streak of earlier victories over plaintiffs may reflect a Bayer strategy of bringing the weakest plaintiff cases to trial first to deter others from filing lawsuits. And this strategy worked until it did not.
- January 2024: Pennsylvania $2.25 billion
- December 2023: Pennsylvania $3.5 million
- November 2023: Missouri ordering $1.56 billion to be paid to four plaintiffs.
- October 2023: Philadelphia $175 million verdict
Bayer Legal Strategy Failing
Bayer has lost almost all of the cases filed against it for compensation and punitive damages associated with the plaintiffs’ charge that its product caused them harm. Its legal strategy, pursued through the court system up to the U.S. Supreme Court has failed to fend off ongoing litigation for harm associated with its glyphosate-based product. As Bayer’s website has touted in a five-point strategy to mitigate the company’s financial “risks” from future litigation, “A favorable ruling by the U.S. Supreme Court on the federal preemption question could largely end the Roundup litigation. The main question here is whether state-based failure-to-warn claims are preempted by federal law since the EPA concluded glyphosate does not cause cancer and approved the Roundup™ label without a warning.”
Bayer is not giving up on the current U.S. Supreme Court to overturns current law, as established by previous court decisions, including Bates v Dow. However, that strategy is not succeeding, at least not yet. As Beyond Pesticides previously reported, Bayer’s efforts in the last year have been rebuffed twice by the U.S. Supreme Court, letting stand two lower court rulings against the company. The company’s most recent loss, on February 5, 2024, came from the Eleventh Circuit Court of Appeals, which decided in favor of the plaintiff in Carson v. Monsanto on Bayer’s claim that FIFRA preempts a failure to warn claim.
Bayer Monsanto “History of Disinformation, Corrupted Science and Manufactured Doubt about glyphosate”
Beyond Pesticides reported in December 2022 on the release of ‘Merchants of Poison, a report was issued by U.S. Right to Know (USRTK, a nonprofit investigative research group focused on promoting transparency for public health), Friends of the Earth (FOE), and Real Food Media. It carries the pithy subtitle, “A case study in disinformation, corrupted science, and manufactured doubt about glyphosate,” a description cited by the Friends of the Earth press release as “at the core of the pesticide industry’s public relations playbook.” The report comports with Beyond Pesticides’ coverage of the pesticide industry’s egregious misbehavior, and of glyphosate, the world’s most widely used herbicide.
Organic Land Care is a Viable Solution Now
While the agrichemical industry continues to argue that chemical-intensive farming and land management is needed for higher yields, the data says that is not the case. Please see Research on organic agriculture shows it can provide quadruple the performance, synergizing financial, human health, ecological, and socio-economic well-being. See Beyond Pesticides’ webpage on Organic Agriculture for more information. Additionally, toxic herbicides are not needed for beautiful turf systems, whether playing fields, parks, school yards, or open spaces. Please see Parks for a Sustainable Future and join with Beyond Pesticides to convert community parks and playing fields to organic land management.
See this recent Beyond Pesticides summary of the health risks of pesticide exposures, and a deeper dive on glyphosate’s and pesticides’ broad environmental harms, pp. 9 and 17, respectively, and 2017 Beyond Pesticides’ glyphosate fact sheet and updated glyphosate news and litigation coverage here.
All unattributed positions and opinions in this piece are those of Beyond Pesticides.
Sources:
Philadelphia jury awards $2.25 billion to man who claimed Roundup weed killer gave him cancer; US Supreme Court case Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005)
Postscript:
Primer on Federal Preemption, Pesticide Regulation, and U.S. Supreme Court, Bates v. Dow 2005
As H.Bishop Dansby, Esq. wrote in Beyond Pesticides’ 2005 Pesticides and You, “Federal pre-emption has the potential for effecting the aims of conservative tort reformers because it transfers responsibility for safety of products from the courts to administrative agencies… the legal concept of federal pre-emption means that federal law and regulation takes the place of state law…the bottom line of this double talk is that state tort actions are once again allowed against pesticide manufacturers. FIFRA pre-emption is to be interpreted narrowly as affecting only the regulation by states of the wording of the label. Even failure to warn causes of action are allowed, on the theory that state actions can run in parallel with FIFRA regulation… If a plaintiff alleged that a pesticide product was negligently designed because it harmed a person even when applied according to the label, the court would rule that such a cause of action was really a “failure to warn” disguised as “design defect.” In other words, if the EPA had decreed that the product was a good product when used according to the label, the judgment about whether it was properly designed had already been made. This created the anomalous situation that products could be legal and harmful even when used as directed. Indeed, this is exactly the situation with cigarettes. But, after Bates, this is not the law as to pesticides. The Bates court was clear that it intended to allow state common law torts to be a parallel remedy to FIFRA regulation: Private remedies that enforce federal misbranding requirements would seem to aid, rather than hinder, the functioning of FIFRA. …FIFRA contemplates that pesticide labels will evolve over time, as manufacturers gain more information about their products’ performance in diverse settings. As one court explained, tort suits can serve as a catalyst in this process: “By encouraging plaintiffs to bring suit for injuries not previously recognized as traceable to pesticides such as [the pesticide there at issue], a state tort action of the kind under review may aid in the exposure of new dangers associated with pesticides. Successful actions of this sort may lead manufacturers to petition EPA to allow more detailed labeling of their products; alternatively, EPA itself may decide that revised labels are required in light of the new information that has been brought to its attention through common law suits. In addition, the specter of damage actions may provide manufacturers with added dynamic incentives to continue to keep abreast of all possible injuries stemming from use of their product so as to forestall such actions through product improvement.” Ferebee, 736 US Supreme Court clearly indicated that the pesticide manufacturers remain responsible for harm their products may cause when used as labeled in Bates v Dow:
“Because it is unlawful under the statute to sell a pesticide that is registered but nevertheless misbranded, manufacturers have a continuing obligation to adhere to FIFRA’s labeling requirements. §136j(a)(1)(E); see also §136a(f)(2) (registration is prima facie evidence that the pesticide and its labeling comply with the statute’s requirements, but registration does not provide a defense to the violation of the statute); §136a(f)(1) (a manufacturer may seek approval to amend its label). Additionally, manufacturers have a duty to report incidents involving a pesticide’s toxic effects that may not be adequately reflected in its label’s warnings, 40 CFR §§159.184(a), (b) (2004), and EPA may institute cancellation proceedings, 7 U. S. C. §136d(b), and take other enforcement action if it determines that a registered pesticide is misbranded.”
From Bates v. Dow: reference to EPA general waiver of efficacy review
In 1978, Congress once again amended FIFRA, 92 Stat. 819, this time in response to EPA’s concern that its evaluation of pesticide efficacy during the registration process diverted too many resources from its task of assessing the environmental and health dangers posed by pesticides. Congress addressed this problem by authorizing EPA to waive data requirements pertaining to efficacy, thus permitting the agency to register a pesticide without confirming the efficacy claims made on its label. §136aTM(5). In 1979, EPA invoked this grant of permission and issued a general waiver of efficacy review, with only limited qualifications not applicable here. See 44 Fed. Reg. 27932 (1979); 40 CFR §158.640(b) (2004). In a notice published years later in 1996, EPA confirmed that it had “stopped evaluating pesticide efficacy for routine label approvals almost two decades ago,” Pesticide Registration Notice 96–4, p. 3 (June 3, 1996), available at www.epa.gov/opppmsd1/PR_Notices/pr96-4.html, App. 232, and clarified that “EPA’s approval of a pesticide label does not reflect any determination on the part of EPA that the pesticide will be efficacious or will not damage crops or cause other property damage.” Id., at 5, App. 235.
