Bayer agrees to settle 100K claims for $9.6B

Bayer AG agreed Wednesday to pay $9.6 billion to settle nearly 100,000 claims from consumers alleging exposure to its glyphosate-based weedkillers caused their cancer.

The deal covers roughly three-quarters of all Roundup lawsuits. Company CEO Werner Baumann said he expects to resolve the remainder of the cases "in the next month to come."

"There's a general feeling of relief we can exit the phase of uncertainty," he said. "Unfortunately, an awful lot of money was spent on a product that is perfectly well-regulated, which can make you angry and in a way, we were driven by the exposure to the U.S. legal system."

Bayer inherited the legal dispute when it bought Monsanto for $63 billion in 2018. The company will continue to sell glyphosate-based herbicides without warnings or labels. The settlements were individually negotiated with more than 500 law firms that filed Roundup cases, some of which have yet to accept the offers.

The agreement also sets aside $1.25 billion for the creation of an independent class science panel, which will determine whether glyphosate can cause non-Hodgkin lymphoma, to address how future claims will be litigated. Both sides would be bound by the decision, taking the question on general causation away from juries.

If the panel concludes there is no link between glyphosate-based herbicides and cancer, class members would be barred from claiming otherwise in future trials. They would not be permitted to proceed with Roundup claims in the meantime, which the company expects to take several years, and cannot seek punitive damages.

Class members include all consumers exposed to glyphosate-based weedkillers regardless of whether they have cancer, according to Bayer general counsel William Dodero. Those who choose to participate in the purported class will have expenses related to monitoring their health paid for and will be eligible for assistance payments if they develop non-Hodgkin lymphoma.

They must, however, opt out if they do not want to be constrained by the panel's decision on general causation or seek punitive damages.

Robin Greenwald, an attorney at the first law firm to sue Monsanto in 2015, slammed the proposed class settlement for how it treats future claims.

"Three juries have found that general causation was met," the Weitz & Luxenberg attorney said. "Why do you need a science panel?"

While praising the payout for her clients, most of whom would have to wait years for trial, Greenwald argued it's unnecessary to allow the question to be decided by scientists and that it was appropriately put before juries.

Seven state and federal judges have allowed plaintiffs' general causation experts to testify. Greenwald noted all the jury verdicts found that exposure to Roundup caused plaintiffs' cancers and they all awarded punitive damages.

Responding to why class members would opt into what might be an unfavorable deal compared to awards in jury trials, UC Hastings School of Law professor David Levine predicted several plaintiffs, especially those who don't have cancer, will want to "buy the certainty of being a part of class."

"While we've seen verdicts go one way, it doesn't mean that all will," he said. "Instead, you could just get a check."

Bayer has not filed the settlement for approval before Judge Vince Chhabria of the Northern District of California, who oversees the consolidated litigation in San Francisco. In re: Roundup Products Liability Litigation, 16-MD-02741 (N.D. Cal., filed Oct. 4, 2016).

Several details have not been made public. Among them is how members of the independent class science panel would be chosen. Scientists who participated in any Roundup litigation are not eligible, according to Dodero.

Greenwald argued the disqualification of experts who testified is especially unfair since plaintiffs' attorneys who won jury trials had the best scientists from all over the world testify. Christopher Portier, who she said is recognized as among the most well-respected toxicologists globally and has led the National Institute on Environmental Health Sciences, will not be able to serve on the panel, she said.

"Our experts were world renown, and all of them opined that this evidence is strong," she said.

Baumann repeatedly emphasized Bayer's confidence the panel would conclude there is no causal link between exposure to glyphosate-based herbicides and non-Hodgkin lymphoma. "We believe firmly in the extensive body of the science behind glyphosate and the availability of glyphosate-based products," he said.

Dodero echoed those sentiments, explaining that the settlement is meant to "return this to the science."

While Baumann characterized the settlement as assuring certainty in disposing of the litigation, there might be no end to future claims if the panel does not agree with the company.

Greenwald and Levine both noted how the deal does not force Bayer to change any of its labeling or warning practices.

"How do you cap the amount you will put in future programs when you're not changing any of your behavior?" Greenwald said.

Plaintiffs' firm Baum Hedlund Aristei & Goldman, which represented Dewayne Johnson in the first Roundup case to go to trial, said it's pleased with the settlement.

Consumers first sued Monsanto in 2015. Since then, 125,000 plaintiffs have sued. Three juries have awarded nearly $200 million to those who have gone to trial. Wednesday's settlement will not cover those cases, which are on appeal.