Bayer Unveils New Roundup Risk Management Plan After $2B Proposal Fails

Bayer said today it will initiate a series of actions to address potential future litigation over its Roundup weedkiller product following the rejection of its $2 billion Roundup class settlement yesterday by a U.S. judge.

Bayer said the new package of five measures, which include both legal and commercial actions, is designed to help the company “achieve a level of risk mitigation that is comparable to the previously proposed national class solution.”

The lawsuits against Bayer allege that Roundup causes cancer. Bayer has long denied these claims, pointing to conclusions by scientists and regulators including the U.S. Environmental Protection Agency (EPA) in support of the safety of glyphosate-based herbicides.

Judge Rejects Bayer’s $2 Billion Proposal to End Roundup Litigation

Judge Vince Chhabria of the U.S. District Court for the Northern District of California denied Bayer’s request for approval of its $2 billion settlement proposal, finding that certain parts of the plan were “unreasonable” in his six-page ruling.

The judge found that the proposal’s medical monitoring benefits did not take into account that people can expect to wait 10 or 15 years after exposure before developing the disease or that it is primarily contracted by older people over age 65. He also criticized the compensation fund that is designed to last only four years, or even a shorter period if it is exhausted earlier by claims from people already diagnosed with cancer.

In exchange for these benefits, the proposed agreement called for class members who elect to sue despite the existence of the fund to lose their right to seek punitive damages. They would also have to agree to admit at trial the opinion of a scientific panel that might undercut the opinions of their own experts. “[T]he reason Monsanto wants a science panel so badly is that the company has lost the ‘battle of the experts’ in three trials,” the judge wrote, adding, “At present, the playing field on the issue of expert testimony related to causation is slanted heavily in favor of plaintiffs.”

In sum, wrote the judge, the Bayer Monsanto proposal “would accomplish a lot for Monsanto. It would substantially diminish the company’s settlement exposure and litigation exposure at the back end, eliminating punitive damages and potentially increasing its chances of winning trials on compensatory damages.”

But it would “accomplish far less for the Roundup users who have not been diagnosed” with cancer, he wrote.

Chhabria added that these deficiencies are “bad enough on their own” but they are “exacerbated by the difficulties with effectively notifying people of the right to opt out of the class at the front end.”

Bayer Plan

Bayer said the court’s decision “closes the door” on a court-supervised national class solution to manage potential future litigation, which it believes would have been the “fairest, most efficient mechanism” for all parties.

“Still, we have legal and commercial options that together will achieve a similar result in mitigating future litigation risk, and we will pursue them as quickly as possible,” Bayer said in its announcement.

The company said it will take these five action “exclusively to manage litigation risk and not because of any safety concerns:”

1. Website: Creation and promotion of a new website with scientific studies relevant to Roundup’s safety, and a request that EPA approves corresponding language on Roundup labels. This will include a reference link to the label for all Roundup products that will take consumers and professional users to a website the company will maintain and promote containing scientific studies relevant to the safety concerns at issue in the litigation. Bayer said it intends to create this website regardless of whether EPA ultimately approves the label addition. Bayer said the website will not draw conclusions about the safety of Roundup but will provide a resource for users to help them make their own decisions about their use of the products.

2. Residential market: While the company will remain in the residential lawn and garden market, it will immediately engage with partners to discuss the future of glyphosate-based products in the U.S. residential market, as the overwhelming majority of claimants in the Roundup litigation allege that they used Roundup Lawn and Garden products. Bayer said none of these discussions will affect the availability of glyphosate-based products in markets for professional and agricultural users.

3. Advisory panel: The company said it will explore alternatives aimed at addressing potential future Roundup claims brought by individuals. The company also will explore the creation of an independent scientific advisory panel comprised of external scientific experts to review scientific information regarding the safety of Roundup.

4. Reassessment of ongoing efforts to settle existing claims. The company said it will continue to be open to settlement discussions. This a step the company said it is taking in “good faith to bring an end to the litigation and liability risk,” but it will regularly reassess whether this approach continues to serve the company’s best interests. In June 2020, Bayer announced a resolution to all pending cases and claims and most recently reported that the vast majority of these, approximately 96,000 total claims, have been finalized, are in the final stages of resolution or involve claims that are not eligible.

5. Continue appeals. While not new actions, the appeals of the Hardeman and Pilliod cases that went against Bayer will continue through the legal process, which Bayer sees as a step helping to manage future liability risk. The Carson case, now before the 11th Circuit Court of Appeals, also raises the same federal preemption issue – whether state-based failure-to-warn claims can stand if they are different from or conflict with federal law – that is central to this litigation. It is hoping for a favorable decision by the U.S. Supreme Court by mid-2022 on preemption or expert evidence to significantly reduce future liability risk.

Bayer said it is confident that this new five-point plan of legal and commercial actions provides an “effective path for the company to manage and address any risks from potential future Roundup litigation.”

Source: Bayer

Source: Order Denying The Motion For Preliminary Approval, In Re: Roundup Products Liability Litigation

Resource: www.bayer.com/settlements