Why doesn’t Bayer/Monsanto just settle the Roundup cancer claims?

We’ve been discussing the flood of lawsuits over Monsanto’s weed killer Roundup, which has been tied to non-Hodgkin’s lymphoma and possibly other cancers. First introduced in 1974, the product contains a chemical called glyphosate, which is the chemical that plaintiffs argue causes cancer. Currently, more than 18,400 plaintiffs are suing Bayer AG, which bought Monsanto last year.

In 2015, a World Health Organization study determined that glyphosate is probably carcinogenic (cancer-causing). However, Bayer points to other studies, including studies performed by the EPA, which fail to show a connection between glyphosate and cancer.

Additional lawsuits are constantly being filed, especially after a California jury in May awarded $2 billion in punitive damages against Bayer. Punitive damages are awarded separately from compensation and are meant to punish wrongdoing.

Many of the plaintiffs claim Monsanto knew of the cancer risks of glyphosate but failed to warn consumers. In the California case, it was found that Monsanto ghost-wrote some of the studies Bayer is relying on for its defense. Moreover, the jury found that Monsanto executives actively tried to influence at least one EPA official.

So far, only three Roundup cases have been gone to trial. All three trials were decided by a jury, and Bayer lost all three. Whileinsisting that glyphosate is not carcinogenic and is safe for human use, Bayer has appealed the verdicts.

In June, Bayer announced that it will invest $5.6 billion to develop an alternative to glyphosate. Bayerhas never publicly said it was considering pulling Roundup from the market.

Mediation might pave the way to settlements

According to Reuters, Bayer has said that it is “constructively engaging” in settlement talks through a mediator, with an eye toward a “financially reasonable” settlement of all claims against it. The mediator said in August that the mediation is still in its early stages. Bayer and plaintiffs’ lawyers have declined to comment.

In major product liability suits with many plaintiffs, a universal settlement often involves setting up a compensation fund for current and future plaintiffs, with a cut-off date to make new claims.

Bayer’s refusal to consider adding a warning label about Roundup’s cancer risk could stand in the way of a universal settlement, however. Since non-Hodgkin’s lymphoma and other cancers can take years to develop, new plaintiffs could emerge years down the line. If Bayer hasn’t added a cancer warning, it could be held liable for those new cancers even after the cut-off date.

Yet Bayer may not be allowed to issue a cancer warning. California is currently the only state that requires a cancer warning on glyphosate products, and the EPA recently sent a letter to the State claiming such a warning would be “a false and misleading statement.” The EPA has refused to order a cancer warning for Roundup, saying it has found glyphosate to be safe for human use.

Another potential roadblock? The mediation process was instigated by the federal judge overseeing the various federal court lawsuits filed against Bayer and consolidated before the one federal judge. Most of the cases against Bayer have been filed in state courts.

Bayer might not settle the claims if it can’t reach a settlement that includes all plaintiffs and protects it from long-term liability. It might choose instead to fight each lawsuit, hoping that a set of successful appeals would shut down the rest of the litigation. On the other hand, plaintiffs may take their chances in court if Bayer refuses to address the cancer risk or, at the very least, begin including a cancer warning with the products.

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