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Although Bayer announced earlier this year that Roundup settlements had been reached to resolve most of the U.S. litigation over cancer caused by the controversial weedkiller, a federal judge issued updated scheduling orders last week which call for dozens of cases to resume preparations for trial, since the parties now report less than half of all cases pending in the federal court system are actually subject to a signed agreement.
In June 2020, Bayer reported it would pay more than $10 billion to settle about 75% of the 125,000 cases pending at that time, each involving similar allegations that its Monsanto subsidiary failed to warn consumers that exposure to Roundup may cause non-Hodgkins lymphoma.
After the announcement, deadlines established in the litigation were all put on hold to allow the parties time to finalize the settlements and resolve additional cases. However, actual deals have not yet materialized in as many cases as the manufacturer previously suggested.
While most of the lawsuits are filed against Bayer’s Monsanto unit in Missouri, California or other state court systems, about 3,832 of the cases were centralized in the the U.S. District Court for the Northern District of California, as part of a federal multidistrict litigation (MDL), where U.S. District Judge Vince Chhabria has presided over coordinated discovery and a series of early “bellwether” trials.
According to a joint case management statement (PDF) submitted on December 2, the parties reported that only about 1,843 of the cases pending in the federal court system are subject to a finalized Master Settlement Agreement or even a Term Sheet with plaintiffs’ lawyers, leaving more than half of the MDL cases unresolved.
Those numbers were reported after Judge Chhabria previously indicated active deadlines in the litigation would be reinstated to prepare large groups of cases for trial if progress was not made to settle remaining claims.
“The parties remain actively engaged in ongoing settlement discussions and/or Monsanto is making contact with all of the counsel who represent these 1,989 (non-settled) plaintiffs,” according to the joint statement. “Monsanto has reached out to all law firms that have three or more unresolved cases and is in the process of gathering information about those cases in order to facilitate resolution.”
Days after the statement was submitted, Judge Chhabria issued modified schedules for preparing two waves of cases for trial, including cases originally filed in Illinois and North Carolina in one wave, and all cases from Pennsylvania and Texas in the other wave.
According to an order (PDF) impacting cases from Illinois and North Carolina, a deadline has been set for parties to complete all fact discovery by January 15, 2021. They will then engage in expert discovery in the cases during the first half of the year, with a hearing on any challenges to the admissibility of expert opinions under the federal Daubert standard to be considered on May 28, 2021, if necessary.
Following a ruling on final pre-trial issues, Judge Chhabria may begin remanding cases to North Carolina and Illinois for individual trial dates in the second half of 2021, if additional settlements are not reached.
In a second order (PDF) impacting a new “wave” of cases from Pennsylvania and Texas, the parties will engage in fact discovery through June 15, 2021, before turning to expert discovery in the second half of next year. Any Daubert challenges on these cases will be considered at a hearing on December 13, 2021, setting up the cases for potential trial remand in early 2022.
As negotiations continue, Bayer indicated last month that the total cost of settling Roundup lawsuits has increased, suggesting in a third quarter earnings statement that 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. However, with so many un-settled claims, in remains to be seen what the final amount of liability exposure the company may face.