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Bayer Jury Awards on Roundup Underscore Legal Rift Over Science

Aug. 1, 2019, 8:01 AM

Jurors have sided with plaintiffs in all three cases over Bayer AG’s herbicide Roundup to go to trial so far, finding that glyphosate causes cancer and awarding a total of more than $2.2 billion in damages.

Those results underscore a growing skepticism of juries to trust the science conducted by regulators, which, if it continues, could have profound impacts on the ability of companies to defend themselves in product liability cases, several legal analysts told Bloomberg Environment.

“Over the past 10 years, jurors have become increasingly skeptical of government regulators and the notion that science is pure,” said Allan Kanner, a plaintiffs’ attorney with Kanner & Whiteley LLC who handles toxic tort cases.

Monsanto, which was acquired by Bayer AG last year and which makes Roundup, has been accused of covering up the chemical’s health risks.

The first Roundup verdict came in August 2018, when a state jury awarded California groundskeeper Dewayne Johnson $289 million, which was later reduced to $78 million. Since then, the number of plaintiffs who have filed lawsuits blaming Roundup for their cancers has grown to 18,400, according to Bayer’s second-quarter report released July 30. And the actions have been filed by a wide range of plaintiffs including, just last month, former NFL running back and ESPN analyst Merril Hoge.

Despite losing at trial in each of the three cases to go before a jury, the company remains confident that appellate judges will be more willing to side with the company’s toxicology evidence, which includes findings by both federal and international regulators.

“We continue to believe that we have meritorious defenses and intend to defend ourselves vigorously,” the company said in its report.

But Kanner said that strategy is based on a premise that regulatory experts still hold a deciding influence over jurors.

“That model, which Bayer has used in these first three trials, is based on a world view among jurors that no longer exists, or is rapidly eroding,” he said.

As the number of cases against Bayer mounts, speculation is growing among legal analysts that glyphosate has the potential to prompt a raft of claims globally.

Change in Attitude

The growing public concern over Roundup’s glyphosate has come as regulatory agencies, including the Environmental Protection Agency and the European Food Safety Authority, have taken new looks at the chemical and found that it probably doesn’t cause cancer.

And, of the 160 countries and regulatory agencies that have examined glyphosate’s safety, only the World Health Organization’s International Agency for Research on Cancer (IARC), has classified glyphosate as “probably carcinogenic to humans.”

The lack-of-cancer findings by the vast majority of the regulators who have studied glyphosate not swaying jurors amounts to a significant change in attitude, some legal analysts say.

“Glyphosate is a product that regulatory authorities, and the overwhelming body of science, still deem to be safe,” said Mark A. Behrens, who co-chairs Shook, Hardy & Bacon LLP’s Public Policy Practice Group.

“This isn’t like asbestos, or some pharmaceutical with an adverse effect, or a faulty airbag,” he said. “These are products that regulatory authorities still maintain are totally safe, and don’t require any special kind of warning label, let alone being taken off the market.”

The EPA April 30 said glyphosate has little toxicity to humans when used according to the label.

But less than two weeks later, another jury, this one also in a state court in California, came to the opposite conclusion and ordered Bayer to pay $2 billion to Alva and Alberta Pilliod, a couple who blamed their non-Hodgkin lymphoma on Roundup. That award was later reduced to $86.7 million.

With its verdict, the jury found that Monsanto both failed to adequately warn consumers of the risks associated with its product and, further, worked to suppress scientific evidence of the chemical’s cancer link.

U.S. District Judge Vince Chhabria, who is overseeing the federal court where many of the Roundup cases have been sent, cited “credible evidence on both sides of the scientific debate” about glyphosate’s potential for causing cancer when he denied Bayer’s request for a retrial of Edwin Hardeman‘s case, which ended in a March 27 verdict in his favor.

The judge also said “the metaphorical jury is still out on whether glyphosate causes non-Hodgkin’s lymphoma.”

Brent Wisner, who served as co-lead counsel for the plaintiffs in two of the Roundup cases to go to trial, said the outcomes in his clients’ favor show that jurors are recognizing that government agencies are too cozy with the companies they’re supposed to regulate.

“Agencies are filled with humans and humans make mistakes. When it comes to Roundup, EPA and all these other regulators, made a mistake because Monsanto has captured these agencies,” said Wisner, an attorney with Baum, Hedlund, Aristei & Goldman PC.

The reduction of the award from $2 billion to $86 million doesn’t change anything about the underlying facts, he said. The court, in reducing the amount, said the jury’s billion-dollar punitive damage awards were excessive and unconstitutional, but rejected Bayer’s request to remove the punitive award outright.

Regulatory Floors, Plaintiff-Friendly Juries

The three plaintiff victories also show, some analysts say, that jurors agree that, whether regulators are favorably inclined to the companies they regulate or not, just because companies abide by all the regulations that apply to them, they still may face the possibility of huge adverse verdicts.

“Intuitively, that might seem unfair,” said Alex Nunn, an assistant professor of law at the University of Arkansas.

“But increasingly, these big verdicts are forcing companies to recognize that the standard of care established by agency regulators is simply a floor—a minimum threshold of permissible behavior.”

“If companies do just enough to avoid reprimand from the government, they are perhaps still exposing themselves to significant liability in lawsuits brought by private individuals,” he said.

So far, all three Roundup cases have been tried in San Francisco Bay Area. California perennially tops the American Tort Reform Association’s list of “judicial hellholes” where, according to the group, “judges and legislators alike have a propensity to expand liability at almost every given opportunity.”

“I do think there are reasons to view these three verdicts as problematic and I do think there are things happening out in the world that contribute to the volume of cases,” said Rakesh Kilaru, an attorney with Wilkinson Walsh & Eskovitz LLP, who served as trial counsel for Monsanto in the Hardeman case, decided March 27.

In the first three trials, the pool of potential jurors was subject to a barrage of advertising from third-party lead-generating companies trying to assemble potential cases for plaintiffs’ firms, Kilaru said.

“San Francisco was already a pretty hostile environment for Monsanto,” he said. “But it’s hard to imagine that heavy plaintiff advertising and publicizing of previous verdicts isn’t contributing to the amount of cases.”

Further, in the Hardeman case, Kilaru said, plaintiffs had an unfair advantage of being allowed by the court to “cherry-pick” the scientific evidence they wanted to put forward.

Given those “crosscutting problems” in first three trials, Kilaru said Bayer remains confident an appeals court will see things differently.

In August, Bayer is scheduled to face its first trial outside California in a location that many analysts see as more neutral ground—St. Louis. While that area has a reputation as generally being plaintiff-friendly, Monsanto was headquartered there from 1901 to 2018.

To contact the reporter on this story: Adam Allington in Washington at aallington@bloombergenvironment.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Chuck McCutcheon at cmccutcheon@bloombergenvironment.com; Steven Patrick at spatrick@bloomberglaw.com