Judge raises concerns about Bayer’s Roundup settlement scheme

Thousands of people have sued Bayer, which bought Monsanto, over the product Roundup. Most plaintiffs claim that routine use of Roundup, which contains the weed killer glyphosate, caused them to develop cancer.

After several adverse verdicts, Bayer attempted to settle a class of future claims — close to 100,000 — in an interesting way. Bayer would create a panel of independent scientific experts who would determine the matter of whether glyphosate causes cancer. This would be done out of court and in lieu of a jury.

If the panel decided glyphosate causes cancer at a certain exposure level, plaintiffs who experienced that level of exposure would automatically get compensation. If the panel determined, however, that glyphosate is not a cancer risk, the plaintiffs would lose and have no appeal.

Individual plaintiffs with current claims could opt out of the deal and continue bringing forth their claims in court. Future plaintiffs would not be bound by the deal.

In 2015, the cancer research arm of the World Health Organization labeled glyphosate a “probable carcinogen,” or cancer-causing agent. Likewise, three U.S. juries have found it more likely than not that Roundup causes cancer.

Bayer disputes the scientific evidence in the legal cases and points to several regulatory agencies’ determination that glyphosate is safe to use.

Judge questions the legitimacy of the scientific panel approach

The purpose of the civil court system, as imperfect as it may be, is to reach the truth. The idea is that plaintiffs and defendants should present their evidence to a jury of ordinary people or to a non-expert judge. This is a challenge when the evidence is highly scientific or technical.

Despite any challenges, it is the system we have, and the federal judge in the Roundup class action seems committed to upholding it.

U.S. District Judge Vince Chhabria stated that he is “tentatively inclined” to deny preliminary approval of the settlement deal, as he is “skeptical of the propriety and fairness of the proposed settlement,” according to Reuters.

The concern seems to be around taking away the judge and jury’s role in determining whether Roundup causes cancer. Moreover, the settlement agreement doesn’t appear to have as much potential for advantage for the plaintiffs as it does for the defense.

“Thus far, judges have been allowing these cases to go to juries, and juries have been reaching verdicts in favor of the plaintiffs, awarding significant compensatory and punitive damages,” said Chhabria. “Why would a potential class member want to replace a jury trial and the right to seek punitive damages with the process contemplated by the settlement agreement?”

Punitive damages are meant to punish wrongdoing, and several juries have found substantial wrongdoing by Bayer/Monsanto.

The judge also noted that a scientific panel cannot necessarily issue a final word on glyphosate when the scientific understanding of the product is still evolving. And, he wanted to ensure that the average plaintiff would have a meaningful chance to weigh their options about whether to go with the scientific panel or a jury trial.

Chhabria asked for two-page letter briefs from each side before the next hearing, which is on July 24.

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