When it comes to fighting court claims that its top-selling weedkiller Roundup causes cancer, Bayer AG is looking more and more like Rocky Balboa every day.
Rocky took a beating at the hands of Apollo Creed before scoring a miraculous last second KO to gain the heavyweight title.
Bayer was pounded by the trial courts in the early rounds:
In August 2018, Bayer's worst nightmare came true when a jury awarded former school groundskeeper Dewayne Johnson, who claimed long-term exposure to Roundup, caused his non-Hodgkin's lymphoma, a mind blowing $289 million. Ultimately, Johnson received $20.5 million after the trial judge first cut the award to 78.5 million and an appellate court cut it a second time.
In the spring of 2019, Edwin Hardeman won an $80 million trial jury verdict. The trial judge reduced the judgment to $25 million. In May 2021, the Ninth Circuit Court of Appeals in San Francisco denied a hearing. But that case may be heard by the U.S. Supreme Court.
If Johnson's and Hardeman's awards didn't have Bayer's (and the public's) full and undivided attention it got it in the lawsuit from Alva and Alberta Pilliod. In May 2019, a trial court awarded the couple $2 billion (that's not a typo – 2 BILLION) who claimed they developed non-Hodgkin's lymphoma after using Roundup for decades.
“The court has considered all the above factors and gives the most weight to the evidence that Monsanto made an ongoing effort to impede, discourage, or distort scientific inquiry and the resulting science about glyphosate and thereby showed a conscious disregard for public health.”
Naturally, Bayer appealed, but it didn’t go as they hoped. California First Appellate District Justice J. Anthony Kline seriously considered throwing the Bayer appeal in the nearest garbage can due to what he called a “distortion of facts.” Ultimately, the appellate court upheld the trial ruling:
“Monsanto’s conduct evidenced reckless disregard of the health and safety of the multitude of unsuspecting consumers it kept in the dark. This was not an isolated incident; Monsanto’s conduct involved repeated actions over a period of many years motivated by the desire for sales and profit.”
The California state Supreme Court rejected Bayer request for appeal, making the Pilliod's $87 million dollar judgment definitive unless the U.S. Supreme Court somehow intervenes.
But things are definitely looking up for Rocky Balboa (Bayer). After going 0-3, Bayer is now fighting back and winning cases:
Bayer got its first trial win last October when a California jury found Bayer and Roundup were not liable for a child's non-Hodgkin’s Lymphoma. The child's mother, Destiny Clark, claimed her son Ezra was “directly exposed” many times to Roundup as she applied the weedkiller around the property where they lived. By a 9-3 verdict, the jury found the arguments non-persuasive.
This last December Bayer chalked up win number two. Donnetta Stephens claimed exposure to Roundup between 1985 and 2017 caused her to have non-Hodgkin’s lymphoma. Stephens sued saying Bayer/Monsanto failed to warn her that glyphosate could cause cancer. But, during testimony, Stephens had difficulty in remembering details. The case also was plagued by COVID-19. Judge Gilbert Ochora began the trial in the courtroom, but had to eventually move it to Zoom. Stephen's attorney, Fletch Trammell, said Zoom hurt the case. In winning, Bayer issued a statement noting “The jury’s verdict in favor of the company brings this trial to a successful conclusion and is consistent with the evidence in this case that Roundup is not the cause of Ms. Stephens’ cancer.”
Those Bayer wins may give other potential glyphosate plaintiffs pause before filling future lawsuits and perhaps provide increased motivation for settling out of court.
So....yes Bayer is making something of a comeback. But Bayer's biggest hope for an end to glyphosate litigation is the huge potential KO haymaker that the U.S. Supreme Court could deliver if it decides to wade in on glyphosate.
Bayer petitioned the Supreme Court last August for a Writ of Certiorari. Bayer made two claims. First, a state-law failure to warn claims are preempted by the Federal Insecticide, Fungicide, and Rodenticide Act. Second, expert testimony from plaintiffs was not in accordance with federal standards:
“The Ninth Circuit’s errors mean that a company can be severely punished for marketing a product without a cancer warning when the near-universal scientific and regulatory consensus is that the product does not cause cancer, and the responsible federal agency has forbidden such a warning.”
Rather than outright granting or denying cert, the Supreme Court this past December kicked the can to the Feds asking whether the high court should hear the case. It's expected that U.S. Solicitor General Elizabeth Prelogar will file a brief with the Supreme Court sharing the Biden Administration's views. Which, for all practical purposes, just turned what was already one of the messiest litigations in my memory into a political football.
Bayer is in a stronger position today than it was last year. If Prelogar and the Biden Administration recommends the case be dropped, it could become a hot-button voting issue for Congressional Democrats in swing districts. The president is already at significant risk of losing Democratic majorities in both the House and the Senate this November. The political calculation may result in requesting the Supreme Court to hear the case. In that instance, Bayer – presuming the case won't be decided on the shadow docket – gets a huge opportunity to argue before the court on the safety of glyphosate. And, essentially, put an end to more than 13,000 lawsuits. Yeah, it's that big. Buckle down.
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.