Bayer Loses First Round in Legal Battle over Claim that Roundup Caused Cancer

By Joel Rosenblatt | March 20, 2019

Bayer AG lost the first phase of a trial over claims its Roundup weed killer causes cancer and now moves to a second phase to determine liability and damages in the case of a man who sprayed the herbicide on his property for decades.

The next stage, starting Wednesday, will be a steeper climb for the defense: jurors will hear evidence, including damaging emails, that the company manipulated public opinion to bury health concerns and promote sales of the bestselling herbicide.

After Bayer lost its first U.S. trial over Roundup, Tuesday’s decision probably edges the company one step closer to a settlement, according to analysts. They predict that paying to resolve more than 11,000 related U.S. lawsuits, which Bayer inherited with its acquisition of Monsanto Co., could cost as much as $5 billion.

The verdict will “likely result in a flood of cases filed quickly” against Bayer, and “may expedite the ultimate settlement” of the Roundup claims, Anna Pavlik, senior counsel for special situations at United First Partners LLC in New York, said in an email. Pavlik cautioned that Bayer and plaintiffs’ lawyers probably remain far apart on the price of resolving the lawsuits.

Bayer said moving to the next phase of Edwin Hardeman’s trial against the company has no impact on future cases because each one has its own factual and legal circumstances.

“We are disappointed with the jury’s initial decision, but we continue to believe firmly that the science confirms glyphosate-based herbicides do not cause cancer,” the company said in a statement. “We are confident the evidence in phase two will show that Monsanto’s conduct has been appropriate and the company should not be liable for Mr. Hardeman’s cancer.”

The trial in San Francisco federal court is structured more favorably for Bayer than the first one last summer. In that case, a California state court jury awarded a former school groundskeeper damages eventually reduced by a judge to $78.6 million.

The proceedings were split — at the company’s request and in its favor — to first focus jurors’ attention on the medical question of whether exposure to Roundup was a “significant factor” in causing plaintiff Hardeman’s non-Hodgkin’s lymphoma. Bayer argued that the hepatitis Hardeman suffered for decades is the primary cause of his disease.

With that question decided against Bayer, jurors will now hear about two more weeks of testimony to determine whether the company is liable for Hardeman’s cancer, and if so, what damages he’s owed.

“Now we can focus on the evidence that Monsanto has not taken a responsible, objective approach to the safety of Roundup,” Hardeman’s attorneys, Aimee Wagstaff and Jennifer Moore, said in a statement. “Instead, it is clear from Monsanto’s actions that it does not particularly care whether its product is in fact giving people cancer, focusing instead on manipulating public opinion and undermining anyone who raises genuine and legitimate concerns about the issue.

Evidence is almost certain to resurface that Monsanto ghostwrote scientific literature and influenced regulators to claim that Roundup is safe. The revelations proved pivotal in the previous verdict, which caused Bayer shares to plunge.

The case is In re: Roundup Products Liability Litigation, MDL 2741, U.S. District Court, Northern District of California (San Francisco).

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