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Internal documents uncovered as part of ongoing Roundup litigation suggest the U.S. Environmental Protection Agency (EPA) scientists have been concerned about the potential cancer risks for years, with scientists concluding there was evidence the active ingredient glyphosate may cause non-Hodgkin’s lymphoma as early as 2016.
According to a report published last week in Progressive Farmer, the internal documents were revealed as part of a lawsuit filed by a number of groups against the EPA over its 2020 decision to give glyphosate products an interim re-registration approval, which is currently pending on appeal before the U.S. Court of Appeals for the Ninth Circuit and seeks to overturn the EPA decision.
Bayer and its Monsanto unit have faced more than 120,000 lawsuits brought on behalf of individuals nationwide diagnosed with non-Hodgkin’s lymphoma, each raising similar allegations that information about the Roundup cancer risk has been withheld from consumers for years. Although the companies have denied that glyphosate causes cancer, and pointed to the EPA decision to re-authorize the weed killer in their defense, these internal documents raise serious questions about the process used by the agency.
The document came up in a separate lawsuit filed against over the EPA approval, and indicates that in 2016, EPA scientists determined there was “suggestive evidence” glyphosate was linked to an increased risk of cancer, specifically non-Hodgkin’s lymphoma. However, the evaluation of epidemiological studies was not included in the EPA’s 2020 assessment, according to plaintiffs, consisting of consumer protection and environmental groups.
The EPA has argued the document was deliberative in nature, and thus not included, according to a brief the agency filed earlier this month. The 2020 approval indicated glyphosate was safe and claimed the EPA found no link between glyphosate and non-Hodgkin’s lymphoma.
Plaintiffs are trying to convince the Ninth Circuit to make the document part of the court record.
Roundup Settlement Failures Drag Down Bayer’s Stock Value
The documents are coming to light Bayer continues to face growing pressure to settle the Roundup lawsuits brought by consumers. After a multi-billion settlement program failed to end the litigation, the company’s stock price has been brought down, according to a new analysis by Seeking Alpha.
Following a series of massive losses in early cases that went to trial, Bayer agreed to pay billions in Roundup settlements. However, the settlement agreement has struggled to reach court approval, and the company still faces thousands of unresolved lawsuits while new complaints continue be filed as users are diagnosed with non-Hodgkins lymphoma caused by prior exposure to the weed killer.
On August 26, Seeking Alpha reported on the company’s second quarter 2021 financial results (PDF), reporting a loss of $2.38 per share, and free cash flow decreased by $1.65 billion. The report puts the blame squarely on the company’s legal troubles; specifically, Roundup litigation, which the analysis says hangs like a “sword of Damocles over Bayer.”
Last month, Bayer announced it is setting aside an additional $4.5 billion in reserves to cover the costs of the litigation and potentially add to the amounts being discussed in ongoing settlement talks.
This was in addition to a massive proposed Roundup settlement, which would involve payments of more than $11.6 billion to resolve previously filed claims against Monsanto. However, in addition to settling cases already filed by former users diagnosed with non-Hodgkin’s lymphoma, the company proposed a class action settlement that set aside about $2 billion to resolve future claims that may arise over the next four years.
The proposed settlement of future cases faced sharp criticism at the time, as former users of Roundup who have not yet been diagnosed with cancer, would not have a fair opportunity to opt out of the program. Under terms of that previously proposed deal, those individuals would have lost important rights, including a requirement they wait four years to pursue any future lawsuits over the deadly cancer, and give up the ability to pursue punitive damages, which have resulted in a number of massive verdicts against Monsanto.
U.S. District Judge Vince Chhabria, who is overseeing the federal litigation, rejected that settlement plan in May, saying it would allow Bayer to treat future claimants who have not yet developed non-Hodgkin’s lymphoma after glyphosate exposure unfairly. The court noted non-Hodgkin’s lymphoma has a latency period of 10 to 15 years, but the agreement only provided a four-year window to file.
To limit its future liability, Bayer also recently announced plans to remove the active ingredient glyphosate from Roundup weed killers sold to U.S. residential customers by 2023. The products would still be sold under the Roundup label, but would use a different active ingredient, which has not been linked to a risk of non-Hodgkin’s lymphoma. However, glyphosate would still be used in products sold to agricultural businesses and farmers, and in product sold in other parts of the world, Bayer officials said.
Bayer has noted the vast majority of Roundup cancer claims have come from U.S. residential users. However, the company is still expected to face years, if not decades, of future litigation and trials, as prior users develop non-Hodgkin’s lymphoma after exposure to the product during the decades it has been on the market without any cancer warnings.