U.S. District Judge Vince Chhabria described a plan to create a class action for future litigants as problematic in a court filing Monday and said he was “tentatively inclined” to reject it. He set a July 24 hearing date. Shares of Bayer, which inherited the weedkiller through its purchase of
Bayer’s plan for the future class would establish a scientific panel to determine whether Roundup’s active ingredient causes cancer, while still potentially allowing users of the herbicide to press claims. Many lawyers not participating in the settlement say the plan is designed to protect Bayer.
The San Francisco-based judge’s misgivings won’t derail the majority of the nearly
“We appreciate the judge’s order raising his preliminary concerns with the proposed class settlement, which we take seriously and will address” at the hearing,
About 30,000 claims contending Roundup caused non-Hodgkin’s lymphoma are left unsettled. Some
The judge’s filing reinforces concerns from investors that Bayer’s Roundup deal isn’t enough to get it beyond the mountain of litigation,
Bayer said late Monday the class proposal is still on the table. The company -- whose shares are down about 9% since it announced the settlement on June 25 -- insists that Roundup is safe and has appealed three U.S. jury verdicts against it.
“Thankfully, Judge Chhabria has seen the ruthless plan as an outrageous attempt to deprive every future victim of Monsanto’s killer Roundup of their right to fair and full compensation and to a jury trial,” Tom Kline and
The future class was the brainchild of Bayers’ lawyers and some plaintiffs’ attorneys , including San Francisco-based
Some of Cabraser’s colleagues, such as New York-based lawyer
Three California juries ordered Bayer to pay billions of dollars in combined damages based on findings that glyphosate caused the plaintiffs’ non-Hodgkin’s lymphomas, a specific cancer tied to glyphosate. Those awards ultimately were reduced to about $190 million.
The science panel is designed to have independent experts make the decision on the chemical’s toxicity, Dodero said. “They will be selected by the parties by mutual agreement, and if there is not mutual agreement each party will select two; the four will select the remaining fifth,” he said last month. “They will be objective and a blue-ribbon panel to fully assess the evidence.”
If the panel finds glyphosate is not a carcinogen, then class members would be barred from recovering from their cases, according to court filings. Conversely, if the panel says the chemical can cause cancer, future Roundup users could proceed with their suits.
That’s one of the sticking points with the class-action mechanism, Chhabria said.
“It’s questionable whether it would be constitutional (or otherwise lawful) to delegate the function of deciding the general causation question (that is, whether and at what dose Roundup is capable of causing cancer) from judges and juries to a panel of scientists,” he said.
He also questioned whether there is an incentive to join the class for future Roundup claimants, who would have five months after the class is approved to opt out of it. “Why would a potential class member want to replace a jury trial and the right to seek punitive damages with the process contemplated by the settlement agreement?” the judge asked.
Chhabria also worried that the science on glyphosate’s cancer-causing properties is still evolving and questioned whether it would pass legal muster to have claimants bound by a lack of toxicity finding that is supplanted by a new study.
He also said the proposal has procedural drawbacks in making sure all potential future Roundup claimants have proper notice that they must decide within five months whether to become part of the class. If they don’t opt out within that time period, they are automatically covered by the plan.
“Given the diffuse, contingent, and indeterminate nature of the proposed class, it seems unlikely that most class members would have an opportunity to consider in a meaningful way (if at all) whether it is in their best interest to join the class,” he said.
The consolidated case is In re: Roundup Products Liability Litigation, MDL 2741, U.S. District Court, Northern District of California (San Francisco).
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