On June 13, the U.S. Supreme Court took no action to uphold or reject a $25 million appeals court damages award linking a popular weedkiller to cancer.
The decades that Edwin Hardeman and his wife spent nurturing 56 acres of land in Sonoma County, California, included using the weed killer Roundup from 1986 to 2012, taming poison oak and overgrowth. But in February 2015, Mr. Hardeman was diagnosed with B-cell non-Hodgkin’s lymphoma, just weeks before the International Agency for Research on Cancer (IARC) exposed glyphosate, which is used in Roundup, as a probable cancer-causing ingredient.
Mr. Hardeman’s lawsuit in 2016 was among the first of the Monsanto Roundup cancer cases to be heard by a jury in California. Mr. Hardeman was awarded $25 million in damages, which in May 2021 was upheld by the 9th U.S. Circuit Court of Appeals, San Francisco.
Monsanto is a pesticide manufacturer and producer of agricultural seeds. Bayer AG (BAYGn.DE) acquired Monsanto, including the Roundup brand, in a $63 billion purchase in 2018.
Bayer had asked the U.S. Supreme Court to review the appeals court decision because, according to their lawyers, the Environmental Protection Agency had approved Roundup’s product label, precluding Mr. Hardeman from suing under California law.
Bayer was trying to avoid billions of dollars in additional payouts to plaintiffs claiming they became ill after using Roundup. The Supreme Court snub leaves thousands of similar cases from proceeding immediately, although the nine justices may be inclined to hear the case in the future.
To date, Roundup users have been awarded tens of millions of dollars in three trials that Bayer lost, although Bayer has also won three other trials. Bayer has resolved 107,000 cases out of an estimated 138,000. In 2021, the company set aside even more funds after paying out a substantial portion of the $11.6 billion already allocated to litigation and settlement costs. Despite a settlement deal in 2020, Bayer did not sway the Court for any separate agreement about future cases. The Supreme Court’s silence exposes Bayer to potentially $4.5 billion in litigation costs associated with other Roundup claims.
Bayer has argued that sound science is on their side, and the U.S. and other global regulators have repeatedly cleared the product for distribution into the market. Bayer claims the EPA nixed a printed cancer warning before approving the product label, and the company should not be subjected to additional litigation. In another lawsuit, the company protested punitive damages on the same premise: the government had approved the Roundup label.
Although the former business-friendly Republican administration under Donald Trump essentially encouraged the Court to support Bayer, the Biden administration has urged justices to reject Bayer’s petition. However, the Supreme Court is not bound to follow the executive branch’s advice.
Credit Suisse analysts do not foresee the Supreme Court hearing the case, due in part to the weigh-in by the Biden administration and because the justices typically accept fewer than one percent of cases brought to them.
With its appeal in limbo, Bayer has pledged to contain additional risk by setting aside money and allocating it to claimants who meet specific criteria, including waiving attorney representation. Bayer has also vowed to replace glyphosate in Roundup and its other weedkillers that they market to home gardeners in the United States.
Long-term exposure to cancer-causing substances will require extensive medical records. If you are a lawyer with clients who may be owed damages from roundup or other dangerous toxins, utilize our medical record-gathering services for quick and effective assistance.