By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.
Last Friday, a three-judge panel of the United State Court of Appeals for the Ninth Circuit Court upheld a $25 million judgment against Monsanto, the maker of Roundup, the world’s best-selling herbicide, of which glyphosate is the active ingredient.
This decision, Hardeman v. Monsanto, is the second appeal of a glyphosate verdict to be decided thus far and the first to be handed down by a federal appeals court (see the earlier July decision by the Court of Appeal for the State of California here).
From the summary of Hardeman opinion:
The panel affirmed the district court’s judgment in favor of Edwin Hardeman in his action alleging that Monsanto’s pesticide, Roundup, caused his non-Hodgkin’s lymphoma.
Roundup is pesticide with the active ingredient glyphosate. Since 2015, thousands of cancer victims sued Monsanto in state and federal court. This appeal arose out of the first bellwether trial for the federal cases consolidated in a multidistrict litigation. The jury awarded Hardeman $5,267.634.10 in compensatory damages, and $75 million in punitive damages. The district court reduced the punitive damages award to $20 million.
Bayer acquired Monsanto in 2018 for $63 billion, in what The Wall Street Journal has since described as one of the worst corporate deals in recent memory. Bayer assumed all Monsanto’s outstanding legal liabilities, including those related to glyphosate litigation. Bayer’s spectacular miscalculation of the value of such liabilities will be a prime topic for future study in business and law schools.
In June 2020, Bayer agreed to a $10.9 billion settlement (see my earlier post, Bayer Agrees to $10.9 Billion Glyphosate Settlement). Bayer faced liability for about 125,000 lawsuits throughout the United States. The settlement included between $8.8 billion and $9.6 billion set aside to settle claims brought by lawyers representing some 95,000 plaintiffs. For the remaining 30,000 potential glyphosate plaintiffs who had yet to file lawsuits, the original settlement included $1.25 billion to cover their claims, and a controversial provision to allow a specially-created scientific panel to decide whether glyphosate causes cancer and at what levels, thus taking that decision away from future juries. Bayer and other litigants would nonetheless be bound by the panel’s determination in future proceedings. In July the presiding federal district court judge, Vince Chhabria, disallowed the controversial provision of the settlement, and Bayer withdrew the part of its original settlement proposal that focused on future lawsuits (see my earlier post, 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).
Bayer has since sweetened its settlement offer, setting aside $2 billion for these claims. The plaintiffs agreed to these settlement terms and this proposal is now pending before Judge Chhabria for preliminary approval (see Reply Brief Filed in Support of Motion for Preliminary Approval of Proposed Class Settlement). A hearing on this proposal is scheduled for May 19, according to Agri-Pulse, Roundup verdict of $25M upheld by federal appeals court.
What impact will the latest appellate decision have on the settlement? Some plaintiffs’ counsel will attempt to make Bayer sweeten the settlement that applies to the 30,000 potential claimants, but any change is unlikely to be significant. The parties were aware of the $25 million Hardeman judgement when they agreed to the settlement, and reached agreement in light of the uncertainty as to whether that judgment would be affirmed. The court is unlikely to pressure Bayer to pay more when the plaintiffs agreed to a settlement they deemed reasonable in light of that uncertainty. In addition, Bayer intends to appeal the Hardeman decision, according to Agri-Pulse:
The company said it will “pursue all legal options, including petitioning the U.S. Supreme Court to review this case.” Finally, Bayer said it continues “to stand strongly behind the safety of Roundup, a position supported by four decades of extensive science and the assessments of leading health regulators worldwide that support its safe use.”
Ninth Circuit Panel Decision
The three-judge panel shot down several of Monsanto’s arguments. Hardeman had made his failure to warn claim under authority of a California state statute and Monsanto argued that the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA preempted such a claim. The Environmental Protection Agency (EPA) – which has authority to allow the use of glyphosate, agreed, and filed an amicus brief in support of this position. Alas for Monsanto, the panel ruled, “FIFRA did not impliedly preempt Hardeman’s state failure-to-warn claim.” Again according to the summary:
Specifically, the panel affirmed the district court’s conclusion that Hardeman’s state failure-to-warn claims were “equivalent to” and “fully consistent with” FIFRA and therefore not expressly preempted.
This ruling “contradicts the legal position of the EPA, which argued that the pesticide registration process pre-empts lawsuits against products whose labels have been approved by the agency,” according to Capital Press, Federal law doesn’t pre-empt $25 million glyphosate verdict, 9th Circuit rules.
Further, the ruling has wider significance for the U.S. pesticide industry, as per Capital Press:
The pesticide industry, represented by Croplife America, claimed the judgment against Monsanto sets a dangerous precedent “well beyond Roundup and glyphosate.”
“The district court’s decisions under review raise the fundamental question of whether specific pesticide labeling requirements imposed by EPA in the exercise of expert scientific judgments under FIFRA can be overridden by the verdicts of lay juries under state law across a wide array of regulated pesticides,” the organization argued.
Monsanto also challenged the lower court’s decision to allow the World Health Organization’s 2015 classification of glyphosate as a probable carcinogen into evidence. This decision is significant because the EPA has not classified glyphosate as a carcinogen. From the summary of the panel’s ruling:
The panel held that the district court did not abuse its discretion in admitting the International Agency for Research on Cancer’s classification of glyphosate as probably carcinogenic and three regulatory rejections of that classification by excluding evidence from other regulatory bodies. The panel held further that even if these evidentiary decisions were erroneous, any error was harmless because it was more probable than not that the admission of the evidence did not affect the jury’s verdict.
Finally, Monsanto challenged the size of the punitive damages award. For the last couple of decades, the United States Supreme Court has reined in punitive damages awards on constitutional grounds, in a series of cases holding that ‘excessive’ such awards violate a defendant’s due process rights. The rule of thumb that has evolved is that punitive damages should not exceed a single-digit multiplier of compensatory damages, The panel decided that the punitive damages awarded to Hardeman, as slashed by the district court (Judge Chhabria), did not breach this constitutional limit. From the summary:
The panel held that evidence supported a punitive damages award, punitive damages were properly reduced, and the reduced award – while close to the outer limit – was constitutional. Specifically, the panel held that punitive damages were permissible under California law because substantial evidence was presented that Monsanto acted with malice by, among other things, ignoring Roundup’s carcinogenic risks. The panel held that the jury’s $75 million punitive damages award was “grossly excessive” given the mitigating factors found by the district court. However, considering the evidence of Monsanto’s reprehensibility, the district court’s reduced $20 million punitive damages award (a 3.8 to 1 damages ratio), while at the outer limits of constitutional propriety, ultimately comported with due process.
Bayer faces wider glyphosate problems. Several cities, states, and countries have banned Roundup, as Nick Corbishley noted last week in his NC post, Bayer-Monsanto Fails (At First Attempt) to Block Mexico’s Phaseout of Glyphosate and Ban on GMO Corn:
[A] growing list of countries, states and cities around the world are banning Roundup. They include Mexico, whose government issued a presidential decree on December 31 phasing out the use of the herbicide glyphosate, Roundup’s active ingredient, and banning the cultivation and importation of genetically modified (GM) corn. After pulling a few strings, Bayer was able to win a temporary reprieve from the government’s planned three-year phase out of the herbicide. But that decision has now been overturned by Mexico’s Collegiate Court.
Several environmental groups filed opening briefs in December in 9th Circuit litigation seeking to block EPA’s registration for glyphosate, according to Agri-Pulse, EPA faces lawsuits over dicamba, glyphosate and pesticide exclusion zones. As reported by Common Dreams in ‘Reckoning for Roundup Rolls On’: Ninth Circuit Court Upholds Verdict in Case Against Monsanto:
“Center for Food Safety is currently challenging the federal approval of glyphosate, the active ingredient in Roundup, as unlawful for a number of reasons—including cancer risks to farmers and farmworkers from exposure,” said [George Kimbrell, legal director of the Center for Food Safety]. “Today’s appeals court ruling is another reminder the Biden administration should act and revoke the registration of glyphosate immediately.”
As much as I hope otherwise, I think it extremely unlikely at this point that the Biden EPA will take on big Agri and ban glyphosate.
The Bottom Line
In the unlikely event the EPA were to enact a U.S.-wide glyphosate ban, Bayer would undoubtedly step up ongoing efforts to promote use of its herbicide elsewhere. Poorer countries would be obvious targets of such efforts. Note that other countries besides Mexico – including India – are wary of glyphosate (see this account in The Hindu, Government moves to restrict use of glyphosate).
Even an immediate U.S. or worldwide ban would not rectify the damage to the soil and ecosystem from the widespread use of glyphosate.
I recall reading that glyphosate is used to dry out certain grains — like oats, so they can all be harvested at the same time. After reading that I quit eating oatmeal and wondered what other grains were prepared for harvest that way. At least I know what movie to watch again tonight — “Michael Clayton”. I am wowed by the commercial in the movie every time I watch it. I started playing with the idea of combining the leaf emblem on Eve from “Wall-E” with the leaf emblem for U-North for a T-shirt design.
Please let know when it is all right to eat my oatmeal again and let me know about any other grains I need to watch out for.
This victory is heartening, but very late, and it little mitigates my great disappointment that it comes from the courts — not from well-made laws passed for the Common Good, or regulation by the agencies that appear to work for the very malefactors they were created to regulate.
Almost all soybeans grown in the US are genetically modified -by Monsanto I think- to be “Roundup Ready”, meaning you can spray roundup on their “special” soybeans to your hearts content and they wont be affected. Regarding drying up the bean plants for harvest, I’m pretty sure they have a chemical for that too.
Anti-environment people always ask “but has it been proven that GMO’s are bad for you?” No, that study would take 500 years, but the larger issue is the evil monopolistic corporate behemoth that is trying to own all aspects of ag, “designing” agri-crap product “A” that leads to producers using agri-crap product “B” and so on, ad infinitum.
I reconcile such dark thoughts with a certainty that the few filthy wealthy who — avoid the crowds — and find their way to their bunkers … will be sealed into them … but not for all time because I believe some of the toys they bring to their bunkers might have value to the future societies of Humankind.
The statement ” meaning you can spray roundup on their “special” soybeans o your hearts content & they won’t be affected” is NOT correct.
It is sprayed on to mature the crop all at once to facilitate thje harvest & residue remains on the crop through the remaining process.
Certified organic grains are not desiccated with roundup. I’ve been eating only organic grains, since I learned that “non-GMO” doesn’t mean no glyphosate.
If you want to avoid gmos and glyphosate you can buy USDA certified organic products/grains. For what its worth, I’m an organic row crop/grain farmer. (smiley face)
Thanks! and I do that in most cases, with some especially’s like coffee,teas, dairy, and strawberries
I am afraid GMO plants and animals may be the only way to adapt them to climate change. I am not so optimistic that the slow, linear, and relatively optimistic changes to climate are the changes Humankind and Nature will experience. Changes may exceed the rate that evolution can adapt to them. But I share your GMO misgivings!
Well, GMO is a big word, kind of like chemicals. They aren’t either intrinsically safe or dangerous, some modifications would be fine, and some would be lethal, it’s sorting them that is a complex problem that we don’t have a handle on. But in common parlance these days GMO usually means roundup resistance, which is probably fine in itself, but if you use that roundup resistance to douse it in roundup then it isn’t any safer than the roundup use is. I’m undecided on how dangerous glyphosate(roundup) is, but I suspect that it is overused.
Watch out for beer. !!!
Roundup was (is?) used to produce an evenly ripened crop for harvest,
“Breaking new tests conducted by the consumer interest group U.S. PIRG finds that many popular beer and wine brands are contaminated with – glyphosate (the main ingredient in Roundup).
Roundup is the most widely used weed killer in the world. In 2015, the World Health Organization’s cancer arm declared glyphosate a probable human carcinogen. Last year Monsanto lost a HUGE lawsuit filed by a California man with Non-Hodgkin Lymphoma – the jury decided that Roundup caused his cancer and awarded him millions. This was the first of thousands of lawsuits filed.
U.S. PIRG tested 5 wines and 15 beers (some organic) and found glyphosate in 19 out of 20 of them.
The wine brands that tested positive for glyphosate are Beringer, Barefoot, Sutter Home, Inkarri Estates (organic), and Frey (organic). Sutter Home wine rang in with the most glyphosate at 51 ppb (parts per billion).
The wines that came out with the least amount of Roundup were both organic – Inkarri Estates Malbec Organic (5.3 ppb) and Frey Organic Natural White Blend (4.8 ppb).
(Source: U.S. PIRG report)
The beer brands that tested positive for glyphosate are Budweiser, Coors Light, Miller Lite, Sam Adams, Samuel Smith (organic), New Belgium, Corona, Heineken, Guinness, Stella Artois (beer and cider), Ace Perry, Sierra Nevada, and Tsingtao. The beer with the most glyphosate was Tsingtao at 49.7 ppb, followed by Coors Light, Miller Lite, Budweiser and Corona.
(Source: U.S. PIRG report)
How did this weed killer end up in organic wine and beer?
I was a bit surprised seeing Samuel Smith’s organic beer coming up with some glyphosate in it. It’s worth noting that the organic beer and organic wine had the LOWEST amount on the list. This is because glyphosate is prohibited to be used on organic crops – and glyphosate in them is the result of contamination through water, rainwater, or drift from nearby crops. It wasn’t directly applied to their crops if they are certified organic.
Organic winery Frey Vineyards told USA Today that they do not use herbicides and “glyphosate in trace amounts is now found in rainwater because of its application to conventionally farmed agricultural land. Glyphosate in trace amounts can be found in many food products across the United States. We urge consumers to speak up to ban all use of glyphosate.“
You rip my heart in two Bob! Even our best solace for the this terrible destruction of basic health and well-being pollutes the very life’s blood of our temporary sanity! Please tell me no cannibus or shrooms are so polluted!
By the way … I hope you will not object if I begin a short-story with “Call me Bob.” I have wanted to start a story that way ever since high school English.
If you watch sports on TeeVee on a Saturday or Sunday they run ads for roundup and weed and feed constantly.
Years ago, we were pondering weed and feed— called the 800 number…if our chickens free range, when can we eat the eggs?
18 months, but we don’t recommend it.
The weeds are green, a plant whose virtues are yet undiscovered. Next up— letting the lawn go, and stopping the petro/ petrochemicals all together.
We now have no spray signs all around our perimeter. Our bee hives struggle over winter— are bees weaker from pesticides? Nicotinoids?
“We” are absolutely killing it. Heart-healthy oats with a little extra.
This is very good for two reasons, imo.
It holds to account the company pushing an herbicide with long known adverse health effects.
It may release soybean farmers from the draconian Monsanto ‘Roundup Ready’ seed enforcers, end the Monsanto-hired destruction of non-Roundup Ready seed saver cleaners, and let family farms work to what’s best for their farms. Here’s hoping.
Here’s to hoping your optimism for the two good reasons. I will definitely watch “Michael Clayton” again tonight and continue to collect tar and feathers.
Forget painting or dipping some of the malefactors in hot tar before the feathers — I am ready to — very slowly — boil some of them in the nasty stuff.
Having been around agriculture my whole life and I still farm. Glyphosate has become a real problem that no one wants to address. Here in the Northwest, I live in the area with the highest grain yields on the planet. The ground produces 100-200 bushels per acre, without irrigation. The high yields have been pretty much the same for last 90 years (before the use of 2-4-D and glyphosate). Also there has never been a real study on if glyphosate real increases yields, or a real ROI analysis.There been an on going fight between the fisheries biologists and the colleges of agriculture in the Northwest for a long time. If you take the chart of the amount of glyphosate used and com[pare it to the decline in (Char fish species) salmon, steel head and other types trout. Salmon is the one everyone looks you’ll see a direct relation to the increase in glyphosate use and the decline in salmon runs. The fisheries scientists have been ignored and suppressed. The universities get a lot of research money of the Ag colleges from Monsanto. Glyphosate exposure is real hard on young salmon. Or studies are now showing up on all other types of animals. I don’t think a study showing that glyphosate is killing farmers would make a difference. An example of how indoctrinated farmers are: organic wheat sells for over $15 a bushel and regular wheat sells for around $5. If going organic really lowered yields, say by a third, a framer would still may twice as much per bushel. And that’s not counting the extra money from not using chemicals and fuel.
Finally an economic analysis. !!!
“Also there has never been a real study on if glyphosate real increases yields, or a real ROI analysis.”
” An example of how indoctrinated farmers are: organic wheat sells for over $15 a bushel and regular wheat sells for around $5. If going organic really lowered yields, say by a third, a framer would still may twice as much per bushel. And that’s not counting the extra money from not using chemicals and fuel.”
The chemical ag approach is one of marketing. And the wholesale collaboration of the universities.
There is no hope – I’ll just have another beer and let’s see cereal is on the menu this morning.
Salmonid runs in the PNW are impacted by temperature, nitrates, pollutants including glyphosate. Dicamba use in US corn and soybean production is causing drift lawsuits and approval reviews and is a much more pernicious chemistry than glyphosate. Seed companies, including Monsanto are working on varieties that are resistant to 5 different chemicals already in use. Glyphosate use a dessicant on cereals is widespread in the upper plains but not used in the PNW. The end of the chemical regime in ag is coming, there are no new chemistries in the registration process only repurposing. The future is biology, using existing critters to address growing issues. Crop rotations to control weeds and disease are the future. GMO breeding will be used to combat climate change by inducing drought resistance and high temperature tolerance and will even pass organic standards.
does any one ever really understand that all plants are genetically modified, whether by humans or the environment. and humans have been doing that for 1000s of years, just not using the methods we can do today