By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.
The U.S. Supreme Court today declined to hear an appeal of an $87 million judgment against Bayer AG awarded in a California lawsuit to Alberta and Alva Pilliod, who contracted cancer after three decades of use of Bayer’s Roundup herbicide, according to Reuters, U.S. Supreme Court again nixes Bayer challenge to weedkiller suits. Roundup is the most widely used herbicide in the world and was originally developed by Monsanto, which Bayer acquired in a disastrous 2018 deal.
This is the second time within a week that the Court has refused to consider a Bayer appeal of a similar lawsuit. Last week, the Court upheld a $25 million award to Edwin Hardeman, another California resident and Roundup user, who also developed cancer (see my earlier post, 9th Circuit Upholds $25 Million Judgement Against Monsanto for Glyphosate Liability, which discusses the first case Bayer had petitioned the Court to review). The Court’s decisions not to hear Bayer’s appeals may have been swayed by an amicus brief in which the solicitor general filed an amicus brief on behalf of the United States, urging the Court not to hear the case.
These decisions leave Bayer potentially exposed to billions of dollars in additional Roundup liability, Thousands of glyphosate lawsuits have been filed against Bayer (see 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; and Bayer Agrees to $10.9 Billion Glyphosate Settlement).
In its March annual report, Bayer said the company had resolved about 107,000 cases out of about 138,000 cases overall, according to Reuters in U.S. Supreme Court again nixes Bayer challenge to weedkiller suits.The Supreme Court’s two latest rulings have no bearing on these settlements.
Today’s Supreme Court decision triggers a provision by which Bayer committed to increase its litigation reserves in the event that either the Supreme Court declined to hear its glyphosate appeals, or ruled against the company after hearing its appeal. Per Reuters in U.S. Supreme Court again nixes Bayer challenge to weedkiller suits;
Bayer struck a settlement deal in principle with plaintiffs in June 2020 but failed to win court approval for a separate agreement on how to handle future cases.
In July 2021, Bayer took an additional litigation provision of $4.5 billion in case of an unfavorable ruling by the Supreme Court or in case the justices declined to consider its appeal.
The provision came on top of $11.6 billion it previously set aside for settlements and litigation over the matter.
Prior to these recent Supreme Court rulings, Bayer’s record at trial has been mixed, with the company losing three trials and winning four.
Bayer assumed outstanding glyphosate liability in 2018, when it acquired Monsanto, the developer of Roundup, in what Fierce Pharma described as one of the worst corporate deals in modern history, see Worst deal ever? Bayer’s market cap now close to the total cost it paid for Monsanto). Throughout its glyphosate saga, Bayer has often given the impression that its decision-makers are in a state of denial, lacking a firm grasp of the litigation risks the company faces or even a basic understanding of the U.S. legal process.
Take, for example, its statement after the Supreme Court denied its petition to hear its Hardeman appeal last week. Per Reuters in U.S. Supreme Court rejects Bayer bid to nix Roundup weedkiller suits.
Bayer said it “respectfully disagrees” with the court’s decision and that the company is “fully prepared to manage the litigation risk associated with potential future claims in the U.S.”
Bayer has said it should not be penalized for marketing a product deemed safe by the EPA and on which the agency would not allow a cancer warning to be printed.
The lawsuits against Bayer have said the company should have warned customers of the alleged cancer risk.
In addition to settling claims, Bayer has attempted to cap its Roundup liability by stopping sale of glyphosate-based products to the U.S. home and garden market, according to EcoWatch, Bayer to Pull Glyphosate Products, Including Roundup, From U.S. Home and Garden Market).
Ninth Circuit Complication
Earlier this month, a three-judge panel of the United States Court of Appeals for the Ninth Circuit complicated the situation further when it ruled that the Environmental Protection Agency (EPA) must reconsider whether glyphosate poses a health risk to humans and endangered species, according to EcoWatch, Court Rules EPA Failed to Fully Consider Glyphosate’s Risk to Humans and Wildlife. Recall that Bayer relies heavily on the EPA’s approval of glyphospate – and failure to classify the chemical as a carcinogen – to support its legal claims.
The plaintiffs in the Ninth Circuit case, which includes the Center for Food Safety, Beyond Pesticides, Farmworker Association of Florida, Rural Coalition and Organización en California de Líderes Campesinas, were challenging the Trump administration’s 2020 interim registration for glyphosate, which concluded that the herbicide did not cause cancer in humans or harm wildlife.
Per EcoWatch, in a 54-page opinion ,the Ninth Circuit panel held:
…that “the EPA did not adequately consider whether glyphosate causes cancer and shirked its duties under the Endangered Species Act.”
The court ruled that the EPA’s determination that glyphosate was “not likely to cause cancer” ignored evidence and the agency’s own Cancer Guidelines, the Center for Food Safety said. Further, its conclusion that the chemical did not threaten endangered species ignored the agency’s own admission that glyphosate “may affect” all 1,795 endangered or threatened species that are exposed to it. The court therefore tossed out the EPA’s human health assessment and gave the agency a deadline of October 2022 to finish or do over all remaining glyphosate assessments including the ecological toxicity assessment, the assessment of impacts on farmers and the Endangered Species assessment.
In a tweet last week, food safety advocates were doing a little victory dance in celebration of their glyphosate victories:
People who want a pesticide-free world score back-to-back court victories https://t.co/JpC9v9TqeR @CFSTrueFood, @ByondPesticides & others are doing victory dances this week after back-to-back court wins over #glyphosate
— GMWatch (@GMWatch) June 23, 2022
This victory dance may be a bit premature with respect to the EPA case, as the agency is highly likely to seek review by the full Ninth Circuit, and if denied, will likely seek certiorari review by the U.S. Supreme Court.