Weedkiller cancer lawsuits unlikely to settle, professor says

A federal judge put the next in a series of cases arguing Monsanto's popular weed killers cause cancer on hold, saying he wanted to give both sides a chance to talk settlement. But at least one legal expert doubts the time is ripe for a deal.

"They don't yet understand the full scope of liability," said Loyola School of Law professor Adam Zimmerman.

The Bayer-AG owned company might still hope to pick up momentum while the plaintiffs' attorneys might be encouraged by the massive awards in previous trials, according to Zimmerman.

"It's kind of early when you compare it to other blockbuster product liability settlements," he said. "One verdict doesn't really provide you with a lot of information."

Even if Monsanto wanted to settle, it would not know how to structure a potential resolution because it still must work out "what types of claims are going to be worth settling and which will be worth litigating," Zimmerman said.

Bayer immediately announced it would appeal a Northern District federal jury's award of more than $80 million to a 70-year-old man whose alleged exposure to Roundup's active ingredient, glyphosate, caused his non-Hodgkin lymphoma. In re: Roundup Products Liability Litigaiton, 16-MD02741 (N.D. Cal., filed Oct. 4, 2016).

The company has maintained the verdict "has no impact on future cases and trials, as each one has its own factual and legal circumstances," despite the trial being the first of three test cases in the consolidated litigation before U.S. District Judge Vince Chhabria, according to spokesperson Charla Lord.

A separate jury finding in San Francisco County Superior Court last August awarded a dying groundskeeper $289 million, which was reduced to $78 million.

While a global settlement would likely require a few more cases to be tried to completion, Zimmerman was not so quick to dismiss the scale of Monsanto's concern on how future trials might play out given the test case before Chhabria "was structured in a way that favored the defendants."

Monsanto scored a pretrial victory when the judge split the trial into stages. The jury only heard allegations of misconduct and whether additional damages were warranted after finding the company liable for causing the plaintiff's cancer.

Proving a "plausible biological link" in the first causation phase would continue to be a steep climb, according to Stanford Law School professor David M. Studdert.

Zimmerman said Monsanto would likely appeal the evidence and expert testimony allowed into future trials. Settlement discussions would hinge largely on how higher courts rule on this issue.

Monsanto attorneys Brian Stekloff and Tammara M. Johnson, both with Wilkinson, Walsh & Eskovitz, took issue with the quality of studies and experts admitted into the trial. Chhabria was sympathetic to these concerns, referring to the opinion of many of the plaintiffs' experts as "shaky." But the judge said he was limited by 9th U.S. Circuit Court of Appeals precedent.

"If they lose those appeals and all the information admitted ends up coming in the next time as well, they're going to have to consider if this is just the world of information," Zimmerman said. "If they substantially narrow the amount of evidence, maybe they'll end up continuing to litigate in the hope that it produces defense verdicts."

Attorneys will discuss setting a new trial date at a May 22 hearing.

In the ongoing state court trial against Monsanto, plaintiffs' attorneys showed the jury a 2019 UC Berkeley study that was not presented in either of the two previous trials, indicating a 41 percent statistically significant increase in the risk of developing non-Hodgkin lymphoma when exposed to glyphosate-based weedkillers.

"It's not a hard call," said plaintiffs' expert pathologist Dennis Weisenburger on April 9 of the likelihood decades of spraying Roundup caused a Livermore couple's cancer. Pilliod v. Monsanto, JCCP004953 (Alameda Super. Ct., filed Nov. 16, 2017).

The jury was also shown the video deposition of Monsanto toxicologist William Reeves, who was pressed by plaintiffs' attorney R. Brent Wisner on internal emails discussing how to combat studies unfavorable to the company's position on the science.