When it comes to trying to get the U.S. Supreme Court to rule the active chemical glyphosate in Bayer’s weedkiller, Roundup, is safe for the environment and doesn't cause cancer in humans, Bayer lawyers are like the Energizer Bunny – they keep going and going and going and going....

Bayer had no less than three separate cases it hoped the supremes would one day grant certiorari: Monsanto Company v. Hardeman, John D. Carson v. Monsanto, and Monsanto Company v. Alberta Pilliod, et al.

That number is now down to one. Late last month, the high court tossed both Monsanto v. Hardeman and Alva Pilloid and Alberta Pilliod v. Monsanto without comment into the nearest federal shredder, refusing to take up the cases (see here and here).

A federal district court awarded Hardeman $25 million after a California jury concluded Bayer violated state law by not warning him that Roundup could cause cancer. The U.S. Court of Appeals for the Ninth Circuit dismissed Bayer's argument that the Federal Insecticide, Fungicide, and Rodenticide Act's labeling provisions preempted California state law because the Environmental Protection Agency had determined glyphosate did not not pose “any unreasonable risk to man or the environment.”

A California state jury awarded the Pilliod's $87 million under nearly identical legal issues as Monsanto v. Hardeman. As it did with Hardeman, Bayer failed to convince the appellate court that federal law preempted failure-to-warn liability claims.

Which leaves Bayer plum out of jury verdicts to make the case that failure-to-warn products liability claims are preempted by FIFRA and federal law.

But hey, Bayer remains optimistic that John D. Carson v. Monsanto down the road could get a Supreme Court hearing. That case has been controversial and ugly and there are public charges that Bayer is supporting Carson, who lost at the district level, to get its FIFRA preemption argument to the Supreme Court.

What?

In December 2020, Southern District of Georgia, Savannah Division, Judge R. Stan Baker ruled under FIFRA that Monsanto had no duty to warn of a cancer risk because EPA had approved the Roundup label. Baker also ruled Carson’s claims of design defects and negligence were preemptive “to the extent those claims are based on the labeling or packaging of Roundup.”

After the district court ruling, Bayer (remember the company WON) reached a confidential settlement with Carson. Well, color plaintiff attorneys from the Hardeman and Pilliod Roundup cases skeptical. They say Bayer is paying Carson to appeal in the hopes that the U.S. Court of Appeals for the Eleventh Circuit rules in his favor.

The letter signed by attorneys Brent Wisner, David Wool, and Jennifer Moore reads in part:

“The settlement agreement is a pay-to-appeal scheme. Monsanto agreed to pay Carson only if he appealed the District Court’s decision on preemption – a decision that Monsanto won. The agreement entitles Carson to another payment from Monsanto should Carson succeed on the merits. However, should Carson decide the appeal is not in his best interest and chooses to dismiss it, Carson must pay Monsanto liquidated damages of approximately $100,000.00. On top of that, the agreement limits the claims being appealed to only failure to warn, effectively allowing Monsanto to dictate Carson’s litigation strategy. This settlement is also particularly troublesome because Carson’s counsel openly admits that, in the absence of the agreement, even if Carson were to prevail on the appeal, he would be unable to prosecute his case after remand to the District Court due to a lack of scientific evidence to support a causal association between his cancer and Roundup exposure.”

Bayer issued a statement defending the settlement:

“The company has been completely transparent about its desire to appeal Roundup failure-to-warn cases on federal preemption grounds, and this settlement, which the plaintiff voluntarily agreed to, is an appropriate path for such an appeal.”

Boiled down, Bayer is accused of paying Carson to appeal the case. And if that's not enough, at the district court Carson claimed Roundup caused his malignant fibrous histiocytoma. All the previous verdicts and settlements have dealt with non-Hodgkin lymphoma. There has never been a study of whether glyphosate can cause malignant fibrous histiocytoma, and yet Bayer is hoping the case creates appellate precedent at the Eleventh Circuit. 

Who knows what the Eleventh Circuit will do with this hot mess. Carson’s lawyer, Ashleigh Madison, of Southeast Law in Savannah, Georgia, denies the allegations in the letter and says the issue will be addressed in court. 

Here is the thing. No one knows with 100 percent guaranteed take it to the bank certainty whether glyphosate causes cancer. Roundup's initial registration back in 1974 was a botched train wreck at EPA. Monsanto has worked for decades to distort and suppress research suggesting health hazards with glyphosate. EPA played along. Those that argue glyphosate can cause cancer point to the suspicious EPA registration process as well as an International Agency for Research on Cancer study, which concluded glyphosate is “probably carcinogenic to humans.” But the IARC study also has been questioned for its veracity.

What's the unadulterated truth? How in blue blazes can the Supreme Court make a just decision out of this tangled pile of steaming spaghetti?

A couple of points may offer hope for clarity on glyphosate.

Roundup is up for a registration review at EPA and the process must be finalized by Oct. 1 of this year. In 2020, EPA conducted an interim registration review approving the continued use of glyphosate. But last month, the Ninth Circuit voided the review, saying EPA unlawfully decided there is no cancer risk associated with glyphosate:

“We first consider (plaintiff) Rural Coalition’s challenge to EPA’s conclusion that glyphosate poses 'no risks to human health.’ That conclusion rests in important part on EPA’s determination, explained in its Cancer Paper, ‘that glyphosate is not likely to be carcinogenic to humans.’ Rural Coalition contests the Cancer Paper’s reasoning, primarily arguing that EPA contravened the Cancer Guidelines it purported to follow. We agree.”

The Ninth Circuit also found EPA failed to adequately consider whether glyphosate poses a risk under the Endangered Species Act. For its part, EPA has acknowledged its shoddy work.

EPA is now back at the drawing board for a do over. And the clock is ticking. Still, does anyone really believe that the EPA – given all the shenanigans regarding glyphosate over decades – is going to shoot absolutely straight now? Yeah, me neither. Reform is desperately needed at the EPA and other governmental agencies (I'm pointing at you, Food and Drug Administration). At stake is nothing less than public safety and environmental sustainability.

About Dave Dickey

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 dave.dickey@investigatemidwest.org.