Bayer touted its settlement of most of the current claims from plaintiffs alleging exposure to Roundup caused their Non-Hodgkin lymphoma (NHL), but thousands of cases are still waiting in the wings.
The company made a major announcement Wednesday that it planned to pay between $10.1 billion and $10.9 billion to settle current and future litigation over glyphosate, the active ingredient in Roundup.
Between $8.8 billion and $9.6 billion is for approximately 125,000 current cases, about 30,000 of which involve law firms that have yet to reach agreement with Bayer. Another $1.25 billion is for claims that have not yet surfaced. Agreements were made with individual law firms, who are responsible for working out payments for their clients.
The company also announced $400 million to settle dicamba drift damage claims now in the Eastern District of Missouri.
But some law firms representing Roundup plaintiffs did not take the deal they were offered and are continuing with lawsuits. James Onder of Onder Law in St. Louis says his firm is proceeding with its inventory of 24,000 Roundup cases and criticized the settlement.
“Bayer wants to offer them pennies on the dollar,” he said of his clients.
In its announcement, Bayer said “the claims still subject to negotiation largely consist of cases generated by TV advertising and for which plaintiffs’ law firms have provided little or no information on the medical condition of their clients, and/or cases held by law firms with small inventories.”
Onder called that a “bit of puffery” on Bayer’s part. “They know all about those cases,” he said. “They have that information.”
The lawyer said given the overall settlement amount, “Realistically, I don’t see anyone getting more than $100,000 or $150,000,” which will be greatly reduced after paying medical bills and other costs.
A lawyer who also has brought cases against chemical companies said he thought the settlement was inadequate.
“Our view is congratulations to Bayer and Monsanto, hat’s off to them,” said Robert King of Korein Tillery, which has offices in St. Louis and Chicago. “They have been able to settle some pretty staggering, potentially entity-ending liabilities.”
“The plaintiffs are cancer patients and honestly, they’re victims again,” he said.
King estimated, based on the number of plaintiffs and the total amount set aside for settlement, that individual awards would come to “give or take, $100,000 per plaintiff.” He agreed with Onder that plaintiffs may not be left with much after paying medical bills and attorney fees and costs.
He also said that “It doesn’t seem like a great deal when you compare it to early results the plaintiffs have gotten at trial.”
Three trials held in California state and federal court resulted in jury verdicts totaling $2.4 billion, which were reduced by judges to $191 million. Bayer is appealing all three verdicts and the first decision could come this summer.
Bill Dodero, Bayer’s global head of litigation, said favorable appeals court rulings “may reduce or eliminate future litigation.”
Robin Greenwald, an attorney with Weitz & Luxenberg, which agreed to the deal, said in a news release that “it has been a long journey, but we are very pleased that we’ve achieved justice for the tens of thousands of people who, through no fault of their own, are suffering from Non-Hodgkin lymphoma after using a product Monsanto assured them was safe.” Greenwald is the firm’s Practice Group Chair for Environmental Pollution and Consumer Protection.
Kenneth Feinberg, who was appointed as a mediator, said the separate agreements with law firms “are designed as a constructive and reasonable resolution to a unique litigation.”
In an interview, Greenwald emphasized that the settlement “is really the only way people will see any kind of resolution in their lifetimes.”
She did, however, question the establishment of a science panel to address a potential class of future claimants and stressed that Weitz & Luxenberg was not involved in that portion of the settlement.
Bayer and plaintiffs’ lawyers are supposed to agree on the members of the panel, who cannot have been involved in the Roundup litigation. Bayer officials including CEO Werner Baumann expressed confidence Wednesday that the panel will conclude there is no “causal link” between Roundup exposure and NHL.
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Without that causal connection, “class members will be barred from claiming otherwise in any future litigation against the company,” Bayer said.
Greenwald said she wasn’t sure how Bayer came up with the $1.25 billion figure to cover future claims. “How can they know how many people are going to come down with NHL from Roundup use? How does anyone know that will be sufficient?” she asked.
“On so many levels it raises a lot of questions and concerns,” she said.
Onder said, “There’s some question as to whether a class action can be used for future liability claims.”
And King said “I would imagine that the judge is going to scrutinize this.” U.S. District Judge Vince Chhabria must approve the class.
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