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 More than 18,400 plaintiffs claim Roundup causes a type of cancer
called non-Hodgkin's lymphoma.
Bayer to date has lost three U.S. jury trials in the Roundup
litigation. The company is appealing the decisions, saying Roundup
and its active ingredient glyphosate are not carcinogenic and safe
for human use.
On July 30, Bayer said it is "constructively engaging" in talks led
by mediator Ken Feinberg. Bayer's chief executive said he would only
consider a "financially reasonable" settlement if the company can
end all litigation.
Feinberg said mediation was still in the early stages and
compensation had not been discussed.
Bayer declined to comment, citing confidentiality agreements in the
mediation. Plaintiffs lawyers did not respond to requests for
comment.
Legal experts outlined several obstacles the parties may face on the
path towards settlement.
WHY IS THE ROUNDUP LITIGATION DIFFERENT FROM OTHER PRODUCT CASES?
Settlements involving drugs, medical devices or consumer goods often
result in the addition of a warning label, a recall or the outright
discontinuance of a product. Those steps generally close the door to
future lawsuits, making settlement costs and risks predictable.
Bayer has never publicly considered pulling Roundup off the market.
The company in June announced a $5.6 million investment to research
and develop a glyphosate alternative.
Bayer unit Monsanto began selling Roundup in 1974 and while the
formulation is no longer patent-protected, Roundup remains widely
available today. Bayer has repeatedly said Roundup is safe and
important to farmers who use the herbicide in combination with the
company's genetically modified seeds
Non-Hodgkin's lymphoma on average can take up to 10 years to emerge,
increasing the likelihood of claims being filed after the litigation
has settled. Product liability settlements generally include a
cut-off date for future claimants and need to be properly funded for
a court to approve the agreement.
As long as the product continues to be sold without changes to the
label, plaintiffs may continue to file lawsuits, said Elizabeth
Burch, a law professor at the University of Georgia.
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COULD BAYER ADD A CANCER WARNING?
Plaintiffs lawyers, who claim the company manipulated the science,
told Reuters they would insist on a cancer warning label as part of
any Roundup settlement.
Such a warning has been rejected by the U.S. Environmental
Protection Agency, which regulates pesticides and repeatedly has
found glyphosate to be safe.
The agency in an Aug. 7 letter said any glyphosate cancer warning
constitutes "a false and misleading statement," and ordered
California, the only U.S. state requiring such a warning, to remove
the label.
David Noll, a professor at Rutgers Law School, said adding a cancer
warning over a regulator's explicit opposition presented unchartered
legal territory.
HOW COULD BAYER SETTLE THE ROUNDUP LITIGATION?
To settle product liability litigation, companies generally set up a
fund and the parties define criteria that current and future
claimants must fulfill to receive compensation.
In the Roundup litigation, claimants could be divided into different
groups depending on the frequency of their Roundup use and disease
severity and length.
But Adam Zimmerman, a law professor at Loyola Law School, said
defining those groups is complicated by the lack of a signature
disease associated with Roundup, making it difficult to predict
Bayer's liability.
For example, in asbestos litigation, mesothelioma, a rare tissue
cancer, was recognized as a signature disease caused by exposure to
asbestos fibers.
Doctors recognize several risk factors leading to non-Hodgkin's
lymphoma, but the disease is largely considered to have no known
cause. Around 74,000 people in the United States are expected to be
diagnosed with the disease in 2019, according to the American Cancer
Society.
Settling claims might not preclude future lawsuits if the fund runs
out of money. In the Agent Orange litigation, Vietnam War veterans
were allowed to sue chemical companies decades after a settlement
was reached because the compensation fund was depleted by the time
they developed their diseases.
(Reporting by Tina Bellon in New York; Editing by Noeleen Walder,
Anna Driver and Lisa Shumaker)
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