Bayer AG’s plan for handling future Roundup cancer claims hit a snag when the judge asked to oversee the yet-to-be filed lawsuits over the popular weedkiller expressed skepticism about the proposal’s legal validity.
U.S. District Judge Vince Chhabria wrote in a court filing Monday that a $1.25 billion proposal — which calls for establishing a scientific panel to determine whether Roundup’s active ingredient causes cancer while still potentially allowing users of the herbicide to press claims — is problematic.
Bayer shares fell as much as 4% early Tuesday in Frankfurt.
The judge’s misgivings center on a portion of the proposal that would create a class of future claims as part of a nearly $11 billion settlement of Bayer’s Roundup litigation announced last month. Some U.S. plaintiffs’ lawyers are vowing to file another wave of new claims that could add tens of thousands to that total.
Any change to the class-action portion of the proposal wouldn’t necessarily affect the rest of the settlement, in which the company agreed to pay as much as $9.6 billion to resolve about 125,000 existing lawsuits. Some 30,000 claims, blaming Roundup for causing non-Hodgkin’s lymphoma, are not yet subject to deals between plaintiffs and Bayer.
Chhabria set a July 24 hearing to consider the proposal, which he said he’s “tentatively inclined” to reject.
Bayer said late Monday the class proposal is still on the table. The company says Roundup is safe and it has appealed verdicts against it.
“We appreciate the judge’s order raising his preliminary concerns with the proposed class settlement, which we take seriously and will address” at the hearing, Chris Loder, a U.S.-based spokesman for the Leverkusen, Germany-based drugmaker, said in an interview. Roundup is made by Bayer’s Monsanto unit.
“Thankfully, Judge Chhabria has seen the ruthless plan as an outrageous attempt to deprive every future victim of Monsanto’s killer Roundup of their right to fair and full compensation and to a jury trial,” Tom Kline and Jason Itkin, plaintiffs attorneys for users of the weedkiller who haven’t settled their suits, said in an emailed statement Tuesday.
The futures class was the brainchild of Bayers’ lawyers and some plaintiffs’ attorneys , including San Francisco-based Elizabeth Cabraser and Samuel Issacharoff, a New York University law professor, according to court filings. It took a year of “unrelenting” settlement negotiations to come up with the plan, Cabraser said in a court filing. It’s designed to provide funds to Roundup cancer patients in financial need and finance a review of the science underlying the cancer claims.
William Dodero, Bayer’s global head of litigation, said at a press conference last month he couldn’t predict how many new Roundup cases will emerge and need to be included in the futures class. He said the class will feature an independent science panel that will decide whether glyphosate –- Roundup’s active ingredient — is a carcinogen rather than leave the decision to individual judges and juries.
Three California juries orderered Bayer to pay billions of dollars in combined damages based on findings that glyphosate caused the plaintiffs’ cancers. Those awards ultimately were reduced to about $190 million.
The science panel is designed to have independent experts make the decision on the chemical’s toxicity, Dodero said.
“They will be selected by the parties by mutual agreement, and if there is not mutual agreement each party will select two; the four will select the remaining fifth,” he said last month. “They will be objective and a blue-ribbon panel to fully assess the evidence.”
If the panel finds glyphosate is not a carcinogen, then class members would be barred from recovering from their cases, according to court filings. Conversely, if the panel says the chemical can cause cancer, future Roundup users could proceed with their suits.
That’s one of the sticking points with the class-action mechanism, Chhabria said.
“It’s questionable whether it would be constitutional (or otherwise lawful) to delegate the function of deciding the general causation question (that is, whether and at what dose Roundup is capable of causing cancer) from judges and juries to a panel of scientists,” he said.
He also questioned whether there is an incentive to join the class for future Roundup claimants, who would have five months after the class is approved to opt out of it.
“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?” the judge asked.
He also said the proposal has procedural drawbacks in making sure all potential future Roundup claimants have proper notice that they must decide within five months whether to become part of the class.
“Given the diffuse, contingent, and indeterminate nature of the proposed class, it seems unlikely that most class members would have an opportunity to consider in a meaningful way (if at all) whether it is in their best interest to join the class,” he said.
The Roundup litigation isn’t the first to generate a settlement that addresses future claims.
But unlike the National Football League’s 2014 concussion settlement — slated to provide at least $765 million to ex-players suffering from brain injuries now and in the future –- the Roundup futures class doesn’t apply to a “narrow and readily identifiable” set of claimants, Chhabria said. The NFL’s futures class won approval from an appeals court in 2016.
“A class that includes all Roundup users who will get cancer in the future is very different,” the judge said. “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.”
The consolidated case is In re: Roundup Products Liability Litigation, MDL 2741, U.S. District Court, Northern District of California (San Francisco).
About the photo: Bottles of Monsanto Co. Roundup brand pesticide are displayed for sale at a Home Depot Inc. store in Louisville, Kentucky, U.S., on Monday, Feb. 25, 2019. Photographer: Luke Sharrett/Bloomberg
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