|
 Some legal experts believe Bayer will have a tough time convincing
appellate courts to throw out verdicts and lawsuits on those
grounds. Bayer has a better shot if a business-friendly U.S. Supreme
Court takes up the case, experts said. But that could take years.
Bayer has come under intensifying pressure after a third consecutive
U.S. jury on Monday found Roundup to be carcinogenic, awarding more
than $2 billion to a couple who used the chemical on their property
- the largest verdict in the glyphosate litigation to date.
Bayer, which inherited the Roundup litigation with its $63 billion
acquisition of Monsanto last year, faces lawsuits by more than
13,400 plaintiffs nationwide, alleging the product causes cancer.
The Germany-based company's shares have been hammered since the
first Roundup cancer verdict against it last August, wiping out some
40 billion euros ($44.76 billion) in market value and leaving Bayer
worth less than the price it paid for Monsanto.
Bayer denies that Roundup causes cancer, saying decades of studies
have shown glyphosate and the weed killer to be safe.
On Wednesday, the company said it will argue that the lawsuits,
which are brought under state law, conflict with guidance from a
federal agency, the U.S. Environmental Protection Agency.
On April 30, the EPA reaffirmed prior guidance saying that
glyphosate is not a carcinogen and not a risk to public health when
used in accordance with its current label..
Citing the EPA decision, Bayer has repeatedly rebuked plaintiffs'
calls to add a cancer warning to Roundup, saying the agency would
reject that change.
Under the legal doctrine of preemption, state law claims are barred
if they conflict with federal law.
"We have very strong arguments that the claims here are preempted
... and the recent EPA registration decision is an important aspect
of that defense," William Hoffman, one of Bayer's lawyers, said
during a call with reporters on Wednesday. Hoffman said the argument
applied to all U.S. Roundup lawsuits.
Preemption is generally regarded as a "silver bullet defense"
because it stops claims across the board, said Adam Zimmerman, a law
professor at Loyola Law School in Los Angeles.
But Zimmerman and three other legal experts agreed that Bayer faces
a big hurdle convincing appeals courts that the EPA determination on
glyphosate shields it from state law claims.
They cited a 2005 U.S. Supreme Court ruling that the EPA's approval
of a product does not necessarily bar state law claims. The ruling,
Bates v Dow Agrosciences, gives broad leeway to juries to decide if
such claims should proceed, they said.
[to top of second column] |
Judges in the three Roundup cases that have gone to trial against
Monsanto all rejected the company's preemption argument, citing this
ruling.
"In light of the Bates decision, it's going to be an uphill battle
for the company to win on preemption on appeal," Zimmerman said.
Bayer also said it will argue on appeal that trial courts improperly
admitted evidence that was not backed up by science. But legal
experts said appellate courts generally defer to lower court
evidentiary rulings.
'SORE THUMB'
Lars Noah, a law professor at the University of Florida, said
Bayer's chances of success would increase significantly if the
Supreme Court takes up the Roundup appeals.
The high court only accepts around 70 cases each year, but a
business-friendly majority on the court could be inclined to hear
the dispute, said Alexandra Lahav, a law professor at the University
of Connecticut.
Since 2005, the high court has decided at least three preemption
cases in favor of companies, none of which involved the EPA.
The Supreme Court will soon rule in another case that rests on
whether a U.S. Food and Drug Administration approval preempts tort
claims.
In that case, plaintiffs sued Merck & Co over the company's alleged
failure to warn of the risk of serious bone fractures associated
with its osteoporosis drug Fosamax.
Merck, which denies the allegations, argued the lawsuits should be
preempted because the FDA did not require an additional fracture
warning in the drug's prescribing information. During a January
hearing, the Justices appeared to side with the company.
Bayer in a statement on Thursday said it does not believe the 2005
Bates ruling posed a barrier for the appellate courts due to other
Supreme Court rulings since then.
Noah agreed that the Court has more recently signaled its appetite
to limit lawsuits that contradict opinions by experts at regulatory
agencies.
"The Bates decision by now sticks out like a sore thumb," Noah said.
"Bayer has more than enough ammunition in recent Supreme Court cases
to show the trial court judges got it wrong."
(Reporting by Tina Bellon in New York; Editing by Noeleen Walder and
Bill Berkrot)
[© 2019 Thomson Reuters. All rights
reserved.] Copyright 2019 Reuters. All rights reserved. This material may not be published,
broadcast, rewritten or redistributed.
Thompson Reuters is solely responsible for this content. |
