Bayer Cannot Hide Behind EPA Registration To Prevent Roundup Lawsuits in Texas, MDL Court Rules

Simply registering the weed killer with the EPA does not provide Bayer or Monsanto with liability protection, the federal judge determined

The U.S. District Judge presiding over all Roundup cancer lawsuits consolidated in federal court has rejected a motion by Bayer to have several cases from Texas thrown out based on that state’s laws.

After once facing more than 120,000 product liability claims brought by individuals throughout the United States, Bayer and its Monsanto subsidiary have agreed to pay billions in Roundup settlements to resolve individual claims. However, at the same time, new lawsuits continue to be filed and plaintiffs who rejected settlement offers still have cases being prepared for trial.

In the federal court system, all Roundup non-Hodgkin’s lymphoma lawsuits are centralized as part of a multidistrict litigation (MDL) before U.S. District Judge Vince Chhabria in the Northern District of California, where aggressive deadlines have been established for parties to complete case-specific discovery in unsettled cases, which will then be remanded back to U.S. District Courts nationwide for individual trials if the parties fail to resolve the claims.

Those cases are being prepped for trial in waves, so as not to overwhelm the court system. However, Bayer recently filed a motion for summary judgment on six of the eight remaining cases in the third wave of federal lawsuits.

All of the targeted cases were filed in Texas, where Bayer claimed it was protected from liability because Roundup cleared the EPA pesticide registration and re-registration processes. Bayer based this argument on language under the Texas Product Liability Act (TLPA), indicating that because it went through the registration process, it should be assumed that Roundup meets mandatory safety standards, granting Bayer and its Monsanto subsidiary a presumption of no liability.

In a pretrial order (PDF) issued on December 28, Judge Chhabria rejected that argument and indicates that the cases will not be dismissed under the Texas presumption of no liability.

“Based on the registration and repeated re-registration of Roundup, Monsanto contends that it is entitled to a presumption of no liability under section (a) of the TPLA,” Judge Chhabria wrote. “Monsanto does not analyze this language in any depth, and instead it appears to assume that the EPA registration and re-registration processes qualify as ‘mandatory safety standards or regulations’ within the meaning of the TPLA.”

Judge Chhabria points out that the EPA’s pesticide registration procedures do not count as safety standards, and that there are other portions of the Texas law which contradict Bayer and Monsanto’s arguments.

The decision means all eight of the Wave 3 Roundup cases will continue toward individual trials.

Following a series of massive verdicts in 2018 and 2019, Bayer started to negotiate settlements to resolve large inventories of Roundup cases being being handled by individual law firms, with reports suggesting that it has already agreed to pay about $16 billion to resolve roughly 75% of the cases filed. However, it is expected that the company will continue face lawsuits brought by individuals diagnosed with non-Hodgkin’s lymphoma for years to come.

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.