The ongoing legal and regulatory battles over the use of Roundup, one of the most widely-used crop protection products in U.S. history, is taking on some new twists.

Bayer will pay a Roundup plaintiff about $100,000 so long as he pursues — and wins — a federal appeal on an issue where Bayer already won at the district court level, in the hopes of getting a decision that the company could take to the Supreme Court.

The legal issue is whether the Federal Insecticide, Fungicide, and Rodenticide Act pre-empts a state law failure-to-warn claim. Bayer (named as Monsanto in the litigation) maintains it does, and has been seeking a case to bring to the Supreme Court making that argument. It's a gamble, but a win on federal preemption could reduce the claims brought by thousands of others and save Bayer significant legal costs over the longer-term.

In a case in federal court in Georgia, Carson v. Monsanto, where the company won on that question in U.S. District Court, Bayer appears to have found one it likes. But lawyers for plaintiffs in California who have won verdicts against the company in three separate cases say Bayer is engaged in a “pay-to-appeal scheme” in order to create a split in the circuit courts of appeals that would make Supreme Court review of the FIFRA/state tort law issue more likely. A win in the high court could undercut the authority of those decisions and put at risk payments to thousands of Roundup plaintiffs.

The company “is paying [John] Carson to appeal a decision that Monsanto already won in the district court because Monsanto is hoping to secure favorable appellate precedent in 11th Circuit so that it can set the stage of a Supreme Court run,” the plaintiff firms said.

“We proved at the Roundup trials that Monsanto tried to manipulate the science and lied about how Roundup causes cancer for decades,” said the lawyers, R. Brent Wisner of Baum Hedlund, Jennifer A. Moore of Moore Law Group, and David J. Wool of Andrus Wagstaff. “Now Bayer and Monsanto are trying to manipulate the judiciary and buy appellate review.”

They filed a letter with the 11th Circuit Court of Appeals, based in Atlanta, noting that the Carson case is the first time Bayer has won on the pre-emption issue, and asking the court to dismiss the appeal with prejudice. 

“Litigants … cannot buy appellate review of decisions they won,” they said. “The court should reject this attempt to manipulate our judicial system and dismiss the appeal with prejudice because Carson and Monsanto are deceiving the court by claiming that an actual case or controversy exists when, in truth, this appeal was bought and paid for by Monsanto.”

Bayer, however, said in a statement that it’s been “completely transparent about its desire to appeal Roundup failure-to-warn cases on federal preemption grounds, and this settlement, which the plaintiff voluntarily agreed to, is an appropriate path for such an appeal.”

Under the settlement, Bayer agreed to pay Carson $100,000 “to drop the surviving design defect claims and to pursue the preemption ruling against him,” the company said. “If he succeeds in the appeal, he gets an additional substantial payment.”

If he drops it, however, “he would simply have to return the $100,000 settlement payment because he would be in breach of its terms,” the company said. “Thus, plaintiffs’ characterization of the $100,000 as a ‘penalty’ in a court filing is completely false, and nothing more than an effort to block this appeal on federal preemption grounds which threatens their interests in this litigation.”

Bayer previously decided against seeking review of a California court’s decision involving Dewayne Johnson, the first Roundup plaintiff to go to trial. Instead, it decided to wait for a decision from the Ninth Circuit Court of Appeals in a case involving Edwin Hardeman, which it said “will serve as a better case for review by the Supreme Court.”

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The pre-emption question is at issue in that case and in another case involving plaintiffs Alva and Alberta Pilliod, now in California appellate court.

Bayer maintained in a civil appeal statement to the 11th Circuit that the settlement is supported by other appeals court decisions, but Wisner, Wool and Moore said the "pay-to-appeal scheme" bears "little resemblance to the settlements described by Monsanto."

Carson's lawyer conceded in conversations with one of the other Roundup lawyers that she could not find scientific evidence linking her client's condition, malignant fibrous histiocytoma, to Roundup exposure, according to an account of those conversations filed with the 11th Circuit. The Roundup cases litigated, and those involved in a proposed multibillion-dollar settlement, involved non-Hodgkin's lymphoma.

The lawyer, Ashleigh Madison, did not return an email seeking comment, but Bloomberg reported she said in an email that "all allegations of impropriety are 'categorically denied' and will be addressed in court."

“My client’s best interests are my top priority, as they have been throughout my representation of him,” she told Bloomberg. “Here, my client’s best interests are not served by unfounded public scrutiny.”

David Wool, an attorney with Andrus Wagstaff, said in a declaration to the court that he told Madison in a conversation that Monsanto was simply trying to "create favorable appellate law for itself" and that "Carson was risking the rights of people who are actually injured by pesticides to have their day in court in exchange for Monsanto paying Madison and her client. Madison stated that she agreed with this assessment."

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