Despite trial losses, Bayer may find success at the US Supreme Court

Bayer AG has adamantly maintained the Environmental Protection Agency's position that the company's Roundup weed killer does not cause cancer should bar more than 18,000 lawsuits over accusations alleging the opposite.

Three trial judges have rejected Monsanto's defense, but a more business-friendly U.S. Supreme Court may be "more receptive" to the argument, according to legal experts.

Despite a prior ruling that federal directives do not preclude plaintiffs from pursuing state law claims, University of Florida Law Professor Lars Noah said the high court has "swung back," giving Bayer "good reason to feel pretty confident that they can beat the rap."

The EPA issued a statement last week to Roundup registrants that it found the herbicide's active ingredient, glyphosate, to be safe. It also clarified that the agency will no longer approve labels claiming the chemical causes cancer because it is a "false claim" and "misinforms the public about the risks they are facing."

The unprompted statement sets the stage for a potentially precedent-setting ruling if the high court takes the case for review on "this tremendous tension between greater intrusiveness by private litigation on judgments about federally licensed products and activities," Noah said.

Judges in the three Roundup trials dismissed Monsanto's pre-emption defense, citing a 2005 U.S. Supreme Court ruling that the EPA's approval does not preclude liability.

Defense attorneys have consistently argued that various trial judges should not have permitted claims that Monsanto should have included a warning label on weed killers containing glyphosate since the EPA does not require one and would have rejected a request to add it had the company asked.

U.S. District Judge Vince Chhabria of San Francisco, who oversees the consolidated lawsuits in federal court, disagreed. Monsanto's position is "difficult -- if not impossible -- to square with" high court precedent that state claims are not barred by federal statutes, Chhabria wrote. Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005).

Loyola School of Law Professor Adam Zimmerman said the decision "provides a lot of breathing space for state law to supplement the way we regulate the safety of products."

Plaintiffs' attorney R. Brent Wisner, who most recently represented Alva and Alberta Pilliod in the Alameda County Superior Court trial, called Bayer's interpretation of federal pre-emption a "Hail Mary" that has been "systematically rejected" by various courts. Pilliod v. Monsanto Co., RG17862702 (Alameda Super. Ct., filed Nov. 16, 2017).

But Noah said Bayer's defense is "fairly powerful, not because of existing decisional law, but because of the drift in the way the U.S. Supreme Court has been dealing with pre-emption defense." He called the Bates decision, which is the most relevant to the Roundup litigation, an "outlier."

According to the public health law professor, the high court has consistently defended pre-emption since Bates, indicating a desire to curb lawsuits in which companies are sued because of opinions from federal regulatory agencies.

Bayer has argued on appeal that Bates is no longer the controlling ruling on the matter.

"During [then-President George W.] Bush's administration, a bunch of federal agencies started announcing 'We think our rules pre-empt tort claims,'" he said.

Noah added that the EPA is trying to tell the courts its decisions "need to be taken seriously."

Ruling on a similar case in which Merck & Co. argued it could not have changed the warning label on its allegedly hazardous drug because the Food and Drug Administration would not have let it, the high court reversed an appellate court and ruled that the company is entitled to a pre-emption defense, sending the lawsuit back to lower courts.

Although that decision is not directly applicable to the Roundup litigation, according to Noah, it bodes well for Monsanto's defense if its case is accepted for review.

A Bayer spokesperson did not return requests for comment.