Roundup suits put Bayer in legal bind

Bottles of Roundup are seen for sale June 19, 2018, at a retail store in Glendale, Calif. Agribusiness giant Bayer faces tens of thousands of lawsuits that allege its juggernaut weedkiller, Roundup, causes cancer. Robyn Beck/AFP/Getty Images/TNS

ST. LOUIS — Agribusiness giant Bayer said it will reassess its legal options in tens of thousands of lawsuits that allege its juggernaut weedkiller, Roundup, causes cancer — a move that could ripple through courtrooms in the St. Louis region, where many of the cases are filed.

The St. Louis-based firm OnderLaw is handling 24,000 outstanding cases, the vast majority of those already filed but not yet settled. Almost all are in St. Louis-area courts, thanks to Bayer’s presence in the region. One is set to reach trial in October in Jefferson County, Mo., with more slated for the months to follow.

“We’re hopeful that as we approach the court date, Bayer will exercise good judgment and resolve these cases for the people whose lives they’ve destroyed,” said Amanda Christmann, the communications director for OnderLaw.

Bayer announced the potential pivot last week, after a federal court ruling in California rejected a $2 billion proposal for future Roundup lawsuits to move forward in unison as class-action cases. Not a day later, Bayer outlined several possible responses to the ruling, from pulling Roundup off retail shelves to rewriting product labels to removing glyphosate, the chemical in question, from the Roundup formula.

But the company’s announced reassessment of its unsettled cases signals fresh uncertainty about how the existing lawsuits might play out — whether in court, or in outside mediation.

“We continue to be open to settlement on appropriate terms, but as we go forward, we’re also going to be reassessing whether settlements remain in the company’s best interest,” Bayer said in a statement last week.

The German conglomerate acquired Monsanto, the plant science company that developed Roundup, in 2018.

Bayer has faced about 125,000 nationwide suits surrounding Roundup’s alleged ties to cancer, cases Bayer sought to settle with a commitment of $9.6 billion, announced last June. A year later, about 96,000 of those cases have been resolved — but that leaves roughly 30,000 unsettled.

The California ruling only addressed future lawsuits, and has no direct effect on Roundup cases already filed but not yet resolved.

Outside experts said it’s hard to tell if Bayer’s statement has changed or will change the trajectory of the unsettled cases.

“I don’t know what we can really read into those words, in part because we know so little about what the existing settlements do,” said Adam Zimmerman, a law professor at Loyola Marymount University with a focus on complex litigation. “I don’t know what (Bayer will do) except try to settle the cases they think are strong cases and litigate the ones they think are weak.”

He wondered if Bayer could ultimately create its own kind of stand-alone system to pay out claims. For example, he said companies like Chrysler have devised their own compensation funds to address past liability issues, with automatic payments given to people matching certain eligibility requirements. Zimmerman noted that BP also established a similar fund after the 2010 Deepwater Horizon oil spill in the Gulf of Mexico, brokered by Kenneth Feinberg — a prominent lawyer appointed by a U.S. court to handle mediation in the Roundup cases.

Such an arrangement, Zimmerman said, could streamline the legal process and “give the company some certainty and predictability.”

The nature and sheer complexity of the caseload — featuring a product widely used over decades, whose safety is endorsed by some regulators and questioned by others — has captured the interest of legal experts spanning the country, who say the company doesn’t have simple options.

“There are no easy answers,” said Zimmerman. “It’s so hard to figure out how to resolve it. It almost exposes a gap in the system of legal tools we have.”

“What’s interesting about it,” added Elizabeth Burch, a professor at the University of Georgia’s School of Law, “is there really is no way for them to end these lawsuits in a tidy way.”

And the company’s legal risk also continues to grow, with nothing yet in place to stem possible future lawsuits looking to join an already busy pipeline.

“They’re not taking their product off the market. Nothing has really changed, and that’s why they’re concerned,” said Burch. “They’re just continuing to prime the pump.”

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