The Wall Street Journal editorial board calls it “a shakedown for the history books.” They are referring to the recent settlement by Bayer to pay up to $10.9 billion to settle with plaintiff attorneys who claim its weedkiller Roundup causes cancer.
Bayer has agreed to pay as much as $9.6 billion to settle some 125,000 cases and unfiled claims. In exchange, 25 law firms say they don’t intend to take on more litigation. Bayer will set aside another $1.25 billion for a future class-action settlement brought by a different set of trial lawyers. Bayer and those attorneys agreed to establish a five-member panel of scientists to consider whether glyphosate, the active ingredient in Roundup, causes non-Hodgkin’s lymphoma.
Why would Bayer agree to this settlement?
The science isn’t settled. There is no proof that glyphosate causes cancer. Last year, the Environmental Protection Agency (EPA), certainly no friend of corporations, said it wouldn’t approve product labels claiming the weedkiller causes cancer because that would “constitute a false and misleading statement.” Federal Judge William Shubb issued a permanent injunction preventing California from requiring a cancer warning on the herbicide. He noted that nearly every regulator that has looked at the evidence “has found that there was no or insufficient evidence that glyphosate causes cancer.”
The only exception to this pattern is the World Health Organization’s International Agency for Research on Cancer. The WHO has been in the news a lot lately due to its failures to contain the corona virus pandemic and their cozy relationship with China. The Trump administration just announced their intent to withdraw from participation in WHO because of their incompetence and political bias. According to the WSJ, the WHO believes everything from sipping hot cocoa to talking on a cell phone might give you cancer. It determined glyphosate is “probably carcinogenic” only after writing off evidence to the contrary, Reuters reported. One of the advisers who helped conduct the group’s glyphosate analysis concurrently received pay from trial lawyers. Naturally, he has since testified in the Roundup litigation.
Bayer has lost some spectacular trials so far. In the first Roundup case heard, the San Francisco Superior Court limited Bayer from discussing the EPA’s conclusions, but allowed the plaintiff attorneys to wax on about findings from the International Agency for Research on Cancer. In the second case, the plaintiff’s attorney ignored the court’s limits on admissible evidence, a violation that was “intentional and committed in bad faith,” Judge Vince Chhabria determined later. In a third case, an Alameda County Superior Court judge prevented jurors from hearing about a comprehensive new EPA review in which federal regulators concluded Roundup doesn’t cause cancer and poses no danger to health when used as directed.
These three cases alone cost Bayer more than $2.4 billion in jury penalties. Judges have since reduced this to $190 million but Bayer is still appealing. But their future is not bright, given that they face some 52,000 plaintiffs as of April.
The Bayer settlement is based on gambling that the panel will reach the same conclusion as regulators in the U.S., the European Union, Australia, Japan, and elsewhere – that glyphosate isn’t a carcinogen. If they’re right, the legal system has done them a great harm. If they’re wrong, they should pull Roundup from the market before anyone else is harmed.
(Note: In an ironic twist to this story, Judge Chhabria is now expressing skepticism about the terms of the Bayer settlement. In a four-page order refusing to delay a July court hearing in the case, he questioned “whether it would be constitutional (or otherwise lawful)” to hand the issue to a panel of scientists instead of judges and juries. In other words, he prefers to let ordinary people (juries) settle this scientific issue rather than a panel of scientists. He went on to say, “In an area where the science may be evolving, how could it be appropriate to lock in a decision from a panel of scientists for all future cases?” Here he makes a good point, for our scientific knowledge is always evolving. However, if future science proves that claims glyphosate causes cancer are proven false, will the courts demand a refund of Bayer’s money?)