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.
Previous Litigation
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.”
Per Reuters in U.S. Supreme Court rejects Bayer bid to nix Roundup weedkiller suits:
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.
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Maybe the supreme court is worried about the future health of the non-aborted babies?
https://pubmed.ncbi.nlm.nih.gov/30894343/
The amicus brief looks more like a Biden administration gift to the plaintiff bar. The evidence is clouded and it is not obvious that Roundup causes cancer. Roundup allows no till cultivation which is ecologically very beneficial. The problem here is that the executives at Bayer were scientifically trained, and familiar with the German legal system. This would be decided by a Gutachter appointed by the court. They lose their license if they work for either of the parties. They generally look at all reasonable evidence. The Bayer executives figured that there was no reasonable evidence supporting these cancer claims. As a scientist I studied it as well and based on that bought stock in Bayer. They did not realize the US system is like the wild west. I figured it would be a good thing to go to the supreme court because the US needs to iron out its personal injury industry if it expects to maintain its economy and rebuild. After the amicus brief I sold out, losing little, because it became obvious that politics and campaign finance play are a huge factor here. A good book to read, always with a grain of salt, is Huber, Peter (1993). Galileo’s Revenge: Junk Science In The Courtroom. In Germany junk science in the courtroom is not so prevalent because of the Gutachter method.
You seem to have missed that the WHO deemed glyphosate as a probable carcinogen. That’s more than enough for a US jury.
You also missed what came out in discovery, that Monsanto allowed its workers to apply and test glyphosate only when wearing hazmat-suit-level protection. That also got the attention of juries. And more damaging admissions in Monsanto’s own files.
This isn’t a topic I’ve delved into in detail for some time, but my understanding is that WHO’s initial assessment was based on all environmental exposures, while they later stated that it was ‘unlikely’ to be a carcinogen in the specific context of consumers eating food exposed to glyphosate. Its a very old trick to declare something ‘safe’ by limiting the parameters of the study targets.
It is likely that farmers and workers are far more at risk than consumers.
Monsanto were very successful at promulgating the idea that it is very safe for consumers, despite evidence that they considered that their own employees needed strong protection for it. Back in the 1990’s when I was involved in some land management I was told multiple times that it was entirely safe and broke down into harmless compounds when applied. I was recently horrified to see spayed grass and weeds in a wildlife site, right underneath insect hotels built by local schoolchildren. The spraying had been done by well meaning local volunteers, seeking to keep the walk ‘tidy’.
Carcinopologist for corporate profits.
If it’s so safe, Bayer officials should put a drop of it in a jug of water, proctored, no cheating, and then have all their family members drink some of it on camera. What a reassuring tv ad for Roundup that would be!
People who feel that Monsanto/Bayer and their Glyphosate product are being unfairly maligned can show their support for glyphosate by eating food with trace amounts of glyphosate in it. There are now lists of foods that have been measured for glyphosate amounts. Some foods have more glyphosate in them than others.
People who support BayerSanto and Roundup should eat the highest-glyphosate residue food they can find. They should base their diet on highest-residue-amount foods.
Give a glass of it to Obama. He’ll drink anything.
Yes…Lead + glyphosate makes for a delicious cocktail. I expect the Obamas will be serving it at their next soiree.
. . . or pretend to . . .
And the adjuvants and various other fellow-traveler ingredients in the specifically Roundup-brand of glyphosate may be carcinogenic their own selves, as well as heightening the carcinogenicity of the glyphosate.
Roundup chelates various positive metal ions very strongly and prevents plants from extracting them from the soil. This is very counter-agronomic and counter-ecological. Roundup disables a key metabolic pathway in plants known as the shikimic acid pathway by chelating manganese so strongly that a manganese-dependent enzyme is zeroed-out from mediating a particular step in the pathway, thereby shutting the whole pathway down. Interestingly enough, bacteria share this same shikimic acid pathway with plants, and the rise of glyphosate everywhere in the background and in the mainstream food supply correlates strongly with intestinal micro-biome derangement and the resultant intestinal diseases.
( I have heard rumblings at the fringes of agricultural conferences that heavily Round-Upped land may become unsellable and uninsurable and un-mortgageable. Just rumblings so far . . . )
By the way, for those people to whom the ecological benefit of no-till agriculture actually is a matter of actual concern, a No Roundup method is gaining popularity . . . . using the roller-crimper to crush/crimp/smashdown the standing green cover crop at its peak of decayability, and planting through the smashdowned cover crop with specialized ag-tools.
For those who wish to see images of roller-crimpers, here is a bunch of images with their URLs in case anyone wants to go url-diving.
https://images.search.yahoo.com/search/images;_ylt=AwrJ61ciVbpiZvQAb3pXNyoA;_ylu=Y29sbwNiZjEEcG9zAzEEdnRpZANMT0NVSTA0NV8xBHNlYwNzYw–?p=roller+crimper+image&fr=sfp
> Roundup chelates various positive metal ions very strongly and prevents plants from extracting them from the soil. This is very counter-agronomic and counter-ecological.
That’s rather the point. You treat the field with something that prevents plants from growing; and plant a modified crop that has a modified pathway and can grow. The real issue is properly isolating the field.
This also has nothing to do with whether the compound or an adjuvant is carcinogenic — which it may well be. And as it was advertised as perfectly safe for domestic use (rather than industrial agriculture) — I should think that’s the primary concern; rather than an ecological one…
I’ll bet that corporate junk science is very popular in German courts and with corporate junk science scientists who were trained in corporate junk science.
Professor Emeritus of Plant Pathology Don Huber from Purdue University pursued non-profit sound science about glyphosate far enough to make himself very unpopular with the corporate junk science establishment.
But he was too senior and too tenured and too successful of a private agronomy consultant to multi-million dollar operations at the same time for the corporate junk science establishment to be able to do anything about him.
Here are some images of Don Huber in case anyone wants to go url-diving.
https://images.search.yahoo.com/search/images;_ylt=AwrE1xqYVrpi5Q4Afl1XNyoA;_ylu=Y29sbwNiZjEEcG9zAzEEdnRpZANMT0NVSTA0NV8xBHNlYwNzYw–?p=professor+don+huber+image&fr=sfp
Due to being time pressed, I also neglected to link to the derivative suit against Bayer for the Monsanto acquisition. It was entered into by management for the worst possible reason: to escape being bout by Pfizer or equivalent, to bulk up so Bayer would be too big to eat. The suit details how Bayer had a history of making terrible acquisitions, how they made this bad situation worse by being unable to do proper due diligence, missing the significance of the WHO determination that glysophate was a probable carcinogen and not negotiating the price down, again failing to negotiate the price down after being forced to divest a trophy division to satisfy anti-trust concerns. The management is terrible and extremely self serving. The caliber of management is the most important consideration if you are a stock investor, as opposed to a speculator.
More detail here:
https://www.nakedcapitalism.com/2020/08/devastating-lawsuit-targets-bank-of-america-credit-suisse-and-bayer-board-members-and-executives-over-disastrous-monsanto-acquisition.html
Er…you do realize Felix_47 already referenced Huber? It seems we have two people here coming from different positions citing the exact same authority figure.
The point is that Don Huber is an esteemed scientist who is a strong opponent of the use of junk science in courts by whichever side.
And he is also a strong opponent of glyphosate and has repeatedly warned that the health and ecological impacts of glyphosate have been significantly understated.
So the point that somehow Bayer are the victims of bad scientific arguments has very little merit. Bayer bought the biggest lemon in history. Anyone with an hour to spend on google could have told them that they were buying a ticking timebomb with Monsanto. The notion that they are somehow the victims of anti-science hysteria and stupid jurors doesn’t stand up to any interrogation.
Just to clarify, the ‘Hubers’ are different people – Peter Huber wrote on courtroom junk science, Don Huber is the agronomist.
I referrence Huber for his work on glyphosate in agriculture. And his gathering of other scientists’s work on glyphosate in agriculture. ( And I, a mere garden layman, have paid for and attended a couple of 8-day sessions given by Dr. Huber at Acres USA conferences on disease management and prevention in plants through soil nutrition levels control and management.)
I do not care what sort of gain someone else thinks they get by citing Huber in “defense ” of their pro-corporate-junk-science position.
And I do not care what someone thinks of my citing Huber when someone else cites Huber for corporate junk science reasons. I know why I referrenced Huber.
As far as i recall the panel that evaluated the risk (not hazard) og glyphosate found it probably did not cause cancer. It seems like everyone only rememebers the hazard evaluation from iarc and not the risk assesment from UN/WHO JMPR. What have I misunderstood? Sure theres something. https://amp.theguardian.com/environment/2016/may/16/glyphosate-unlikely-to-pose-risk-to-humans-unwho-study-says
They found it did not cause cancer when consumed in food – thats quite a different matter from concluding that it is not carcinogenic when humans are exposed through direct contact or in the environment. WHO seem to have done the classic bait and switch where they narrowed the parameters of the research to get a conclusion that was more palatable.
Bayer can make up their glyphosate losses by selling more chemical weapons to NATO. For the Ukrainian children of course.
Maybe Bayer can sell themselves more aspirins for all the headaches they have and will continue to have.