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The U.S. District Judge presiding over all federal Roundup lawsuits has rejected a proposed $2 billion class action settlement, which Bayer hoped would limit its liability in future claims, but critics argued was unfair to consumers who have not yet been diagnosed with non-Hodgkins lymphoma and have no way to know their future rights were being taken away.
Bayer and it’s Monsanto unit have faced more than 120,000 non-Hodgkins lymphoma lawsuits already filed by former users of the controversial glyphosate-based weedkiller. However, as new cases of cancer continue to be diagnosed in the future, the company is expected to face a steady stream of new claims for years, if not decades.
Following a string of massive losses in early bellwether trials, Bayer announced a Roundup settlement last year, which included more than $9 billion to resolve currently filed or pending claims, as well as another $2 billion that would be set aide to resolve future cases over the next four years, through a proposed Roundup class action deal, which required Court approval.
Under terms of the proposal, consumers would have been prevented from filing new complaints for a four year period, during which time a “science panel” would review the evidence about the link between Roundup and cancer. In addition, future plaintiffs who rejected proposed settlement offers made through the fund would be barred from seeking punitive damages against the companies at trial, cutting off the potential for the type of verdicts returned by early juries, who added millions to awards intended to punish Monsanto for recklessly disregarding the health of consumers.
In a pretrial order (PDF) issued on May 26, U.S. District Judge Vince Chhabria rejected a request for preliminary approval, blasting the proposed agreement as unfair for those who have not yet brought Roundup cancer claims. The Court noted that non-Hodgkin’s lymphoma has a latency period of 10 to 15 years, but the agreement only provides a four-year window to file.
In addition, Judge Chhabria noted the four-year fund could be exhausted before all of the victims and potential plaintiffs step forward or even suspect they may have developed cancer due to Roundup use, since Bayer and Monsanto have, thus far, refused to put a label warning on the popular herbicide about the potential cancer risks.
The Court also raised doubts about the value of medical monitoring, and an agreement to create a science board to further look at the link between glyphosate, the active ingredient in Roundup, and cancer risks.
“In sum, the settlement proposed by these attorneys would accomplish a lot for Monsanto. It would substantially diminish the company’s settlement exposure and litigation exposure at the back end, eliminating punitive damages and potentially increasing its chances of winning trials on compensatory damages,” Judge Chhabria wrote. “It would accomplish far less for the Roundup users who have not been diagnosed with NHL—and not nearly as much as the attorneys pushing this deal contend.”
The decision came just days after Judge Chhabria raised concerns about the settlement agreement during a hearing last week. However, at the time he said it would take him a significant amount of time to make a decision.
In this latest order, the Court said it was clear the settlement agreement was unfair and that the motion to approve should be rejected. Therefore, the parties would have to submit a new proposal if a fair settlement can be reached that reasonably protects the interests of Roundup users who have not yet been diagnosed with non-Hodgkins lymphoma.
A number of media reports now say Bayer, following the judge’s ruling, is weighing whether it should remove glyphosate as the active ingredient in Roundup, but only for products sold for residential use. Company officials said they are not considering a Roundup recall at this time, however, and are unlikely to do so.
The company said it is still focused on finding a workable settlement agreement, acknowledging that a class action settlement may not be possible for dealing with the future claims.