Bayer Misses Judge’s Deadline To Settle Roundup Lawsuits, Expects Cost To Rise and Trials May Resume

Although Bayer announced earlier this year that Roundup settlements had been reached to resolve most of the U.S. litigation over the controversial weedkiller, the manufacturer has missed a key deadline to finalize deals and now indicates it expects the cost associated with future lawsuits and litigation to rise.

Bayer and its Monsanto subsidiary currently face more than 125,000 Roundup lawsuits that allege the manufacturers failed to warn consumers about the cancer risks associated with exposure to the weed killer, which plaintiffs claim caused the development of various types of non-Hodgkins lymphoma (NHL).

Following massive losses in the first cases to go before juries last year, where the company was hit with billions in damage awards during only three trials, Bayer faced substantial pressure to settle Roundup claims and avoid additional trials that were set to begin earlier this year.

As the parties reached tentative deals, a number of cases set to go before juries in January and February 2020 were postponed and the U.S. District Judge presiding over the litigation agreed to delay further proceedings on dozens of individual claims that were being prepared for trial in the federal court system.

In June 2020, Bayer announced that settlement agreements had been reached to resolve the vast majority of all Roundup claims, indicating that the company would pay $8.8 to $9.6 billion to resolve current claims, with a $1.25 billion fund established to address future claims.

After attempts to bind future plaintiffs to the terms of a Roundup class action settlement unraveled and a number of law firms reported that Bayer was refusing to sign final settlement documents, the federal judge presiding over the Roundup litigation agreed to stay the proceedings only until November 2, indicating that active deadlines to prepare bellwether cases for trial may be reinstated if progress was not reached to settle the Roundup claims pending in a federal multidistrict litigation (MDL).

This week, attorneys for Bayer and it’s Monsanto subsidiary filed a joint case management statement and litigation plan (PDF) with U.S. District Judge Vince Chhabria, indicating that it has missed the deadline established by the Court, with about half of all claims pending in the federal court system still not subject to a settlement agreement. However, Bayer indicates it is still hoping to settle Roundup lawsuits without the need for additional trials.

“The parties remain actively engaged in ongoing settlement discussions and/or Monsanto is making contact with all of the counsel who represent these 1861 plaintiffs (not covered by a settlement agreement),” according to the statement filed with the court. “Additionally, Special Master, Ken Feinberg is serving as mediator between the parties with more than 9 formal mediations underway. Moreover, Special Master Feinberg has recently launched an effort to reach out to the remaining plaintiffs that are not currently in active discussions with Monsanto, particularly those with four or less cases in the MDL and pro se plaintiffs, to request information about those cases in order to facilitate resolution of these remaining plaintiffs’ claims.”

Overall, the Roundup settlement agreement under discussion covers about 88,500 of the 125,000 claims filed in state and federal courts, or which have not yet been filed.

Roundup Costs For Future Claims Rising

As part of its third quarter earnings results released on Tuesday, Bayer also issued a press release that estimates it will need to pay an additional $750 million to address claims brought in the future by former users who may be diagnosed with non-Hodgkins lymphoma. Combined with the original estimate of $1.25 billion, that would bring the total estimate of future liability to about $2 billion.

Because Roundup has been on the market for decades and it may take years for non-Hodgkin’s lymphoma to develop and be diagnosed, questions have been raised about whether Bayer will be able to end the litigation or limit its future exposure for its Monsanto subsidiary failing to warn about the link between Roundup and non-Hodgkins lymphoma.