Bayer Has No End in Sight for Roundup Non-Hodgkins Lymphoma Lawsuits After Supreme Court Refuses to Consider Appeal

The U.S. Supreme Court has decided not to even consider a request filed by Bayer to overturn a $25 million verdict awarded to a man who developed non-Hodgkin’s lymphoma from Roundup, which raised allegations similar to those in thousands of lawsuits being pursued by former users of the ubiquitous glyphosate-based weed killer.

At one point Bayer and it’s Monsanto subsidiary faced nearly 100,000 Roundup non-Hodgkin’s lymphoma lawsuits, alleging that information and warnings about the cancer risk associated with the weed killer was withheld from consumers and regulators for years.

Following a series of massive jury awards returned in favor of plaintiffs in 2018 and 2019, Bayer agreed to pay billions in Roundup settlements. However, it has continued to pursue appeals from several early verdicts, and thousands of claims continue to work their way through the court system after plaintiffs rejected offers to settle.

Although it is rare for the U.S. Supreme Court to grant review of a civil verdict, only agreeing to consider less than 1% of all claims presented, Bayer has rested much of its legal defense strategy on convincing the U.S. Supreme Court to dismiss the remaining litigation, arguing that the claims should be pre-empted since the EPA authorized the glyphosate-based weed killer.

Bayer told investors last year that if it was successful on appeal with the Supreme Court, it could “effectively end future litigation” over Roundup. However, those hopes appear to have been dashed.

Yesterday, the Supreme Court Justices indicated that they will not even consider a petition filed by Bayer, leaving intact a judgement awarded to Edwin Hardeman, which was the first case to go before a federal jury. The Supreme Court gave no opinion on why it rejected Bayer’s appeal, but the decision comes after the U.S. Solicitor General urged the Court not to consider the case.

Hardeman developed non-Hodgkin’s lymphoma after spraying Roundup around his home for decades. In March 2019, a federal jury in California ordered Bayer to pay $80 million, which was later reduced down to $25 million by the Ninth Circuit Court of Appeals. However, the liability finding was kept intact.

Bayer filed a petition for a Supreme Court Roundup appeal in the case in August 2021, arguing that since Roundup’s warning label was approved by the U.S. Environmental Protection Agency (EPA), the company should be shielded from failure to warn claims brought by Hardeman and others, who claim the label warnings were insufficient. It is also challenging some of the expert witness testimony used by Hardeman’s legal team during the trial.

On May 10, U.S. Solicitor General Elizabeth B. Prelogar, filed an amicus brief with the Supreme Court, urging the high court to reject Bayer’s petition. She argued that the Court of Appeals found California common law paralleled federal laws which prohibit products from being misbranded, and that the Supreme Court should affirm the Ninth Circuit’s rejection of Bayer’s claim that EPA’s decision to allow Roundup to go on shelves without a cancer warning prevents California from requiring one.

California, the EPA and Bayer and Monsanto have battled for years over whether Roundup should be listed on California’s Prop 65 toxic chemicals list. Various judges have bounced back and forth on the issue, with a federal judge issuing a permanent injunction in 2020 preventing the state from forcing Roundup products to carry cancer label warnings.

With no opinion given, it is unclear which arguments were persuasive to the Court.

Bayer has also petitioned the Supreme Court to overturn a verdict in a second case, which led to an $87 million verdict for Alva and Alberta Pilliod, a California couple who both say they developed cancer after years of Roundup use. However, the recent decision to rejection the petition in the Hardeman seems to make it unlikely the Supreme Court will grant a review in the Pilliod matter.