If Bayer AG wants to keep total Roundup liability capped at $10 billion, it may be crucial to get a 2018 California court verdict overturned.
On Tuesday, the German chemical giant will ask the state appeals court to toss a jury conclusion that Roundup caused grounds keeper Lee Johnson’s cancer. Johnson was awarded $289 million before a judge cut the damages to $78.5 million. By comparison, the company has been reaching settlements in thousands of other cases that range from a few thousand dollars to several million per claim, people familiar with those agreements said last month.
While Bayer has reached verbal deals on many of the estimated 125,000 Roundup lawsuits in the U.S., tens of thousands remain unresolved. Legal experts say the company wants to limit payouts on those claims, and to reduce the incentive for new lawsuits, by fighting the only three cases that have gone to trial — all losses, including a $2 billion award to a California couple in 2019 that was later cut to $86.7 million by a judge.
“It’s a gamble by Bayer, but a reasonable one,” said Anna Pavlik, an attorney who provides legal and regulatory analysis for investors at United First Partners LLC in New York. “If Bayer were to settle the cases with jury verdicts now, those verdict numbers could be perceived by the lawyers in the remaining plaintiff cases as a tempting benchmark, and would likely push the outcome of the negotiations toward a higher ultimate number.”
Bayer shares rose as much as 5.4% in Frankfurt trading Tuesday, reaching the highest level in more than a month.
The company has been working to end the costly legal battle it inherited when it acquired Monsanto in 2018. Since that deal, Bayer lost those three court cases and new claims about Roundup surged, dragging down shares more than a third and wiping billions of dollars from the company’s market value.
Because there’s still a serious risk that the Johnson jury verdict is upheld, the company may be pushing to reach agreements on the global settlements before the state appeals court rules, according to Pavlik.
Bayer declined to comment on its legal strategy. But in a statement, the company said the Johnson verdict “should be reversed because the evidence at trial did not meet the legal burden required to prove causation and failure to warn claims under California law.”
A key Bayer argument is that federal regulation of Roundup preempts laws of the state, which could undermine evidence that proved so damaging at trial and dissolve tens of thousands of pending cases.
Johnson’s lawsuit is based on California law, including a claim that Roundup’s cancer risk should be disclosed on a warning label. Bayer argues that it can’t add a cancer warning or reformulate the herbicide without the approval of the U.S. Environmental Protection Agency, which says Roundup doesn’t cause cancer.
“EPA would have rejected a cancer warning had Monsanto proposed one,” Bayer said in a court filing. The agency “would not possibly have required a cancer warning for a product that it determined was not likely to be carcinogenic.”
While there’s a “strong likelihood” that Bayer’s argument will win on appeal, the company is facing liability exposure of hundreds of billions of dollars if there are more verdicts like the three it’s already faced, said Holly Froum, a legal analyst for Bloomberg Intelligence. Given timing pressure and comparable mass-tort settlements, Bayer may spend between $10 billion and $12 billion to resolve the Roundup litigation, according to Froum.
In May, the San Francisco-based appeals panel told the parties to present arguments assuming the panel agrees that Johnson’s award for future, noneconomic damages should be reduced.
According to Brent Wisner, who won Johnson’s case at trial, that move by the appeals court is “a strong suggestion” that it “is rejecting the preemption argument and is more focused on the amount of damages — not the viability of the verdict itself.”
An appeals court loss for Bayer could spark more Roundup lawsuits, just as the original jury verdict did, Wisner said.
Mike Miller, Johnson’s lawyer for Tuesday’s appeal, didn’t return a phone call or an email seeking comment.
Still, Bayer has leverage in its settlement talks, especially during the pandemic, said Thomas G. Rohback, a trial lawyer at Axinn in New York who isn’t involved in the litigation.
The Roundup lawsuits Bayer faces are filed by users who developed non-Hodgkin lymphoma. For plaintiffs who are already ill, the coronavirus crisis has only added urgency to settle with a corporation willing to finance “multiple layers of appeals” in the three verdict cases, Rohback said.
“Time is something people don’t have,” Rohback said. The pandemic has created “a good environment for pressuring plaintiffs to settle.”
The case is Johnson v. Monsanto, A155940, California Court of Appeals (San Francisco).