Bayer Loses Roundup Appeal of $86.7M Judgment for Couple Diagnosed With Non-Hodgkins Lymphoma

A California appeals court has dealt Bayer another defeat, rejecting an attempt to overturn an $86.7 million judgment over the failure to warn about the risk of non-Hodgkins lymphoma from Roundup, leaving the company 0-3 in attempts to reverse massive verdicts returned by juries.

Bayer and its Monanto unit have faced more than 120,000 Roundup lawsuits filed by former users diagnosed with non-Hodgkins lymphoma following regular use of the controversial glyphosate-based weedkiller, each raising similar allegations that information has been withheld from consumers for decades about the risks associated with exposure to Roundup.

Although the companies previously vowed to defend the safety of their blockbuster weedkiller at trial, in 2018 and 2019 a series of three early “bellwether” trials ended in massive verdicts after juries were presented with information about when Monsanto learned about the link between Roundup and cancer, and the efforts the company took to conceal the risk.

Following the verdicts, Bayer has agreed to pay billions in Roundup settlements to resolve cases, but continues to appeal the early verdicts and has suggested that the outcome of those appeals may result in the dismissal of claims that have not settled, and new cases that continue to be filed by individuals who develop non-Hodgkins lymphoma following use of Roundup.

Substantial Roundup Damages Justified

In this latest appeal, Bayer attempted to have a 2019 judgement entered in California state court overturned. The case involved a lawsuit brought by a husband and wife who were both diagnosed with non-Hodgkins lymphoma following years of spraying Roundup.

The jury originally returned a landmark $2 billion verdict against Monsanto, including punitive damages designed to punish the company for placing profits before consumer safety. However, the trial judge later reduced the damages to $86.7 million, including $17 million in compensatory damages and $69 million in punitive damages.

On appeal, Bayer had urged the California Court of Appeals in San Francisco to overturn the judgment, arguing that there was insufficient evidence presented at trial to justify the award. However, in an opinion (PDF) issued this week, the panel of judges affirmed the judgment and the damage award.

“Summed up, the evidence shows Monsanto’s intrasigent unwillingness to inform the public about the carcinogenic dangers of a product it made abundantly available at hardware stores and garden shops across the country,” wrote the Appellate Judges. “Monsanto knew that studies supporting the safety of Roundup were invalid when the Pilliods began spraying Roundup in their yards, wearing no gloves or protective gear, spurred on by television commercials showing people spraying Roundup wearing shorts, and undeterred by any label or product information to suggest warning or caution. At the same time, Monsanto made ongoing efforts, in the words of the trial judge, to ‘impede, discourage or distort scientific inquiry and the resulting science about glyphosate’ in conscious disregard of public health.”

The Pilliods filed a cross appeal, arguing that the trial judge reduced the jury award too much, arguing that the substantial amount of punitive damages was warranted due to the “reprehensibility” of Monsanto’s actions and the company’s net worth of almost $8 billion. However, the Appellate Court found that they did not show error in the trial judge’s reduction of the punitive damages, upholding the $86.7 million judgment.

Roundup Settlements Continue To Be Negotiated

While Bayer officials have indicated they disagree with the decision of this appeal, and are investigating the company’s legal options, the company is continuing attempts to settle other cases.

Last week, Bayer announced that 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.

In the federal court system, where the Roundup litigation is centralized before U.S. District Judge Vince Chhabria in the Northern District of California, parties have been ordered to participate in a mediation program where plaintiffs will receive an offer to settle their Roundup case. However, at the same time, Judge Chhabria is preparing several large waves of unresolved cases for trial.

To stem the tide of future cases, 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.