As Bayer confronts mounting Roundup losses, all eyes on Philadelphia
trial
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[December 04, 2023]
By Brendan Pierson
(Reuters) - With Bayer facing investor pressure to resolve thousands of
lawsuits over its Roundup weedkiller after being hit with $2 billion in
verdicts in recent weeks, all eyes are on a trial wrapping up in
Philadelphia.
Plaintiffs have won the last four trials over their claims that the
product causes cancer, each time securing a larger verdict. Those losses
ended a nine-trial winning streak for Bayer, shattering investor and
company hopes that the worst of the Roundup litigation was over.
In the ongoing case, which kicked off Nov. 6 in the Philadelphia Court
of Common Pleas, Pennsylvania resident Kelly Martel claims she developed
non-Hodgkin lymphoma from using Roundup. Her case will help test whether
plaintiffs' recent victories were an aberration, or the payoff from
favorable court rulings and a shift in plaintiffs' strategy.
Interviews with lawyers on both sides, and a review of trial
transcripts, suggest several factors could explain the difference in
outcomes. Those include judges' rulings allowing jurors to hear
testimony about regulatory issues related to Roundup, which Bayer has
called misleading, and a new emphasis by plaintiffs lawyers on chemicals
in the product other than its active ingredient, glyphosate.
Lawyers for Martel did not immediately respond to requests for comment.
Bayer maintains that Roundup is safe and said in a statement that it
would "continue to try Roundup cases as the science is strongly on our
side."
The German pharmaceutical conglomerate acquired Roundup as part of its
$63 billion purchase of U.S. agrochemical giant Monsanto in 2018, amid
opposition from some of its own shareholders.
In 2020, the company agreed to pay up to $9.6 billion to settle
then-existing Roundup lawsuits, but was not able to resolve claims that
would be filed in the future. It is currently facing about 50,000
lawsuits.
CHANGE IN FORTUNE
Bayer's trial fortunes changed abruptly when plaintiffs began winning in
October, most recently securing a $1.56 billion verdict for three
people. Bayer said it will appeal the verdicts on numerous grounds.
Every trial depends on specific facts in the case, and juries, which
deliberate in secret, are inherently unpredictable. Both sides, however,
point to factors they say are behind the shift.
In court filings and public statements, Bayer has attributed its recent
losses to judges allowing juries to hear what it considers to be
improper evidence.
Specifically, the company has said, jurors were allowed to hear of a
ruling last year by a federal appeals court ordering the U.S.
Environmental Protection Agency (EPA) to reconsider its 2020 finding
that glyphosate probably did not cause cancer.
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Logo and flags of Bayer AG are pictured outside a plant of the
German pharmaceutical and chemical maker in Wuppertal, Germany
August 9, 2019. REUTERS/Wolfgang Rattay/File Photo
Bayer says plaintiffs' lawyers were
allowed to imply that the ruling meant glyphosate was unsafe, when
the court only found that the agency had not followed required
procedure. The EPA still states that glyphosate is unlikely to be
capable of causing cancer.
The company also said plaintiffs' lawyers in recent trials used the
failure of some European Union member states to re-approve
glyphosate to suggest that its approval in Europe would soon expire.
In fact, unanimity was not required for European regulators to
re-approve the product, which they did last month.
Plaintiffs' lawyers reject the notion that the evidence about
regulators explains their wins.
"That's just not true," Tom Kline, who along with co-counsel Jason
Itkin represented Ernest Caranci, the second plaintiff to prevail at
trial in October. He and others say that new studies in the last
year supporting a cancer link are one reason for the wins, although
those studies were used in some cases Bayer won as well.
The World Health Organization's cancer research agency concluded in
2015 that glyphosate was likely capable of causing cancer, though it
did not reach a conclusion about whether it posed a risk in real
world use.
Bart Rankin, a lawyer for plaintiffs in the $1.56 billion verdict,
pointed to a more concrete shift in strategy.
In recent trials, plaintiffs have placed greater emphasis on the
theory that known toxins in Roundup other than glyphosate, including
formaldehyde, arsenic and others, enhanced its cancer-causing
potential. Bayer witnesses and lawyers have said these substances
are present in only trace amounts.
While plaintiffs' lawyers in earlier trials mentioned other
chemicals, transcripts of recent closing arguments suggest they have
become more prominent. Rankin devoted a section of his closing
argument to what he called the "cocktail" of harmful chemicals in
Roundup.
"Ladies and gentlemen, they are carcinogens, and when you stack them
one on top of the other, it makes an impact," he told the jury.
Bayer said in early November it would remain very selective when
considering settlements of Roundup cases and reassured investors in
a call in late November that it has reserves to deal with the
litigation. The company has set aside about $6.5 billion for that
purpose.
Nonetheless, if plaintiffs prove able to replicate recent wins, it
will increase pressure on Bayer, which faces other significant
setbacks, including stopping a late-stage study of what it hoped
would be a blockbuster anti-clotting drug.
More Roundup trials are expected in 2024. Martel's case could go to
jurors later on Monday.
(Reporting By Brendan Pierson in New York, Editing by Alexia
Garamfalvi and Bill Berkrot)
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