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Monsanto has a big day in the Supreme Court April 27, where lawyers for the Bayer-owned subsidiary will present arguments in hopes that a favorable decision will make thousands of Roundup cases go away.
But lawyers for plaintiffs whose cases have been consolidated before a federal judge in California say even if Monsanto were to prevail in the high court, there are other options open to people who allege exposure to the glyphosate-based herbicide caused their non-Hodgkin lymphoma.
They also say the company is trying to use the potential of a favorable verdict in the high court to build support for a $7.25 billion class-action settlement announced in February that would address current and future cases.
Under pressure from shareholders, Bayer has been trying to get a handle on litigation it inherited following its purchase of Monsanto in 2018. The company has fought lawsuits in state and federal courts, winning some and losing some, and paying $11 billion to settle about 100,000 cases in 2020.
In February, Bayer CEO Bill Anderson said the proposed class-action settlement “addresses the bulk of eligible current and future cases [and] wouldn't even be possible without the Supreme Court's decision to accept our case.”
A Supreme Court decision in favor of the company “would address cases not covered by the settlement, including significant adverse pending judgments, plus a favorable decision from the Supreme Court would both disincentivize and cover potential opt-outs from the settlement," Anderson said, referring to the need to keep people from choosing to not participate in the settlement.
Many cases remain – “tens of thousands” in state courts, according to Monsanto, and a much lower number in federal court. Monsanto says about 250, while co-lead counsel for the multidistrict litigation (MDL) plaintiffs in California says it’s 4,000. (Monsanto says that number includes cases that have already settled.)
Company pushing to move settlement forward
And now, with the Supreme Court due to hear arguments Monday, the company is moving quickly to get its proposed class-action settlement approved in state court in Missouri. A judge in St. Louis County granted preliminary approval March 4, after holding a hearing Feb. 17, the same day the proposal was filed in his court.
Plaintiffs’ lawyers in the federal case say they didn’t even know about the hearing and were rebuffed in their later attempts to intervene and present their arguments. They “exhausted requests for relief all the way up to the Missouri Supreme Court.”
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They have asked U.S. District Judge Vince Chhabria, who has presided over the federal MDL, to issue an order “confirming that people with remanded federal cases are not part of the proposed class” and prohibiting Monsanto from challenging plaintiffs who decide to “opt out” of the Missouri settlement. A hearing is scheduled for April 30 in San Francisco to consider plaintiffs’ motion for an injunction.
Bill Anderson (Bayer photo)Lead counsel for the MDL plaintiffs, supported by amicus briefs filed by other parties, also claim that the settlement violated due process, especially for so-called “futures” clients who may get sick years later.
Monsanto says the motion is meritless, noting that the plaintiffs had not succeeded in blocking the preliminary approval. The class, according to the company, has support from plaintiff firms with tens of thousands of claimants, including the Wagstaff Law Firm, which was in the MDL leadership.
In a statement, the company says the motion "has no merit, and is the latest effort by one law firm to undermine the class settlement, all of which have been rebuffed by every court to consider them.”
“The class settlement already has received preliminary approval from a Missouri court, is supported by plaintiffs’ counsel representing tens of thousands of claimants, and was carefully crafted to exclude the fewer than 250 plaintiffs with claims pending before the MDL court on the settlement date,” the statement says. “Under the class settlement, those plaintiffs have the right to opt in if they choose, and other plaintiffs who are covered by the class, including those with cases in other federal courts, can opt out.”
In the motion for injunctive relief, plaintiff lawyer and co-lead counsel Robin Greenwald of Weitz & Luxenberg says Monsanto has been “overstating the possible impact of [the Supreme Court case] on the Roundup litigation [and] did not build into the settlement any protections to keep Monsanto from walking away if it gets a favorable result at the Supreme Court — something Bayer’s CEO has insinuated that the company may well do.”
She cited Anderson’s statement after the settlement was announced that the Supreme Court case is “an important incentive for people to participate in the class. And so I think in that sense, it should help limit the future costs beyond what we've projected."
An amicus brief backing Greenwald says papers filed by Monsanto on the proposed settlement suggest that if the Supreme Court decides that federal pesticide law preempts state failure-to-warn claims, “most claims would be dismissed.”
“This assertion is false,” wrote David Engstrom, a law professor at Stanford. He said loss of the “failure-to-warn” option would still leave claims of “negligence, design defect, negligent misrepresentation, fraud, and appropriate warranty” available to plaintiffs.
David Engstrom (Stanford Law photo)Whether the court rules for Monsanto is an open question. A Supreme Court decision in 2005, Bates v. Dow Agrosciences, involving peanut farmers who sued Dow Agrosciences over damaged crops, rejected an appeals court that found the Federal Insecticide, Fungicide and Rodenticide Act preempted state-law claims of negligence and failure to warn.
The farmers had noted the herbicide Strongarm’s label “recommended its use in all peanut-growing areas when Dow knew or should have known that it would stunt the growth of peanuts in their soil, which had pH levels of at least 7,” the Supreme Court’s summary of the case says.
Monsanto wants to overturn $1.25M ruling from Missouri
Charles Benbrook, an agricultural consultant who has done work for plaintiffs in cases involving Roundup, chlorpyrifos and paraquat, doesn’t think the court will side with Monsanto.
“I think the Supreme Court will acknowledge that there are some ambiguities in the FIFRA statute and will call upon the Congress to revisit those provisions and make its intent clearer. I don't think that they're going to overturn the Durnell ruling.”
Monsanto is specifically asking the court to overturn a ruling from the Missouri Court of Appeals awarding $1.25 million to a Missouri man, John Durnell. The company contends that FIFRA “expressly preempts any state-law labeling requirement that is ‘in addition to or different from those required under’ the statute,” quoting FIFRA itself.
Dozens of farm and industry groups, as well as pesticide makers, the United States, and 15 states, are backing Monsanto. On the other side are plaintiffs’ lawyers, smaller farmer and farmworker groups, and 20 states and the District of Columbia. Three red states – Texas, Florida and Ohio – also are supporting Durnell, arguing that “the regulation of the distribution of poisonous substances falls squarely within the historic police powers of the states.”
Another brief was filed by plaintiffs in both the Roundup MDL in California and another in Illinois encompassing lawsuits alleging Syngenta’s paraquat causes Parkinson’s disease.
“Accepting Monsanto’s preemption theory would … [reward] nondisclosure, converting manufacturer-created regulatory gaps into immunity, and leaving injured individuals with no remedy for harms that adequate warnings could have prevented,” their brief says.
The court ruled 7-2 in favor of the peanut farmers in the Bates case, but that court’s makeup was quite different from the one today. The two justices in the minority were Justice Clarence Thomas and the now-deceased Antonin Scalia. None of the seven justices in the majority are on the court any longer.
