Bayer Petitions Supreme Court to Review Roundup Cancer Lawsuit Verdict, In Latest Attempt To Avoid Liability For Failure to Warn

As part of its latest attempt to stem the tide of Roundup lawsuits brought by former users of the weed killer diagnosed with non-Hodgkins lymphoma, Bayer has filed a petition with the U.S. Supreme Court, seeking to overturn a $25 million verdict in the first case to go before a federal jury, which it hopes may also prevent other claims from being successful.

Bayer and its Monsanto unit have faced more than 120,000 non-Hodgkins lymphoma lawsuits brought throughout the U.S. over the past few years, each raising similar allegations that users of the widely marketed weed killer were not adequately warned about the cancer risks associated with exposure to glyphosate contained in Roundup.

Following a series of massive losses in early cases that went to trial, Bayer agreed to pay billions in Roundup settlements, but it still faces thousands of unresolved lawsuits and new complaints continue be filed as users are diagnosed with non-Hodgkins lymphoma caused by prior exposure to the weed killer.

On Monday, Bayer filed a writ of certiorari (PDF) with the U.S. Supreme Court, asking the highest appellate court in the nation to overturn a decision by the Ninth Circuit Court of Appeals, which upheld a $25 million verdict in a case brought by Edwin Hardeman, who developed cancer after spraying Roundup around his home for decades. However, the company hopes that a favorable decision by the U.S. Supreme Court will also prevent other claims from moving forward.

Hardeman’s case was the first Roundup trial to go before a jury in the federal court system, ending with an $80 million verdict in March 2019. The jury awarded $5 million in compensatory damages for medical bills, lost wages, pain and suffering, with another $75 million added for punitive damages, which were intended to punish Bayer’s Monsanto subsidiary.

Following post-trial motions, the punitive damages portion of the award was reduced to $20 million, resulting in a final judgment of $25 million. However, Bayer and Monsanto appealed the verdict to the U.S. Court of Appeals for the Ninth Circuit, presenting arguments that it hoped would not only overturn the verdict in this case, but prevent other plaintiffs from obtaining massive verdicts in other cases.

In May, the Ninth Circuit Court of Appeals rejected Bayer’s efforts to have the verdict overturned and upheld the full amount of the $25 million damage award.

Bayer is now seeking one final avenue for appeal, asking the U.S. Supreme Court to review the case and address whether failure to warn Roundup claims should be pre-empted by federal law, arguing that the EPA has repeatedly concluded that no cancer warnings are warranted for glyphosate.

“[Hardeman]’s claims rest on the theory that Monsanto violated a state-law duty to warn consumers that glyphosate is a potential carcinogen,” according to the petition. “But under this Court’s precedent, that duty imposes a requirement ‘in addition to or different’ from what EPA requires. It is therefore preempted because States may not require a warning label where EPA has decided none is appropriate.”

The petition also asks the high court to review the Ninth Circuit’s standard for admitting expert testimony and claims the decision could have a broad impact on companies, leaving them open to being “severely punished” for not putting cancer warnings on products the EPA says doesn’t need them.

If the U.S. Supreme Court agrees to hear the appeal, and returns a favorable ruling for Bayer, the company hopes that the decision may have far-reaching consequences on thousands of other cases being pursued by former users of Roundup. However, while pursuing the challenge, the company is continuing efforts to settle other cases.

Earlier this month, Bayer announced 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.

The U.S. District Judge presiding over the federal litigation has also ordered parties to participate in a mediation program where plaintiffs will receive an offer to settle their Roundup case. However, at the same time, the Court is preparing several large waves of unresolved cases for trial.

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.

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