02
Jun
Judge Rejects Bayer Proposal to Settle Future Roundup Claims
(Beyond Pesticides, June 2, 2021) U.S. District Court Judge Vince Chhabria last week rejected a proposal from multinational agrichemical company Bayer (Monsanto) to settle future court claims around the company’s flagship Roundup/glyphosate herbicide. In making his decision, Judge Chhabria asserted that the corporation’s proposal was inadequate for future victims diagnosed with cancer after using the herbicide. The decision has Bayer scrambling for a way out, and it indicated in a “Five Point Plan” released after the ruling that it will, “discuss the future of glyphosate-based products in the U.S. residential market.”
Bayer’s rejected proposal would have established a $2 billion fund, split between future claimants (who would receive between $5,000 and $200,000), and the cost to cover cancer monitoring, lawyers’ fees, and an advisory panel to review claims. Bayer has agreed to a separate $9.6 billion agreement to settle existing lawsuits, having lost several rounds of litigation where juries found in favor of plaintiffs who claimed that their use of Roundup resulted in their development of non-Hodgkin’s lymphoma. Recently, in mid-May, Bayer lost an appeal of the Hardeman vs. Monsanto case, as a three judge panel upheld a $25 million award.
Prior to rejecting the proposal on future claimants, the judge questioned why Monsanto (which Bayer purchased for $63 billion in 2018) never added a warning label to its Roundup products. “For years I’ve been wondering why Monsanto wouldn’t do that voluntarily to protect itself,” said Judge Chhabria of the label, according to Reuters. The judge was particularly concerned about individuals who are currently healthy, but likely to be diagnosed with cancer after using Roundup in the future. He noted that current healthy users may not adequately review or understand the proposal provided to them. Judge Chhabria expressed concern that Bayer could bring the case to the U.S. Supreme Court and receive a favorable ruling that the Federal Insecticide Fungicide and Rodenticide Act (FIFRA), the nation’s pesticide law, prohibits lawsuits claiming a corporation did not adequately warn consumers about health dangers.
Ultimately, Judge Chhabria determined that Bayer’s proposal had “glaring flaws” that would not benefit future victims. “If a settlement that reasonably protects the interests of Roundup users who have not been diagnosed with NHL (non-Hodgkin’s lymphoma) can be reached, that agreement must be presented on a new motion for preliminary approval,” said Judge Chhabria, of the U.S. District Court for the Northern District of California. “The attorneys pushing this deal repeatedly intone that it will be difficult for Roundup users who are diagnosed with NHL in the future to get a trial, given the limited capacity of courts and given that many plaintiffs will be ‘in line’ ahead of them,” he continued.
Bayer’s response and five point plan indicates the company will create a new website on safety issues associated with Roundup that is likely to be, for all intents and purposes, corporate propaganda. It will ask EPA to approve a corresponding label that links to this website. The company will also establish an “independent” science advisory panel that is part of Bayer’s attempt to “explore alternative solutions aimed at addressing potential future Roundup claims.” Those on the panel will also publish information to Bayer’s new website, the company says, but advocates question as being biased information.
The company will also “regularly reassess” whether its current approach to settling claims is able to “serve the company’s best interest.” Bayer indicates it has addressed nearly 96,000 total claims to date, out of 125,000 existing. And as Judge Chhabria alluded to, Bayer is banking on the Supreme court to “significantly reduce future liability risk” as it expects a favorable decision from the court in 2022 that would preempt state-based failure to warn claims that the company alleges are in conflict with federal law.
However, the largest potential change announced from company headquarters concerns consumer use Roundup products. After noting that it will not affect “professional or agricultural users,” the company appears to be reconsidering sales to residential landscape users of Roundup, “as the overwhelming majority of claimants in the Roundup™ litigation allege that they used Roundup™ Lawn and Garden products,” the company wrote.
Eliminating Roundup from store shelves is a move that regulators at the U.S. Environmental Protection Agency (EPA) should have taken long ago, according to advocates. It is unacceptable for regulators to sit by while tens of thousands of Americans develop cancer, and then leave the problem for the courts to work out, says advocates.
Evidence is mounting that cancer is not the only concern when it comes to glyphosate exposure. A growing body of research finds that urinary concentrations of glyphosate in pregnant mothers corresponds with adverse birth outcomes. Mothers with higher rates of glyphosate in their urine later in their pregnancy were more likely to experience preterm birth. And with this effect, glyphosate exposure beyond residential use is implicated, as one of the primary routes for pesticides in one’s urine is through food.
While Bayer hopes for a Hail Mary from the U.S. Supreme Court to cover its ill-fated gamble on Monsanto’s hazardous herbicide, local advocates are encouraged to continue the fight in their communities, in the marketplace, and with their elected officials. Work to eliminate pesticide use where you live, but don’t stop at Roundup- more toxic products are waiting in the wing to replace it if there isn’t an organic land care plan in place to stop toxic pesticide use all together. For more information on the benefits of alternative land care and how you can enact change in your community, see Beyond Pesticides Non-toxic Lawns and Landscapes Tools for Change webpage.
All unattributed positions and opinions in this piece are those of Beyond Pesticides.
Source: Reuters, Bayer press release, Progressive Farmer DTN
