Products Liability Law Daily Bayer to pay over $10B to settle Roundup® product liability litigation
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Wednesday, June 24, 2020

Bayer to pay over $10B to settle Roundup® product liability litigation

By Susan Engstrom

Company also resolves dicamba-drift and PCB litigation.

Bayer announced today a series of proposed settlement agreements that will substantially resolve major outstanding Monsanto litigation, including U.S. Roundup® product liability litigation, dicamba-drift litigation, and PCB water litigation. According to a Bayer press release, the main feature is the U.S. Roundup settlement, which will bring closure to approximately 75 percent of the current Roundup litigation involving approximately 125,000 filed and unfiled claims overall. The company said that the resolved claims include all plaintiff law firms leading the Roundup federal multi-district litigation (MDL) or the California bellwether cases, and those representing approximately 95 percent of the cases currently set for trial.

The settlement resolution also establishes a mechanism to resolve potential future claims efficiently. Bayer, which acquired Monsanto Co. in 2018, will make a payment of $8.8 billion to $9.6 billion to resolve the current Roundup litigation, including an allowance expected to cover unresolved claims, and $1.25 billion to support a separate class agreement to address potential future litigation. The Roundup class agreement will be subject to approval by Judge Vince Chhabria of the U.S. District Court for the Northern District of California.

The resolutions were approved unanimously by Bayer’s Board of Management and Supervisory Board with input from its Special Litigation Committee. The agreements contain no admission of liability or wrongdoing.

Roundup litigation. The multi-step Roundup resolution includes several elements. The agreements will resolve the vast majority of the current litigation in U.S. federal and state courts, including both plaintiffs with filed cases and parties who have retained counsel but not yet filed their claims in court. Those participating in the settlement will be required to dismiss their cases or agree not to file. The range of $8.8 billion to $9.6 billion covers both the agreements already signed and those that are still under negotiation. It also reflects the fact that the number of claimants who are eligible to receive compensation under these agreements won’t be known until the claims process is well underway. The claims still subject to negotiation largely consist of cases generated by TV advertising and for which plaintiffs’ law firms have provided little or no information on the medical condition of their clients, and/or cases held by law firms with small inventories.

The three cases that have gone to trial—JohnsonHardeman and Pilliod—are not covered by the settlement and will continue through the appeals process, Bayer noted, finding that the appeals will provide legal guidance going forward.

Potential future cases will be governed by a class agreement that is subject to court approval. The agreement includes the establishment of a class of potential future plaintiffs and the creation of an independent Class Science Panel. The Class Science Panel will determine whether Roundup can cause non-Hodgkin’s lymphoma (NHL) and, if so, at what minimum exposure levels. The materials considered by the Class Science Panel that Bayer has permission to disclose or are in the public domain will be posted on a public website. Both the class and company will be bound by the Class Science Panel’s determination on this question of general causation, taking this decision out of the jury-trial setting and putting it back in the hands of expert scientists. If the Class Science Panel determines that a causal connection between Roundup and NHL is not established, class members will be barred from claiming otherwise in any future litigation against the company.

The Class Science Panel’s determination is expected to take several years. Class members will not be permitted to proceed with Roundup claims prior to the Class Science Panel’s determination, and they cannot seek punitive damages. The agreed funding is capped at $1.25 billion and will support research into treatment of NHL, NHL diagnostic programs in under served areas, and assistance payments to class members who develop NHL before the Class Science Panel’s determination and who are eligible on a need basis for assistance during that period.

Dicamba litigation. Bayer also announced a mass tort agreement to settle the previously disclosed dicamba drift-litigation involving alleged damage to crops. The company will pay up to a total of $400 million to resolve the multi-district litigation pending in the U.S. District Court for the Eastern District of Missouri and claims for the 2015–2020 crop years. Claimants will be required to provide proof of damage to crop yields and evidence that such damage was due to dicamba in order to collect. The company expects a contribution from its co-defendant, BASF, towards this settlement.

The only dicamba-drift case to go to trial—Bader Farms—is not included in this resolution [see Products Liability Law Daily’s March 2, 2020 analysis]. Believing the verdict in Bader Farms to be inconsistent with the evidence and the law, the company will continue to pursue post-trial motions and an appeal, if necessary. Bayer said that it stands strongly behind the safety and utility of its XtendiMax™ herbicide with Vapor Grip™ technology and continues to enhance training and education efforts to help ensure that growers use these products successfully. The company is settling the pending dicamba-drift cases to be able to focus on the needs of its customers.

PCB litigation. Bayer also announced a series of agreements that resolve cases representing most of the company’s exposure to PCB water litigation. Monsanto legally manufactured PCBs until ceasing their production in 1977. One agreement establishes a class that includes all local governments with U.S. Environmental Protection Agency permits involving water discharges impaired by PCBs. Bayer will pay a total of approximately $650 million to the class, which will be subject to court approval.

At the same time, the company has entered into separate agreements with the Attorneys-General of New Mexico, Washington, and the District of Columbia to resolve similar PCB claims. For these agreements, which are separate from the class, Bayer will make payments that together total approximately $170 million.

Companies: Bayer; Monsanto Co.

MainStory: TopStory SettlementAgreementsNews ChemicalNews

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