In a graphic demonstration of the difference between the U.S. legal system and those of other countries, an appeals court in France has rejected the only pending lawsuit there claiming Bayer’s Roundup herbicide causes non-Hodgkin’s lymphoma, the common cancer that tens of thousands of Americans blame on the product.
Bayer announced this week that a Court of Appeals in Bourges upheld the dismissal of the so-called Jendouz case because the plaintiff failed to prove he purchased or used Roundup and existing scientific evidence fails to prove a causal link between the active ingredient glyphosate and cancer.
Juries in the U.S. have come to the opposite conclusion, including a federal jury that awarded Edwin Hardeman $80.3 million last year in a bellwether trial intended to establish liability and damages expectations for thousands of similar cases gathered in multidistrict litigation proceedings under U.S. District Judge Vince Chhabria in California. Bayer is appealing the verdict, since reduced to $25.3 million, before the U.S. Court of Appeals for the Ninth Circuit.
Judge Chhabria allowed the MDL cases to proceed even though he acknowledged the plaintiffs’ scientific experts “sometimes crossed into the realm of junk science.” He cited Ninth Circuit law, which he said allows for looser standards for expert testimony under the U.S. Supreme Court’s Daubert ruling than the other federal districts.
Facing thousands of similar lawsuits and a hostile ruling by the judge in charge of most of them, Bayer admitted defeat and negotiated a $10 billion settlement with leading plaintiff lawyers, an agreement it is still trying to complete. It agreed to pay the money to plaintiffs with non-Hodgkin’s lymphoma even though the Environmental Protection Agency prohibits it from placing a cancer warning on the label and a federal judge in June ruled that California can’t require similar warnings under its own labeling laws.
The differing standards of scientific evidence were discussed this week at a Federalist Society panel that included Bryan Fitzpatrick, a professor at Vanderbilt Law School; Elizabeth Burch of the University of Georgia Law School; and Christopher Seeger of Seeger Weiss, who has taken a leading role in major MDLs including opioid litigation and the NFL concussion settlement.
Fitzpatrick criticized the MDL system for placing too much power in the hands of a single judge to determine how hundreds or thousands of cases will proceed, including what evidentiary standards will apply. Burch’s research has shown that even though the MDL process was intended to resolve pretrial questions after which cases would return to their original courts, nearly every MDL ends in a mass settlement.
Defendants and plaintiff lawyers alike find it more convenient and less risky to negotiate an agreement ending all litigation at once than taking cases to trial, with uncertain outcomes.
Fitzpatrick said the concentration of cases in a single court cripples one of the key functions of litigation, which is to arrive at the correct answers to questions of fault and scientific causation.
“Our MDL system is a recipe for very inaccurate decision-making,” he said in the panel discussion Tuesday. “It takes decisions that would be handled by many different judges and gives all the power to one person.”
In the Roundup litigation, Fitzpatrick said, even the judge said "You know what, I think this evidence is pretty weak. And if I were in most other districts, I would exclude.”
“And because of that, Monsanto is already settling for $10 billion,” he said. “If this litigation had been somewhere else, it might have been zero.”
Bayer is still wrestling with the complexities of settling thousands of lawsuits, not all of which are included in the federal MDL. Supermediator Kenneth Feinberg reportedly told the court on Monday that the two sides were making “substantial progress,” on resolving almost 2,000 holdout cases. The company has bumped its settlement offer to $11 billion, Reuters reported.
The company has fared better in Europe, although last month it lost a case in France in which the plaintiff claimed he suffered non-cancer injuries after being sprayed with another glyphosate weedkiller.