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Plan for Remand of Roundup MDL Claims to U.S. District Courts for Trial to be Discussed at Case Management Conference

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During a case management conference today, the U.S. District Judge presiding over the consolidated pretrial proceedings for all federal Roundup lawsuits will discuss a tentative plan for remanding large numbers of individual claims back to the courts where they were originally filed for trial.

Bayer and its Monsanto subsidiary currently face more than 15,000 claims nationwide involving allegations that Roundup warnings failed to disclose the risk that users may develop non-Hodgkins lymphoma and other cancers.

At least 1,000 of the Roundup claims are pending in the federal court system, where the cases has been centralized before U.S. District Judge Vince Chhabria in the U.S. District Court for the Northern District of California as part of a multidistrict litigation (MDL).

Following a series of massive verdicts returned in early bellwether trials that have gone before separate state and federal juries, Judge Chhabria has previously indicated that the court plans to start sending individual claims pending in the MDL back to various different U.S. District Courts if the parties do not reach Roundup settlement agreements or otherwise resolve the litigation.

In a pretrial order (PDF) issued on May 21, Judge Chhabria presented a tentative plan for returning cases back to their home districts for trial, indicating that the parties should be prepared to discuss the process during a case management conference today.

Judge Chhabria indicates that he will decide all case-specific summary judgment and Daubert motions that have not already been addressed, so that the various different U.S. District Courts nationwide will only be left with resolving other pretrial motions, including motions in limine, motions to bifurcate and any other challenges to the admissibility of evidence.

The Roundup claims will be grouped by their governing state law, and Judge Chhabria indicates that the first group will likely involve claims stemming from California, where he has already denied general summary judgment motions under that state’s applicable law. Therefore, Judge Chhabria indicates that Monsanto will need to identify a material difference in any particular case to obtain a summary judgment ruling before the claim is remanded for trial.

If Bayer and it’s Monsanto unit face the prospect of large numbers of individual trial dates set in various different courts nationwide, it will further increase the substantial pressure to negotiate fair settlements to resolve the litigation.

Three Roundup Trial Losses In A Row For Bayer And Monsanto

Juries have hit Bayer with massive verdicts in all three Roundup claims that have gone to trial so far, and many analysts indicate that it is unsustainable for the company to continue to defend their controversial weedkiller at trial given the extent of liability the company may face before juries.

The first trial was held in California state court last summer, ending in a $289 million jury verdict, which was later reduced to a final judgment of about $78 million following post-trial motions.

Following the verdict, Bayer announced that it was pursuing an appeal, and suggested to investors that the result was not indicative for how juries would respond in the remainder of the cases.

Earlier this year, a second trial began in the federal court system, where Judge Chhabria granted an unusual request by Bayer to bifurcate the proceedings, requiring the jury to first determine whether the plaintiffs have sufficient evidence that Roundup could cause cancer, prior to a second phase where plaintiffs would present evidence about Monsanto’s liability.

Although it was widely acknowledged that this format greatly favored the manufacturer, the jury found that Roundup was a substantial cause of the plaintiff’s non-Hodgkins lymphoma diagnosis and indicated that Bayer and Monsanto should be forced to pay $80 million in compensatory and punitive damages.

Most recently, a third trial concluded last week in California state court, involving claims brought by a California couple who were both were diagnosed with non-Hodgkins lymphoma following use of Roundup. After considering evidence in the case, the jury returned a landmark $2 billion verdict, which has sent Bayer’s share price plummeting further.

Bayer has vowed to appeal all of the verdicts. One of the defenses it reportedly plans to use is a claim that the U.S. Environmental Protection Agency’s review of glyphosate, indicating that it is safe and does not cause cancer, should insulate the company from the lawsuits.

Since Bayer has not been successful in defenses raised so far, many critics have suggested that Bayer will have to start negotiating settlements to avoid the unlimited liability that may be faced as individual cases go before juries nationwide.

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