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
While Bayer has reached verbal deals on many of the estimated 125,000 Roundup lawsuits in the U.S., tens of thousands remain
“It’s a gamble by Bayer, but a reasonable one,” said
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
“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
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.
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
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.”
(Updates with Bayer shares in fifth paragraph, analyst comment in 12th)
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