Federal Judge Nixes Part of Glyphosate Settlement That Would Allow a Panel of Scientific “Experts”, Rather Than Juries, to Decide Whether the Chemical is Carcinogenic for Future Claims

By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.

Federal district court judge Vince Chhabria last Monday effectively torpedoed  a controversial part of Bayer’s proposed $10.9 billion glyphosate settlement, which he must approve – thus effectively nixing the provision.Bayer wants, a panel of specially selected scientific experts to decide whether something causes cancer or not, taking that decision away from future juries.

According to the New York Times, judge Chhabria said:

he “is skeptical of the propriety and fairness of the proposed settlement, and is tentatively inclined to deny the motion.” He raised concerns about the creation of a scientific panel to decide whether the key ingredient, glyphosate, causes cancer and whether the agreement unfairly limits potential plaintiffs from suing.

Glyphosate is the active ingredient in Roundup, the most widely used herbicide in the world, Bayer acquired  Monsanto in August 2018 and assumed its Roundup-related liabilities. Bayer now faces liability for about 125,000 lawsuits throughout the United States. Three multi-million dollar verdicts have been returned so far and Bayer is appealing each of these judgments.

Bayer is keen to cap its Roundup-related legal exposure not only for the 95,000 lawsuits that have already been filed, but also to bind the roughly 30,000 plaintiffs who have only got so far as to contact a lawyer but have yet either to file suit, let alone agree to any settlement offer.

The amount to be paid out for 95,000 existing lawsuits has been negotiated. The panel’s carcinogenicity determination would apply to and limit the options for those 30,000 potential plaintiffs. According to the NYT:

The settlement, announced two weeks ago after months of effort with the help of the veteran mediator Kenneth R. Feinberg, includes $8.8 billion to $9.6 billion to cover about 95,000 cases. In addition, $1.25 billion was set aside to finance the scientific panel and assist impoverished Roundup users with non-Hodgkin’s lymphoma.

As I mentioned when I last posted on this topic, in Bayer Agrees to $10.9 Billion Glyphosate Settlement (quoting the Wall Street Journal), such a provision would be rare. Not only will the panel decide on whether glyphosate causes cancer and at what levels, but Bayer and other litigants would be bound by its determination in future proceedings.

You can see why defendants would want such a provision. Juries are unpredictable and tend to side with sympathetic plaintiffs, When a plaintiff gets sick, the jury wants to blame someone. What I think many fail to understand that a potential plaintiff does not just march down to the  local court house and file a handwritten claim. That plaintiff must find a lawyer to help. For that task, plaintiffs’ law firms serve as entrepreneurs, sifting claims and bearing the costs for the litigation. Yes, they stand to make a lot of money for successful claims. Their contingency fees can top 35%. But here’s the kicker: the claims must be successful. They get paid nothing for flaky claims.

And many meritorious claims do not get heard, by any court nor make it to a jury simply because it is not worth a lawyer’s time to pursue them. This is especially at a time when legal “reforms” and the rightward shift in the makeup of courts mean even plaintiffs who are right get denied justice.

What Next?

What happens next?

Bayer for its part is eager to settle. As well it should be. According to Successful Farming:

Juries awarded large sums of money to plaintiffs in the three glyphosate cancer cases that have gone to trial. The litigation has clouded Bayer’s financial outlook since it bought Monsanto. When it announced the settlement agreements two weeks ago, Bayer said it would be less costly to resolve the lawsuits than to face “growing numbers of plaintiffs, upwards of 20 trials per year and uncertain jury outcomes, and associated reputational and business impacts.”

The NYT reports that Bayer would address the judge’s concerns at the preliminary approval hearing, scheduled for July 24. In the meantime, Bayer has withdrawn the original settlement proposal, according to Fierce Pharma:

Bayer has taken its cue from a judge and decided to rework the portion of its proposed Roundup settlement that focuses on future lawsuits.

On Wednesday, Bayer said lawyers representing a class of plaintiffs who claim the Roundup weedkiller caused their cancer had withdrawn a request for court approval of that $1.25 billion section of the settlement deal.

“The withdrawal will enable the parties to more comprehensively address the questions” raised by Judge Vince Chhabria, the company said.

The company says it is optimistic about reaching a settlement and issued the following statement, as Fierce Pharma reports:

“Bayer remains strongly committed to a resolution that simultaneously addresses both the current litigation on reasonable terms and a viable solution to manage and resolve potential future litigation,” the company said in a statement.

Now, it’s working with the plaintiffs on a plan B, and it might not take too long. “Although the Court is not aware of any Plan B, it would be surprising if none existed given the stakes involved and the novelty of Plan A,” Chhabria noted earlier.

Judge Chhabria’s eyes are wide open as to what is at stake, as the NYT reports:

Judge Chhabria asked in his filing whether it was lawful to shift the question of whether Roundup caused cancer to a panel of scientists and away from judges and juries.

He also pointed to the three previous multimillion-dollar verdicts and asked, “Why would a potential class member want to replace a jury trial and the right to seek punitive damages with the process contemplated by the settlement agreement?”

Exactly. That is the question.

So let’s hope he remains vigilant as this drama continues to unfold.

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  1. Doctor Duck

    I have no problem with empaneling experts to advise the court — there’s a long history of that. In this case I’d say let’s add the proviso that there can be no connection with any of them to the chemical industry, notably Bayer and Monsanto, yea even unto the 6th degree. Let’s see how many qualify.

    1. Jerri-Lynn Scofield Post author

      This is not an instance where the panel would merely advise the court. As you correctly point out, there’s a long history of that.

      But here, the panel would make the determination whether glyphosate causes cancer, and at what levels, once and for all, substituting its wisdom for that of future juries. as to future plaintiffs who haven’t yet filed any lawsuit.

      The judge had a problem with that, as do I.

      1. PlutoniumKun

        And note also that it leaves the onus of proof on litigants demonstrating that it causes cancer, rather than on Bayer to prove that it doesn’t.

        There is no generally accepted method of ‘proving’ the toxicity of any given substance, especially if it is suspected as causing cancer, as toxicological effects can be indirect or the result of complex interactions with other environmental substances. You can only meaningfully set out risk possibilities and uncertainties in the data, or you can make comparisons with other products. My bedroom door is currently kept propped open with a giant stack of EPA documents from 1996 summarising all known studies into dioxin – it still couldn’t come to a definitive ‘conclusion), and 24 years later, there still is no widely accepted conclusion as to just how dangerous dioxins might be. This, of course, makes it very easy for a scientist to stand and say honestly ‘there is no proof that dioxin is toxic at known background levels’. But that doesn’t mean its safe (or that said scientist would willingly expose his children to even low levels).

        Sometimes, the wisdom of a dozen or so unqualified people really is as valuable as scientists. I’d trust a jury to make that judgement as much as I’d trust a selection of scientists in a question like this. Scientists should provide the data, but they are no better than laypersons when it comes to making final judgements when data is clouded by uncertainty.

        1. Otto

          Small point, the FDA requires any approved drug be non toxic. While the definition of toxic can be debated that anything is or isn’t toxic, that debate doesn’t change reality. Water is not toxic. In enough quantities yes it will kill you but we call this “drowning”. With drugs you start with a small dosage of something – ‘x”, and monitor vital signs and do every blood test in existence, this continues until the amount given actual makes you sick. But there are two kinds of sick, one is where it exceeds the capacity of any given system in the human body, the other is where abnormal cell grow, mutations, & excessive immune system response occurs – that’s classical defined as toxic. Consider this is CV19 toxic? There may be no generally excepted method to determine what is toxic (which I would dispute) by clearly if I injected 3 ml of it into you and you got sick and died. I’d go to jail for life if not worse. There isn’t a jury in the world that wouldn’t see that cv19 is toxic. Or in the positive tense all juries would agree it was toxic.

          I know you are you of the gods @NC so I come in peace, this isn’t personal. I simply think there’s more to this issue. No beat downs.

        2. Lambert Strether

          > Sometimes, the wisdom of a dozen or so unqualified people really is as valuable as scientists.

          We should pay jurors well and put them up in lavish quarters. It’s insane that we don’t.

        3. JTMcPhee

          EPA’s activities regarding determining risks of chlorinated dioxins and dibenzofurans have been “clouded” by the lobbying and junk science of Dow Chemical, Monsanto and other interested parties on the corporate side. EPA’ s science panels have been “reformed” by partisan attacks from the corporatists at least since the Reagan Anschluss. The entire process has been warped by the introduction of loaded applications of “risk assessment” and “cost-benefit,,” and the gutting of Agency resources that were working the actual data generation and analysis. The corporatists, by “access” to the regulatory processes and crony biases, have loaded up the science advisory boardS and panels of “experts” and forced at best a Mexican standoff on all determinations on the subject. It’s all too easy to find highly credentialed “experts” to very subtly, or less so, put a big greasy thumb on the scales in these determinations. And the sheer volume of studies that have been generated with the intent to obfuscate and delay and defeat any solid determination of what seems pretty clear, that Roundup is bad juju, make it difficult or impossible for even an honest Agency staff to state the conclusion. Huge effort is required, by the few that survive in the Agency staff
          and are still working for an honest outcome on just this one among the tens of thousands of chemicals introduced into the environment for profit, to work the administrative processes to carry the wrongfully assigned burden of proof on the dangers of these substances. The originating legislation used to assign the burden to industry to demonstrate the safety of this stuff BEFORE they get forced on the rest of us. Now it’s up to the Agency, which has been stripped by the last five administrations of the necessary resources and had its culture polluted by decades of orders to “conduct good science” and the removal of advocates for the public good.

          The same is true of chlorpyrifos. Big Money has big power, and expecting any other kind of outcome of a panel proposed and even vetted by plaintiffs’ lawyers (who do want their own payday) is foolish. And of course any such conclusion would become “res judicata” for future matters, and the Agency would likely, in its present degraded state, also just knuckle under to the judicial imprimatur.

          After all, look who runs EPA’s Superfund cleanup program: Former Dow attorney Peter Wright:

          He spent 19 years at Dow, one of the world’s largest chemical makers, and once described himself in a court deposition as “the company’s dioxin lawyer.” He was assigned to the Midland cleanup in 2003, and later became a lead negotiator in talks with the E.P.A. It was during his work on the cleanup that the agency criticized Dow for the cleanup delays, testing lapses and other missteps.

          He spent more than a decade on one of the nation’s most extensive cleanups, one involving Dow Chemical’s sprawling headquarters in Midland, Mich. But while he led Dow’s legal strategy there, the chemical giant was accused by regulators, and in one case a Dow engineer, of submitting disputed data, misrepresenting scientific evidence and delaying cleanup. http://smartdissent.com/article/swamp-alert-dow-chemical-lawyer-will-run-epa-s-superfund-toxic

      2. Otto

        Well with trump turning the EPA completely dysfunctional, by removing science, I have a problem with that. A plaintiff’s lawyer needs to introduce something into evidence at some point. Right now by EPA standards rat poison I bought a week is no longer harmful to me or rats. Here take a swig. In general going to court against nearly trillion dollar international companies who hire a hundred lawyers is no small feat (I know I’ve done it). Plaintiffs need to be able to access science.

        This issue of specific expert expertise has been an issue the courts have been struggling with for at 30 years. Different circuits try different things. At a minimum the judge could appoint a special master. Recently the most famous use of this was against Microsoft. I don’t know what our ruling class thinks of any of this. Mostly it seems they throw “stuff” agaisnt the wall and see what sticks. I have been told on more than one occasion that I was driving a hard bargain that others settled for far less. I feel even when I win, I lose.

        1. JTMcPhee

          Let’s be honest, every president since Carter has played politics with EPA and science. Reagan did the largest initial damage, but Obama gave us “clean coal” and other bullshit. Not uniquely Trump by any means, and don’t anyone expect that a Biden admin would do any different.

      3. jcmcdonal

        This also ends up making it difficult to update the decision with newer evidence (which should be regularly happening). Maybe right now it isn’t convincing to the “experts” but in 5 years it may be undeniable even to the bought and paid for experts.

    2. tegnost

      experts testify to the jury, they’re not the jury, and I don’t see experts as being dispassionate. I have many tech expert friends, for instance, who’ve expertly told me that self driving is only 10 years a way for at least 20 years. It is possible bayer wants to narrow the jury pool to people it deems more likely to give them a break. Bayer wants a reasonable settlement, I want reasonable labeling so I can avoid random exposure to their product. Reasonable to bayer is a settlement, like in the finance industry which in this case also applies because look at all those benjamins, that reduces fines for their toxic behavior into a cost of doing business fine. Experts in their industry are likely to see things their way and shuffle all of us stupid people (that’s the implicit judgement on all non experts, which is of course total nonsense) off to the side to be led to the abbatoir in an orderly fashion, say by getting in line, for instance…

      1. JTMcPhee

        You can’t “avoid” these products. Glyphosate and so many other indisputably toxic chemicals are ubiquitous, no amount of “labeling” will let you avoid them in your own life.

        What’s needed going forward is deactivation of the proper burden of proof — corps wanting to profit have to prove that there are no negative impacts from their new chemical species BEFORE they are allowed to produce them. And to the argument that this would “halt innovation,” and keep “us” from having “useful” and “convenient” products, I’d say “too damn bad.” Going on down the path industry has staked out, under the ‘regulatory’ processes they now own, is just a death wish.

  2. Ben Oldfield

    From what I have gathered is that glyphosate is not a problem but the additives to get it into the plant is the problem. So strictly speaking the court/panel can say that glyphosate is safe and sweep the real problem under the carpet. Well gamed Bayer.

  3. Alex Cox

    There is no substitute for a jury trial. If Julian Assange, Chelsea Manning, and Craig Murray were facing juries, rather than politically appointed judges, their situations would be quite different.

    How fortunate that the judge in this case appears to be acting honestly!

    1. Otto

      Wait anyone charged with a felony has a constitutional right to a jury trial, national security or not. Which is why more often than not after making your life miserable by due process the charges are dropped.

  4. Tom Stone

    No one at Bayer thought about the possible consequences of buying a pig in a poke?
    “And two to take him” comes to mind.

    1. Otto

      Oddly they did. It was quite a debate, but they didn’t care in the end. They wanted the patents.

  5. timbers

    So basically, Bayer wants a TPP like setup, where the “court” is industry cherry picked lobbyists errrr experts. Not surprising a judge doesn’t care for that arrangement as it would make judges and juries superfluous.

  6. a different chris

    What’s funny (not haha funny, condolences to anybody that has gotten sick from the various witches brews we’ve inflicted on ourselves) is medical “science” is as farther from, say astronomy than astronomy is from the days they thought the Earth was the center of the universe.

    They could at least create equations that worked back then. Medical science gives stuff to rats, sees what happens, gives it to dogs, sees what happens (not cats because cats are bizarre) and if it isn’t too bad and seems to have some positive effect too, then that’s “science”.

    And it really is, a certain type of and the best we can do in some cases as a way to at least give us a point to begin. Aspirin is great (again, not for cats).

    But they get all hot and bothered when the same branch of science, is thrown in their face. “Hey this guy and that guy and that girl and… all got this sickness and they all had identical twins that weren’t around when they all were exposed to (something) and the twins weren’t sick. So (something) is really doing bad things.”

    Suddenly TPTB need you to prove causality, that substance A makes change B that causes (something). “No way, it was just coincidence!”.

    Well you can’t have it both ways. I hope Bayer finds that out.

  7. j7915

    essentialy, I think it was a replay from the Daimler-Chrysler scheme. IIRC correctly it was in Der Spiegel where the German Execs were deliriously happy that as an Amerikan/German Co. they could now get golden handshakes like the Amis. But in true German fashion the US employees were not able to buy the good star models at employee discounts. Can’t have the riffraff drive the top brand.

  8. Carlos

    With 50% or more of restaurants out of business permanantly, according to national studies by Yelp, a lack of discretionary spending by people out of work, the ability of people to demand and get safe organic food over factory food chemical junk is going to become stronger. Costco is the world’s biggest vendor of organic food, selling about the same percentage of organic as Whole Foods, which has become a fraudulent sideshow of distraction, obfuscastion and outright lying about the products they sell.

    1. Yves Smith

      The Yelp survey has problems since it lists 47% of restaurants as temporarily closed, which takes you to 100% when some restaurants are clearly open (where I live, over 40%)

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