In a hopeful sign for Bayer as it fights tens of thousands of lawsuits over Roundup weedkiller, the U.S. Supreme Court has asked for the government’s opinion on a $25 million jury verdict the chemical company says should have been preempted by federal law.
Coming days after a California jury rejected a woman’s Roundup cancer claims -- Bayer’s second straight trial victory after several losses -- the Supreme Court’s expression of interest could signal an opportunity for Bayer to end the litigation against its Monsanto unit for good. In the wake of the Supreme Court’s order, the company said it “will not entertain any further settlement discussions with plaintiff lawyers” representing thousands of Roundup claimants.
In its order Monday, the Supreme Court invited the U.S. Solicitor General to provide a brief on questions raised by the Hardeman case, in which plaintiff Edwin Hardeman blamed his diagnosis of non-Hodgkin’s lymphoma on Roundup exposure. A federal jury awarded Hardeman $80 million, including $75 million in punitive damages, which the court reduced to $25 million.
Facing nearly 100,000 similar lawsuits and with lawyers still advertising heavily for new Roundup clients, Bayer has offered to pay $11.6 billion to settle most of the cases against it while maintaining an aggressive litigation strategy against plaintiff lawyers who are holding out for more.
In a statement, the company said it is encouraged by the Supreme Court’s interest in the Hardeman case and its argument, supported by numerous industry allies, that it “can’t be held liable for failing to warn consumers that Roundup causes cancer when the federal government has made it illegal to place a cancer warning on the product.”
The Environmental Protection Agency issued its ruling during the Trump Administration. The Biden Administration might have a different opinion on the preemption question, however, given the Democratic Party’s close ties to trial lawyers that supply much of its campaign funding.
Hardeman was the first bellwether trial in multidistrict litigation overseen by U.S. District Judge Vince Chhabria, who allowed in evidence that Roundup’s active ingredient glyphosate can cause cancer even though the U.S. Environmental Protection Agency and similar agencies around the world consider it to be safe. Judge Chhabria allowed lawyers to hear from Chris Portier, a plaintiff expert who was non-voting chairman of the International Agency for Research on Cancer when it concluded glyphosate was a probable carcinogen. Armed with the IARC finding, other plaintiff experts then can offer their opinion that glyphosate caused a specific plaintiff’s cancer.
Monsanto argued it couldn’t comply with federal pesticide labeling regulations, which prohibit it from “misbranding” a product with false statements, and what is effectively California law requiring it to warn consumers the product does cause cancer. The EPA has prohibited Monsanto from placing a cancer warning on its label.
The Ninth Circuit rejected Monsanto’s arguments, however, ruling in May that the EPA’s prohibition doesn’t carry the effect of law while a federal pesticide misbranding statute is broad enough to allow the company to warn against cancer in compliance with California law.
The high court asked the Solicitor General for the government’s opinion on two other cases, one involving plaintiff attempts to overturn a decision finding Westminster Bank not liable for funding terrorism in the Middle East and another involving an interpretation of federal pension law.
The court refused to hear Johnson & Johnson’s appeal of another controversial toxic-tort case, Mississippi’s lawsuit against the company for failing to warn consumers about the cancer risk of talcum powder.