Germany-based pharmaceutical company Bayer AG has prevailed for the first time in a California court over allegations that its Roundup weed killer causes cancer, ending a yearslong run of courtroom losses in the state that have cost the company billions of dollars.
Background of Roundup Cancer Lawsuits Against Bayer
Bayer acquired Roundup and its active ingredient glyphosate through its $63 billion purchase of Monsanto in 2018. Since then, it has been mired in litigation alleging the herbicide causes non-Hodgkin’s lymphoma and other types of cancer.
Over 50,000 plaintiffs have filed lawsuits against Bayer over Roundup. The company has prevailed in only a handful while losing most others that have gone to trial, resulting in massive damages awards against the firm.
String of Major Trial Losses for Bayer
Bayer suffered major courtroom losses in each of the initial three Roundup suits that went to trial in California state court, including:
- A record $2 billion verdict in favor of a couple in 2019
- $55 million awarded to a school groundskeeper with cancer in 2018
- $289 million granted to a man who sprayed Roundup as part of his landscaping business in 2018
The combined verdict value from those three trials was $2.4 billion. While the damage amounts were later reduced on appeal, the fundamental jury determinations that Roundup caused the plaintiffs’ cancers remained untouched.
Bayer has lost about 70% of the Roundup suits that have gone to trial so far, typically facing 8-figure payouts whenever it loses. Its total losses are estimated to exceed $2.4 billion when previous and ongoing appeals are finalized.
Bayer Prevails in California Bellwether Trial
This past week, however, a California jury ruled in favor of Bayer in a bellwether trial involving allegations that Roundup use caused a child’s cancer.
Bellwether trials are used to test the strength of thousands of similar claims consolidated in multidistrict litigation (MDL). Their outcomes influence whether parties decide to settle or continue fighting claims in court.
Key Details on California Trial Verdict
- The lawsuit was brought by Ezra Clark, who was diagnosed with Burkitt’s lymphoma at age 4
- His mother sprayed Roundup weed killer in their yard while she was pregnant with Ezra and also after his birth
- Bayer acknowledged Roundup’s active ingredient glyphosate can cause cancer but argued it was not responsible for Ezra’s illness
- After 8 hours of deliberation, jurors unanimously determined Roundup was not a “substantial factor” in causing Ezra’s cancer
Why Jury Decided For Bayer
Legal experts attribute Bayer’s victory to perceived weaknesses surrounding the plaintiff’s medical causation arguments combined with evidentiary rulings limiting the number of adverse company documents the jury saw.
Plaintiffs face a significant burden establishing that exposure to a certain product more likely than not caused their specific cancer. According to defense lawyers, the Clark case had deficiencies in proving Roundup exposures occurred at a key period and that such exposures were responsible for triggering Ezra’s lymphoma.
Additionally, Bayer succeeded on pretrial motions to exclude corporate emails, memos, and studies demonstrating the company’s historical knowledge of Roundup’s carcinogenicity. As a result, jurors did not see some of the most damning Monsanto documents that substantially influenced verdicts against Bayer in prior trials.
Impact on Broader Roundup Litigation
The California victory gives Bayer momentum as it works toward resolving tens of thousands of remaining cancer claims through settlements. It also may positively affect ongoing settlement negotiations.
Potential Boost to Bayer’s Settlement Leverage
|Before Bellwether Trial
|After Bellwether Trial Victory
|Previously lost 3 of 4 trials, including 3 straight losses in California with massive verdicts against it
|Can now point to a jury that reviewed evidence and found Roundup did not cause a child’s cancer
|Struggling with resolving litigation after plaintiffs balked at initial $4.5B – $10B settlement offers
|Strengthened argument that Roundup cancer verdicts are anything but guaranteed, so settlements should accordingly be discounted
While losing a bellwether would have been disastrous, winning doesn’t guarantee smooth sailing ahead. Tens of thousands of cases remain, and it just takes one substantial plaintiff’s victory to shift leverage back in the plaintiffs’ favor. But for now, Bayer has momentum it desperately needed.
Most legal experts think Bayer will ultimately pay between $5 billion to $15 billion to resolve all Roundup suits – down from initial estimates approaching $20 billion. But the final price tag remains fluid and won’t be known for years absent a global settlement.
What to Expect in 2024 and Beyond
Bayer still faces five more federal bellwether trials in 2023 plus California appeals seeking to reinstate the initial multibillion-dollar judgments against it. So litigation risks have not been eliminated.
However, in 2024 the focus will turn to pending claims brought on behalf of users who sprayed Roundup and later contracted non-Hodgkin’s lymphoma. Over 90% of current plaintiffs allege they developed NHL from Roundup exposures, so how Bayer fares in those trials will hugely influence resolution of the litigation.
While Bayer would certainly welcome more trial victories like that secured in California, most of the leverage in settlement negotiations still rests with plaintiffs and their attorneys. That likely won’t change for several years absent a complete litigation armistice. But the California verdict does offer the company a glimmer of hope after years of demoralizing courtroom losses.
Elusive Search for Global Settlement Continues
Bayer has proposed settling the mass tort litigation for $4.5 billion to $10 billion. However, meetings with lawyers for at least 44,000 plaintiffs ended without resolution earlier this year.
A key dispute is whether potential claimants who have yet to sue could receive lump-sum payments foreclosing future litigation. Bayer insists on such broad litigation peace to prevent continuing waves of new lawsuits. But many veterans of asbestos and tobacco litigation – which still spawn claims today despite mass settlements decades ago – believe globally settling the litigation is unrealistic.
That leaves Bayer with no choice but to continue the arduous process of resolving cases through verdicts and piecemeal settlements while it simultaneously seeks areas of compromise for broader deals. How much the California victory aids that process remains to be seen.
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