Bayer joins opponents in withdrawing from part of Roundup settlement

Bayer said Wednesday it agrees with opposing counsel's decision to withdraw part of a $10.9 billion settlement of the Roundup weedkiller litigation after a judge questioned the attorneys' idea to let a panel of scientists decide the question of causation.

Bayer "is in agreement with counsel representing the proposed Roundup settlement class," to withdraw a pending motion for preliminary approval of a $1.25 billion portion of the agreement to settle 100,000 lawsuits in the United States, the company said in a statement.

U.S. District Judge Vince Chhabria of San Francisco questioned several aspects of the deal in a pretrial order Monday after receiving many requests to delay a July 24 hearing date, sent by potential class members who oppose the settlement.

"To the extent the plaintiffs and Monsanto suggest that it would be no big deal to wait until the final approval stage before fully considering objections to this settlement agreement, they are wrong," he wrote.

Chhabria seemed most perplexed by a novel proposal to allow a panel of scientists, rather than a jury, to decide the question of general causation, "that is, whether and at what dose Roundup is capable of causing cancer."

"Even with the consent of both sides, it's questionable whether it would be constitutional (or otherwise lawful) to delegate the function of deciding the general causation question from judges and juries to a panel of scientists," Chhabria said.

So far, juries in three bellwether Roundup cases have reached verdicts in favor of the plaintiffs, awarding significant compensatory and punitive damages. Even if it were lawful to turn the causation question over to a panel of scientists, Chhabria said, it's unclear how it would benefit a class of Roundup users who either have cancer but have not yet sued Monsanto or have not developed cancer. In re: Roundup Products Liability Litigation, 16-MD-02741 (N.D. Cal., filed Oct. 4, 2016).

"Why would a potential class member want to replace a jury trial and the right to seek punitive damages with the process contemplated by the settlement agreement?" he asked.

Bayer's stock took a tumble Tuesday after news of Chhabria's order spread. In response, Bayer released a statement saying the withdrawal of the proposed settlement will allow the parties to more comprehensively address Chhabria's questions.

"Bayer remains strongly committed to a resolution that simultaneously addresses both the current litigation on reasonable terms and a viable solution to manage and resolve potential future litigation," Bayers' statement read.

Commenting Wednesday, professor Adam Zimmerman of Loyola Law School said the idea of using a private settlement panel in a class action like this is creative and novel. "It's building off something that DuPont did years ago in a case in which the science was similarly unclear," he said.

"DuPont had weak information about causation, and as part of the proposed litigation plan, the parties agreed that a panel would help decide the science independently and the finding of that panel could then be used in subsequent litigation or more likely a subsequent settlement that could adjudicate all these people's claims."

In the Dupont case, a group of public health scientists were allowed to assess whether or not there was a probable link between DuPont's release of chemicals into the Ohio River and a disease which spread in the surrounding community.

"What set that case's novel remedy apart from this one is it was a relatively defined universe of people bringing the claims," Zimmerman said.

Also commenting, professor David Levine of UC Hastings College of the Law in San Francisco said he was surprised plaintiffs' attorneys involved in the proposed settlement, such as Elizabeth J. Cabraser of Lieff Cabraser Heimann & Bernstein, would think the idea of replacing judge and juries with a panel of scientists to decide causation would actually work.

While asking whether an average juror is capable of correctly determining a question of causation when it involves sophisticated scientific questions such as, "Does prolonged exposure to a glyphosate-based herbicide cause cancer?" may make for "a clever little seminar paper," Levine said. "In the real world of litigation where you have the right to trial by jury, whether it's under state law or federal law, it's really hard to see how this was ever going to fly."

"There's a legitimate issue about the science and there are certainly scholars who say it's a bad idea to send this to juries because they can't understand it," Levine said. "There ought to be some way to create something like a science court to handle these things on the level of experts, but it runs smack against the right to a trial by jury."