Bayer at ‘end of rope’ in Roundup cases, St. Louis attorney says

The decision is another key defeat for Bayer. Together, the setbacks are expected to eliminate a legal standstill in unresolved cases, according to plaintiffs’ lawyers. Bayer now essentially has two choices, they say: Go to trial to fight more cases, or reach additional out-of-court settlements.

“Everything has kind of fallen apart on Bayer,” said Jim Onder, an attorney from the St. Louis-based Onder Law Firm. “They’re kind of at the end of the rope.”

Onder represents just under 20,000 plaintiffs in Roundup cases — about half of the unresolved caseload nationwide, he said.

Bayer said it “respectfully disagrees” with the court’s decision and that the company is “fully prepared to manage the litigation risk associated with potential future claims in the U.S.”

It has already resolved about 107,000 cases out of 138,000 cases overall, the company said in its March annual report.

Roundup lawsuits have dogged Bayer since it acquired the brand as part of its $63 billion purchase of agricultural seeds and pesticides maker Monsanto, based in Creve Coeur, in 2018.

Some of the cases have gone to trial, including four that Bayer won. But it also lost three, in which Roundup users have been awarded tens of millions of dollars in each.

On Friday, a federal appeals court ordered the U.S. Environmental Protection Agency to take a fresh look at whether Roundup’s active ingredient, glyphosate, poses unreasonable risks to humans and the environment. The San Francisco-based 9th U.S. Circuit Court of Appeals agreed with several environmental, farm worker and food safety advocacy groups that the EPA did not adequately consider whether glyphosate causes cancer and threatens endangered species.

Bayer had pinned hopes for relief on the conservative-majority Supreme Court, which has a reputation for being pro-business. The company asked the court to review a California verdict: Sonoma County resident Edwin Hardeman had regularly used Roundup for 26 years at his home in northern California’s wine country before being diagnosed with a form of non-Hodgkin’s lymphoma.

A jury in 2019 awarded Hardeman $5 million in compensatory damages and $75 million in punitive damages in the first federal case to trial. The punitive award was later cut to $20 million. In May last year, the 9th Circuit upheld the ruling.

In May this year, President Joe Biden’s administration urged the Supreme Court not to hear the Bayer appeal, reversing the government’s position previously taken under former President Donald Trump.

Bayer, which also makes aspirin, Yasmin birth-control pills and the stroke prevention drug Xarelto among other products, has argued that the cancer claims over Roundup and glyphosate go against sound science and product clearance from the EPA. The agency has upheld guidance that glyphosate is not carcinogenic and not a risk to public health when used as indicated on the label.

Bayer has said it should not be penalized for marketing a product deemed safe by the EPA and on which the agency would not allow a cancer warning to be printed.

The lawsuits against Bayer have said the company should have warned customers of the alleged cancer risk.

Bayer struck a settlement deal in principle with plaintiffs in June 2020 but failed to win court approval for a separate agreement on how to handle future cases.

In July 2021, Bayer took an additional litigation provision of $4.5 billion in case of an unfavorable ruling by the Supreme Court or in case the justices declined to consider its appeal. This left a “significant upside” if the Supreme Court ruled in its favor, Bayer said.

The provision came on top of $11.6 billion it previously set aside for settlements and litigation over the matter.

Bayer plans to replace glyphosate in weedkillers for the U.S. residential market for non-professional gardeners with other active ingredients.

Bayer’s shares were down 2.9% on the Supreme Court news, eliminating gains over the previous two trading sessions.

Additional reporting by Ludwig Burger.