Judge raises doubts on Bayer Roundup settlement

18:39 PM | July 13, 2020 | Robert Birkett

The federal judge overseeing Bayer’s proposed settlement with tens of thousands of current Roundup cases, which would also create a system for handling future cases, has indicated that he would reject the plan.

The US District Court for the Northern District of California has set a hearing for 24 July on whether to grant preliminary approval of the settlement. The deadline for potential class members to oppose the motion for preliminary approval, or to file objections to any aspect of the settlement, is 13 July. Since setting these dates, the Court has received many requests to push them back from potential class members who oppose the settlement. The opponents contend that because the settlement is complex, novel, and problematic in many respects, they need more time to analyze it and file comprehensive opposition briefs.

Judge Vince Chhabria of the US District Court for the Northern District of California in San Francisco has issued a note refusing to delay the 24 July court hearing in the case. But he says that the Court was "tentatively inclined" to deny the motion. The judge raises doubt over whether even with the agreement of the opposing parties, "it would be constitutional (or otherwise lawful)" to hand over judgement of whether glyphosate and at what dose could cause cancer "from judges and juries to a panel of scientists."

But the parties to the settlement, including Bayer, have responded with moves to withdraw the proposal to the judge.

Last month, Bayer reached a deal conditional on the judge’s approval to pay up to $10.9 billion to settle the class action and create a system for handling further cases. The deal came after three juries in recent years had awarded large verdicts to plaintiffs alleging that Roundup caused non-Hodgkin lymphoma (NHL). The glyphosate litigation settlement would cover about three quarters of the some 125,000 filed and unfiled claims involving around 90,000 litigants.
The judge raised doubts over how the proposal would benefit a class of Roundup users who either have cancer but have not yet sued Bayer legacy company Monsanto or have not yet developed cancer. Judge Chhabria moots, "In an area where the science may be evolving, how could it be appropriate to lock in a decision from a panel of scientists for all future cases? For [example], imagine the panel decides in 2023 that Roundup is not capable of causing cancer. Then imagine that a new, reliable study is published in 2028 which strongly undermines the panel’s conclusion. If a Roundup user is diagnosed with NHL in 2030, is it appropriate to tell them that they’re bound by the 2023 decision of the panel because they did not opt out of a settlement in 2020?"

Court-appointed mediator Kenneth Feinberg rated the glyphosate litigation agreement as “designed as a constructive and reasonable resolution to a unique litigation." But the class settlement is subject to approval by Judge Chhabria.

Bayer’s reaction

Bayer has reiterated its continued backing for the deal, while backing the withdrawal of the "pending motion for preliminary approval of the parties’ issue class agreement." The withdrawal will enable the parties to more comprehensively address the questions raised by Judge Chhabria, Bayer says. The company says that it seeks a viable solution. "Mass tort settlement agreements like this are complex and may require some adjustments along the way, but the company continues to believe that a settlement on appropriate terms is in the best interest of Bayer and all of its stakeholders," it says.