Last month Bayer AG offered up its latest Goldilocks offer to settle potential future lawsuits from plaintiffs claiming Roundup herbicide gave them cancer. Bayer is hoping the deal will be judged “just right” by Northern District of California judge Vince Chhabria who after poking through Bayer's first bowl of porridge decided it too hot if not downright unlikely to pass constitutional muster.
Chhabria informed Bayer that its first offer likely failed on several fronts – most notably whether it would be lawful for a scientific panel to make a binding for all time decision on whether glyphosate causes cancer. Bayer was hoping to limit its exposure to future lawsuits but Chhabria wasn't having any of it:
“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?”
Rather than betting on a dead horse Bayer withdrew its proposal and huddled trying to craft a Goldilocks solution it could live with. Too hot and Chhabria would toss Bayer's court proposal into the nearest shredder; too cold and Bayer would be on the hook for more money than the German pharmaceutical giant would be willing to stomach.
And if Bayer can't get its settlement plan just right it certainly will be bleeding cash. Bayer has already lost three jury cases:
- Former groundskeeper Dewayne “Lee” Johnson initially won $289 million from a San Francisco jury who believed Roundup was a “substantial factor” for a terminal case of non-Hodgkin's lymphoma. A judge later reduced damages to $78.5 million and an appellate court further reduced the award to $21.5 million.
- Sonoma County, California homeowner Edwin Hardeman was awarded $25.2 million dollars.
- Livermore, California couple Alva and Alberta Pilliod were awarded $86.2 million dollars. The original settlement, in that case, was a staggering $2.055 billion.
Bayer continues to appeal all three cases but that's $132.9 million and it's unlikely Bayer will get all the cases overturned short of the U.S. Supreme Court.
So now we have a second Bayer Goldilocks settlement proposal.
The $2 billion deal establishes a four-year fund that would pay future “qualified claimants” between $10 thousand and $200 thousand” and potentially more in “exceptional circumstances.” The fund could be increased or extended in time if Bayer and the plaintiffs agree. I wonder if Chhabria will rule the four-year time frame far too short given his written stance that future science could render new views on glyphosate safety.
The deal still has a scientific panel selected by Bayer and plaintiffs' lawyers to conduct an independent study to determine if Roundup causes cancer. In the new deal, however, the findings would not be binding on future lawsuits, but rather advisory. Presumably, if the panel rules Roundup doesn't cause cancer that study would be attached to every future lawsuit against Bayer.
Bayer says it would also seek Environmental Protection Agency approval to include website links on Roundup spraying labels to scientific studies regarding glyphosate safety including views the herbicide may cause cancer. Bayer says it will not directly state on glyphosate spraying labels that Roundup is directly linked to cancer, presumably to prevent sales from tanking.
So the new deal is somewhat less restrictive that Bayer's firms settlement proposal, and roughly $800 million larger.
Chhabria’s approval will be required for the new settlement to take effect. Here's betting Bayer's settlement proposal will need further tweaking.
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 Investigate Midwest covers agriculture and related issues including politics, government, environment and labor. His opinions are his own and do not reflect Investigate Midwest. Email him at firstname.lastname@example.org.