Judge Rebuffs Bayer’s Settlement Bid Over Proposed Scheme to Sidestep Jury

By Lynne Higby

Bayer’s bid to extinguish its Roundup-related legal trouble came to a temporary halt last week after the case’s presiding judge questioned the lawfulness of a provision in the proposed $10 billion settlement, as reported by Bloomberg.

The provision would’ve created a five-person scientific advisory panel to decide whether glyphosate, the chief chemical in Roundup, caused cancer and, if so, what level of exposure was dangerous. A decision by the panel affirming the safety of glyphosate stood to curtail millions in potential claims against the conglomerate.

Questioning the fairness of the proposal, federal District Court Judge Vince Chhabria of the Northern District of California said the provision might unlawfully strip juries and judges of the decision of whether or not Roundup caused cancer. He noted that since the science surrounding glyphosate is evolving, it would be unjust to bind all claimants to the conclusions of a single panel.

“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?” questioned Chhabria, referencing previous multimillion-dollar verdicts against Roundup-maker Monsanto, a Bayer subsidiary. 

In light of the judge’s concerns, attorneys representing Roundup plaintiffs backed away from the proposed deal.

The total settlement offer included up to $9.6 billion to cover 95,000 of the current 125,000 cancer-related cases against Monsanto, plus $1.25 billion for future claims from Roundup victims who develop non-Hodgkin’s lymphoma (NHL). The deal is among one of the largest settlement offers in U.S. civil litigation, the New York Times reported in June.

Defending the proposal, Bayer’s chief executive Werner Baumann said the deal would’ve set aside enough money for existing claimants outside of the proposed agreement and created a structure to address potential claimants, bringing closure to the ongoing litigation. 

Houston-based lawyer Fletch Trammell, who said he represented 5,000 claimants who declined to join the class-action litigation, compared the scrapped settlement to putting out “part of a house fire.” 

“This is nothing like the closure [Bayer is] trying to imply,” he noted. 

The proposed settlement required no admission of fault on Monsanto’s behalf, and called for class members to release “any claims against Monsanto for punitive damages and for medical monitoring related to roundup exposure and NHL.”

In a statement issued in response to Judge Chhabria’s filing, Bayer spokesperson Chris Loder said the plan would be reworked to address questions raised by the judge, according to Bloomberg.

“Bayer remains strongly committed to a resolution that simultaneously addresses both the current litigation on reasonable terms and a viable solution to manage and resolve potential future litigation,” Loder said.

At least 30,000 claims alleging that Roundup caused NHL are pending. Some plaintiffs’ attorneys are promising to file yet another wave of new suits that have the potential to add tens of thousands more claims.