Judge weighs “fairness” of $7.25 billion Roundup settlement for cancer victims

Opposing teams of attorneys spent hours on Monday battling over a proposed $7.25 billion settlement of the US Roundup cancer litigation that, if approved, would allow Bayer to keep selling its controversial glyphosate weed killers while providing roughly $10,000 to $165,000 for individuals suffering from cancer they blame on Roundup use.

Judge Timothy Boyer of the Circuit Court for the City of St. Louis called the lengthy “fairness hearing” to address a litany of complaints raised by a group of plaintiffs’ lawyers who challenged the judge’s preliminary approval of the settlement earlier this year.

The objecting attorneys said the structure of the class action settlement amounts to a collusive arrangement between Bayer and a group of supportive plaintiffs’ attorneys that provides a rich payout of $675 million in fees to the lawyers who put the deal with Bayer together and are helping promote the deal, but provides paltry payments for the cancer sufferers who make up the class.

The settlement would include people currently suing the company and also provide a framework for paying Roundup users who develop non-Hodgkin lymphoma (NHL) in the future.

But it would allow Bayer, the German conglomerate that bought the former Monsanto Co. in 2018, to continue selling the products without cancer warnings while largely shielding the company from hefty future punitive damages as have been awarded in some jury trials.

“This settlement is the scariest, worst future settlement that’s ever been contemplated,” Gerson Smoger, a plaintiffs’ attorney opposing the settlement, told the judge. “This settlement is the first future settlement to ever lock in people …  with no punitive damage to a 20-year claims period, and keep the product that they were exposed to on the market, allowing the victims to continue to be exposed to that product, allowing punitive damages to go away for all those people regardless of the subsequent conduct of Monsanto.”

An additionally important problem with the settlement is that plaintiffs agreeing to it likely would see any amount they do receive lost to insurance liens tied to their medical care, according to attorneys opposing the settlement.

Attorneys objecting to the settlement said other problems with the deal included terms that attempt to lock in people who did not affirmatively opt out within a short period of time. And they argued that the Missouri court does not have authority over people who don’t live in Missouri and who have not filed suit in Missouri.

In contrast, the lawyers who put the deal together with Bayer say it is the best path forward for plaintiffs because without the deal the plaintiffs could be caught indefinitely in a backlog of thousands of cases and never go to trial nor receive any compensation. The threat of a company bankruptcy is also a real possibility, the lawyers supporting the deal warned.

And they said that the recent Supreme Court ruling that found federal law preempts state failure-to-warn claims against Bayer and other pesticide makers undermines plaintiffs’ abilities to succeed in court going forward.

There have been only 24 Roundup trials completed to date, despite the fact that the first lawsuits were filed over a decade ago. Juries in 11 of those trials found in favor of the plaintiffs, while the company prevailed in the other 13 trials, Eric Holland, a plaintiffs’ lawyer supporting the settlement, told the judge.

Another 200 plaintiffs currently have trial dates scheduled, Holland said, but thousands of people suffering and dying from cancer will largely be on the sidelines without the ability to seek compensation if the settlement is not approved.

“This settlement accomplishes what individual litigation has not, and that is a fair way for all valid claims, current and future, to be compensated without unreasonable delay,” Holland told the judge.

Under the proposed settlement, compensation to individuals would be tiered and awarded based on the nature and extent of a class member’s exposure, age at the time of NHL diagnosis, and type of NHL. No other cancers are included, only NHL.

According to the proposed settlement, an occupational user of the company’s glyphosate herbicides diagnosed with an aggressive type of NHL younger than 60 years old could see a payout of $165,000 on average. Individual awards could vary from the average from 80% to 120%, according to court filings.

The company requires that the vast majority of plaintiffs participate in the settlement in order to go forward. The company will make up-front and annual payments into a settlement fund for 17-21 years, according to the settlement terms.

The judge said the parties have until the end of this week to submit proposed orders on the issue. He said he cannot predict how long it will take him to rule on the settlement.

Well over 100,000 people sued Monsanto and subsequently Bayer over the cancer claims after the International Agency for Research on Cancer in 2015 classified glyphosate – the active ingredient in Roundup – as probably carcinogenic to humans.

Bayer has already paid out billions of dollars to settle or otherwise resolve the majority of the cases, but an estimated 40,000 to 50,000 cases remain. The company has spent years pursuing a class action settlement that will close out the current lawsuits and head off future lawsuits.

A prior settlement effort was thrown out by US Judge Vince Chhabria of the Northern District of California, who is in charge of overseeing the Roundup multidistrict litigation (MDL). Chhabria earlier this year reviewed the current proposed settlement and had harsh criticism for it.

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