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Monsanto says last week’s Supreme Court decision limiting the types of claims plaintiffs can make in state courts should, along with a proposed class action addressing Roundup cases, substantially limit litigation over its popular weed killer.
But it might not be easy. Plaintiffs’ lawyers say other claims can still be brought and that the class action proposed by the company is deeply flawed, especially by trying to cover people who in the future might contract non-Hodgkin lymphoma from exposure to Roundup.
“Together with today’s positive ruling, the class – which has received preliminary approval – will help ensure that Monsanto can significantly contain this litigation,” the company’s statement issued after the June 25 ruling says. Monsanto is a subsidiary of Bayer, which bought the company in 2018.
Monsanto, which has spent at least $10 billion to resolve Roundup claims, still faces thousands of lawsuits, many of those in state court.
Asked what to expect in Roundup litigation following the Supreme Court decision, plaintiffs’ lawyer Ashley Keller said simply, “More cases, just not ones with label-based failure to warn claims.”
The court limited its decision by ruling that those claims are preempted by the Federal Insecticide, Fungicide, and Rodenticide Act. As explained by the Crowell law firm, the 7-2 opinion “held that FIFRA expressly preempts state tort claims that would require a manufacturer to add or modify warnings on a pesticide label, at least where [EPA] has evaluated the relevant risk and approved the label, whether with warnings reflecting the agency’s assessment or without a corresponding warning.”
But it did not preempt failure-to-warn claims that are not label-based.
Ashley Keller (Linkedin photo)Leslie Brueckner, an attorney at Singleton Schreiber, said such claims could focus on advertising or marketing claims that could include alleged “misrepresentations that Bayer makes about Roundup,” as well as design defect claims, “where basically, if somebody can show that there was a reasonable alternative design” that would reduce the risk of getting cancer.
Contending that Roundup is safe to use as directed, Bayer points to regulatory approvals around the world, including EPA’s conclusion that glyphosate, the active ingredient in Roundup, is likely non-carcinogenic. The International Agency for Research on Cancer, part of the World Health Organization, concluded in 2015 that glyphosate probably causes cancer in humans, which helped spur the filing of lawsuits against the company.
“They're certainly going to argue, we're going to try to limit liability, but I think the answer is, it remains to be seen,” Brueckner said. “I think there's probably going to be some reduction [in cases], but it's hard to say.”
Her firm currently has no Roundup cases but she represented plaintiff Edwin Hardeman in a case he won in federal district court that was upheld by the 9th Circuit Court of Appeals in 2021.
A Monsanto spokesperson said the company will be applying the Supreme Court decision in lower courts on a “case by case, claim by claim” basis.
The company has always thought of the class action settlement and a favorable Supreme Court decision as “mutually reinforcing elements,” the spokesperson said.
The company will prioritize cases where trial dates have been set, as well as appellate cases that are not resolved, he said.
Hearing delayed on proposed class action settlement
But Monsanto faces another hurdle in its quest to largely contain the outstanding litigation – opposition to the $7.25 billion proposed class action, which has already received preliminary approval in Missouri state court.
A hearing on final approval was set for July 9, but the judge overseeing the case has moved the hearing to Aug. 19.
Plaintiffs’ lawyers are objecting. Keller, who represents claimants at Keller Postman, removed the case to federal court, but a U.S. district judge sent it back to the state court, finding those parties could not style themselves as “defendants” to object to the settlement. His clients and other objectors are attempting to appeal that decision in the federal 8th Circuit Court of Appeals, arguing that the Class Action Fairness Act of 2005 requires consideration of the matter in federal court.
CAFA sought to broad
Vince Chhabria (Court photo)en the role of federal courts in adjudicating class actions due to perceived abuse of the process in state courts.
“It is no accident that Monsanto and class counsel elected to file a ‘problematic’ class in state court,” according to a brief filed by Keller and other objectors in the 8th Circuit Court of Appeals, quoting U.S. District Judge Vince Chhabria at an April 30 hearing. “They knew from direct experience it would have been dead on arrival in any federal court.”
At that hearing, Chhabria was highly critical of Monsanto’s proposed class action, calling it not just problematic, but saying it had “major problems” and was “mind boggling.” Ultimately, he decided he did not have jurisdiction to stop it from proceeding in state court.
Among its problems, said Brueckner, is that it purports to cover future claimants, which is expressly barred by a Supreme Court decision from 1997.
“I think the odds that the class action withstands judicial scrutiny if it's approved by the Missouri trial court are extremely low, because the U.S. Supreme Court's been very clear that you can't have a class action that resolves future personal injury claims, and that's basically what this class action does.”
“Class settlements (like this one) that purport to bind hypothetical future claimants are unambiguously unlawful,” according to Keller’s 8th Circuit brief, citing the high court’s decision in Amchem Prods. Inc. v. Windsor. “In a friendly state court, though, the deal has a chance.”
In 2021, Chhabria rejected a class action proposal from Monsanto that offered medical monitoring for Roundup users who had not been diagnosed with non-Hodgkin lymphoma. He called it “clearly unreasonable” for them.
He said a compensation fund set up for such future claimants “is designed to last only four years [and] may even be exhausted earlier by claims from people already diagnosed with NHL.” In addition, he said that since “many people … will likely receive their diagnosis more than four years down the line (with or without medical monitoring), they will not be able to request compensation from the fund.”
“The proposed settlement is nothing new,” the 8th Circuit brief said. “It attempts a do-over of a nationwide class settlement that was rejected five years ago at the preliminary approval stage by the Northern District of California.”
In a statement after the delay of the hearing in state court, Monsanto said it supported the new date.
The company characterized the opposition to the class action as “repeated, baseless efforts by a small number of objectors to obstruct the class settlement approval process – all of which have been rejected by courts to date. More time also will give all concerned the opportunity to consider the implications of the U.S. Supreme Court’s decision preempting state law-based failure-to-warn claims in this litigation.”
In announcing the settlement, Monsanto said it would make “declining capped annual payments for up to 21 years totaling up to 7.25 billion U.S. dollars, following court approval. The long-term payment stream will provide the company with both greater certainty and control regarding its litigation costs for current claims and potential future claimants.”
