Litigation Update: Bayer Delays Plan for Handling Future Roundup Cancer Claims

by | Jul 13, 2020

After the federal judge overseeing the multi-district litigation indicated in an order filed July 6 that he was skeptical of the proposed settlement, Bayer, owner of Monsanto, agreed to put the plan on handling future cancer claims on hold while negotiations to address the judge’s concerns are underway.  The $1.25 billion plan, filed last month in U.S. District Court for the Northern District of California, was intended to manage the company’s future liability and was separate from the settlement agreement that was reached for lawsuits already filed; it was intended to apply to all future claims brought “either by Roundup users who have developed cancer but have not yet sued, or by Roundup users who have not yet developed cancer at all” as of June 24, 2020. In the order, Judge Vince Chhabria commented on a number of the Court’s concerns, including the legality or constitutionality of the plan’s intent 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”, the issue of “why….. a potential class member (would) want to replace a jury trial and the right to seek punitive damages with the process contemplated by the settlement agreement”, the appropriateness of binding all future cases to the science panel’s findings, and the fact that it was unlikely that most class members would get the kind of notification that would allow them to consider their options in a meaningful way.  The plan as drafted would delay the filing of cases for four years to allow for a five member “science panel” to conduct research into whether Monsanto’s glysophate-based weed killer, Roundup, causes non-Hodgkins lymphoma (NHL) and if so, at what minimum exposure levels.

As a result of the judge’s order, on July 8 the group of lawyers who had structured the deal with Bayer filed a notice to withdraw their plan.  The group also issued a joint press release with Bayer stating that they intended to revise the plan to address the issues raised by Judge Chhabria in his July 6 order. It remains to be seen whether the withdrawal of the class action settlement plan will impact the proposed settlements of the existing claims.

In response to multiple requests from potential class members to delay ruling on the preliminary approval of the settlement, Judge Chhabria states in his July 6 order that the hearing will take place, as originally scheduled, on July 24. In addition, he notes, “with respect to the filing deadline on July 13, the Court will only consider filings from potential class members titled ‘preliminary opposition’ or ‘preliminary objections.’” The Court will also not be considering amicus briefs at this time.

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