“On the ropes,” Bayer seeks escape from costly Roundup litigation

By Carey Gillam

The scene now playing out in an obscure Missouri courtroom is one observed many times before: A veteran Monsanto scientist is spending long days on a witness stand, defending the company and its Germany-based owner Bayer against allegations that the agrochemical company’s popular Roundup weed killer causes cancer.

Donna Farmer, whose work as a Monsanto toxicologist began more than 30 years ago, has repeatedly assured jurors in the Missouri case of the safety of the company’s herbicides and of Monsanto’s devotion to rigorous scientific research. Farmer’s testimony, which was continuing on Monday, has been delivered in many prior trials and depositions.

The plaintiffs’ attorneys sought to counter those assurances by presenting evidence that also has been repeatedly shared in prior cases, showing jurors excerpts of internal corporate files that revealed secret Monsanto tactics to downplay connections between its products and cancer, including discussions of ghostwriting scientific papers.

But while the Missouri trial itself is not especially remarkable, the outcome of this latest courtroom battle could prove pivotal. Bayer executives have been warning in recent weeks that after losing billions of dollars to Roundup case settlements and jury awards, they may be ready to give up the fight.

“In the US, there is no broad protection for producers of pesticides … we can comply with the [federal regulatory] labeling requirements and still get sued for failing to warn.” Bayer CEO Bill Anderson told investors in a recent conference call.

Anderson said that is one factor among others as the company questions whether or not it should continue production of glyphosate, the active ingredient in Roundup and its other branded weedkillers. Glyphosate, introduced by Monsanto in the 1970s, is the world’s most widely used herbicidal chemical.

The company has already removed glyphosate from consumer herbicide products sold in the US. Now, the ongoing litigation “threatens Monsanto’s ability to continue to supply glyphosate-based products to farmers and other professional users,” the company said in a recent statement.

A June 2 posting by the agrochemical industry lobby group CropLife America addressed the developments with this observation: “Could the agricultural industry soon see the sun set on Bayer’s Roundup brand of glyphosate? Based upon the evidence, it certainly seems possible.”

After resolving a staggering 114,000 lawsuits, the company still faces roughly 67,000 more, according to company officials, and sees no end in sight for additional cases – each brought by people who allege they developed non-Hodgkin lymphoma from exposure to glyphosate-based herbicide products developed by Monsanto.

One recent hit to the company came in March when a Georgia jury awarded over $2 billion to the plaintiff in that case.

Bayer is trying to negotiate an extensive, global settlement to the litigation – an effort that failed once before – while also exploring the option of pushing the Monsanto business into bankruptcy, the Wall Street Journal recently reported.

The company is also pushing for the passage of state and federal legislation that would limit future litigation.

All signs indicate the company is “on the ropes,” said Nathan Donley, environmental health science director at the Center for Biological Diversity.

“Bayer made one of the worst business decisions in history by buying Monsanto and all the baggage that came with it,” Donley said. “Now they’re trying to offload the liability onto the backs of their customers. It’s one of the most shameless corporate schemes I’ve ever witnessed.”

A big blow

While the vast majority of cases have been settled, juries have awarded more than $4 billion to plaintiffs who won their cases through trials. Appellate courts have largely rejected Monsanto and Bayer efforts to reverse the decisions, though many of the larger awards have been reduced.

The latest blow came on May 27 when the Missouri Court of Appeals’ Western District upheld a $611 million verdict awarded to three plaintiffs after a 2023 trial, rejecting Bayer efforts to overturn the loss. The jury in the case had ordered the company to pay $1.56 billion, but the trial judge cut the punitive damages, leaving the total owed at $611 million.

Bayer argued the plaintiffs’ win should be thrown out for several reasons, but the appellate judges said none were valid. In one example, the appeals court disagreed with Bayer’s argument that the trial judge should have barred testimony about a 2022 court ruling finding a determination by the Environmental Protection Agency (EPA) that glyphosate was “not likely” to be carcinogenic was unsupported by substantial evidence.

Notably, the appeals court also rejected Bayer’s claim that federal law preempts key “failure-to-warn” claims made by plaintiffs in the lawsuits, an argument Bayer continues to promote with limited success so far.

The company asserts that federal law governing pesticides preempts state requirements for labeling of products, and that the EPA’s finding of safety with Roundup products prohibits Monsanto from warning of a cancer risk that the EPA has not found.

Most courts asked to address the issue have ruled that the company’s argument is not legally correct. But Bayer continues to press the matter.

Bayer issued a statement last week saying it will further appeal the case.

Stakes “could not be higher”  

Continuing to push the preemption issue, Bayer recently filed a petition with the US Supreme Court, asking the justices to weigh in.

“The stakes could not be higher as tens of thousands of Roundup cases are pending in state and federal courts, all of which rest on state-based failure-to-warn claims that should be preempted by federal law,” the company said in a statement.

A favorable ruling by the Supreme Court “could largely curtail this litigation,” the company said.

The US Supreme Court denied two similar appeals from the company in 2022.

In its new petition to the high court, the company said the litigation is endangering the US agricultural industry.

“The litigation has already forced Monsanto to remove glyphosate from its consumer version of Roundup, but the continuing overhang of these lawsuits threatens Monsanto’s ability to continue to supply glyphosate to farmers who need it to remain world leaders in food production,” the company states in the court filing.

Several powerful agricultural organizations have filed briefs supporting Bayer, including CropLife America and the American Farm Bureau.

Alongside its efforts to get a favorable court ruling on the issue of preemption, Bayer has been lobbying state lawmakers across the country to pass preemption legislation to protect the company from litigation going forward. Georgia and North Dakota are so far the only two states to pass such laws, but Bayer has said it hopes that more states will follow suit soon.

At the federal level, the company is pushing for passage of a law locking in Bayer’s preemption position. Last week, a day after Bayer lost the appellate court decision, hundreds of farm groups sent a letter to members of Congress urging them to support the proposed law.

The company’s efforts to get state and federal legislation passed to protect it from lawsuits angers health and environmental advocates.

George Kimbrell, legal director at the Center for Food Safety, said the preemption push goes beyond seeking immunity for lawsuits over Roundup and other glyphosate products and would extend the protections to an array of other pesticides. The center has pushed for years for stricter regulatory oversight of glyphosate and other pesticides, and brought the 2022 case that found the EPA failed to adequately consider cancer risks associated with glyphosate.

“If these toxins are too dangerous to be sprayed without legal immunity, the answer should never be to remove responsibility for the harms they cause,” Kimbrell said. “It must be that they should not be used, period.”