Sometimes you have got to read between the lines and shine up your crystal ball to make an educated guess where particular litigation is headed. But that's probably not the case in the pretrial order of Ramirez, et al. v. Monsanto.
To great fanfare in June, Bayer AG announced it had reached a settlement worth more than $10 billion in a class action lawsuit over the company's herbicide, Roundup, which plaintiffs alleged caused non-Hodgkin lymphoma. A portion of that settlement – $1.25 billion to be exact – is to fund payouts for potential future claims against Roundup.
The settlement would also establish a five-member scientific panel to determine whether or not Roundup and its active ingredient glyphosate truly causes cancer. The settlement says the panel's conclusion will be both final and binding. Final meaning the ruling cannot be changed even if future science begs to differ; binding meaning defendant holdouts not taking their settlement checks likely get nothing if the panel rules Roundup is benign.
But that part of the settlement is dependent on approval of the courts. A pre-trial hearing on the merits is being held later this week in the district court for the Northern District of California and district judge Vince Chhabria – who's handling the class action lawsuit – has all but slam-dunked Bayer back to the drawing board regarding whether the settlement on the table will fly:
“...even before receiving opposition briefs, the Court is skeptical of the propriety and fairness of the proposed settlement, and is tentatively inclined to deny the motion.”
Bayer: ya got a problem. Chhabria argues the settlement could fail his scrutiny on numerous fronts.
Chhabria argues that even if if Bayer and the plaintiffs are in total lockstep, one-hundred percent, take it to the bank agreement on the terms of the current settlement, it is unlikely to pass constitutional muster – specifically whether it is lawful to allow a scientific panel rather than the courts to determine if Roundup causes cancer.
Chhabria goes on to note judges are allowing jury trials and juries are finding against Bayer. Chhabria wonders:
“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?”
But perhaps even more problematic is the requirement that the scientific panel's determination of whether or not Roundup causes cancer is final. Chhabria noted that science is always evolving and what's true today may not be true tomorrow:
“Imagine the panel decides in 2023 that Roundup is not capable of causing cancer. Then imagine that a new, reliable study is published in 2028 which strongly undermines the panel’s conclusion. If a Roundup user is diagnosed with NHL in 2030, is it appropriate to tell them that they’re bound by the 2023 decision of the panel because they did not opt out of a settlement in 2020?”
Chhabria also makes the argument under the settlement's terms that most people would not have an opportunity to consider in a meaningful way (or at all) if it might be in their best interest to joint the class-action lawsuit:
“For example, the idea that a migrant farmworker or someone who is employed part time by a small gardening business would receive proper notification (much less the opportunity to consider their options in a meaningful way) is dubious.”
Ever since Chhabria set the July 24 hearing date on whether to grant preliminary approval on the settlement, plaintiffs have been requesting the judge push the argument back, saying they need more time to understand the settlement's complexities. But Chhabria has made clear plaintiffs are in a strong position, going so far to suggest that unless something drastically changes in filings leading up to the hearing, Bayer will need to start over:
“Given the Court’s current skepticism, it could be contrary to everyone’s interest to delay the hearing on preliminary approval. If the motion for preliminary approval is denied, the parties will presumably move to Plan B for devising a system to address future claims. (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.) And if the parties are going to need to move to Plan B, they would presumably prefer to do that sooner rather than later.”
The writing is on the wall. Chhabria is on record officially as a skeptic of the settlement. It will be back to the drawing board for Bayer.
About Dave Dickey
Dickey spent nearly 30 years at University of Illinois at Urbana-Champaign’s NPR member station WILL-AM 580 where he won a dozen Associated Press awards for his reporting. For 13 years, he directed Illinois Public Media’s agriculture programming. His weekly column for the Midwest Center covers agriculture and related issues including politics, government, environment and labor. His opinions are his own and do not reflect the Midwest Center for Investigative Reporting. Email him at firstname.lastname@example.org.