Bayer's logo on top of their Berlin headquarters. Credit: brunocoelho/Shutterstock

In a setback for Bayer, the U.S. Supreme Court has denied review of its petition in a case brought over Monsanto's Roundup pesticide.

Tuesday's decision ensures that court battles will continue over Roundup, which lawsuits contend causes non-Hodgkin lymphoma. Bayer reiterated its plan to consider a possible claims process to resolve future Roundup claims but, having won four verdicts in the past year from juries in California, Missouri and Oregon, has renewed optimism about its chances in court.

"While the company expects any future claims program would be successful, it is fully prepared to defend cases in court where the expectations of claimants are unreasonable and fall outside the bounds of this program," Bayer said. "The company is confident that the extensive body of science and consistently favorable views of leading regulatory bodies worldwide provide a strong foundation on which it can successfully defend Roundup in court when necessary."

Bayer introduced both the Supreme Court petition and a claims process a year ago as part of its "five-point plan" to resolve future Roundup litigation. It set aside $4.5 billion to pay claims, but previously had estimated $2 billion to resolve future Roundup claims.

On Tuesday, Bayer emphasized that the claims process, which would be led by famed mediator Ken Feinberg and be implemented over 15 years, involved no admission of wrongdoing or liability. And it wasn't happening quite yet.

"The company is fully prepared to launch the claims resolution program but that decision will depend on key developments in the litigation, including trials and appeals," Bayer said.

Continued court battles over Roundup were the focus of the American Association for Justice, the nation's largest plaintiffs bar organization, in a statement Tuesday. "Today, the Supreme Court said that Monsanto (now owned by Bayer) could be held accountable for poisoning Americans with Roundup. Now these victims, primarily farm workers who labor to put food on our tables, will be able to seek justice," the AAJ said.

In a statement, Jennifer Moore, of Moore Law Group in Louisville, Kentucky, and Aimee Wagstaff, of Denver's Andrus Wagstaff, who represented Edwin Hardeman at trial in the case before the Supreme Court, also referenced more trials to come.

Aimee Wagstaff of Andrus Wagstaff.

"This has been a long, hard-fought journey to bring justice for Mr. Hardeman, and now thousands of other cancer victims can continue to hold Monsanto accountable for its decades of corporate malfeasance," they wrote.

Two years ago, Bayer agreed to pay $10 billion to settle about 100,000 claims over Roundup after losing three jury verdicts in California totaling nearly $2.4 billion. The second verdict, in which a jury awarded $80 million to plaintiff Hardeman, was the only one in federal court. Last year, the U.S. Court of Appeals for the Ninth Circuit upheld the 2019 award, then reduced it to $25.3 million, prompting Bayer's appeal to the Supreme Court.

Bayer argued in its petition that the Federal Insecticide, Fungicide and Rodenticide Act, or FIFRA, preempted claims that Monsanto failed to warn about Roundup's health risks. Despite scientific findings that Roundup's key ingredient, glyphosate, is carcinogenic, Bayer has cited the U.S. Environmental Protection Agency's approval of it as safe.

Last month, U.S. Solicitor General Elizabeth Preloger filed an amicus brief urging the Supreme Court to reject the petition. More than 50 agricultural groups, including the American Farm Bureau Federation, wrote a letter to President Joe Biden insisting that the "stunning reversal," which took an opposing view to the Justice Department's amicus brief before the Ninth Circuit under the Trump administration, would disrupt the nation's food supply and hamper trade negotiations.

"The company is strongly encouraged by the widespread support from public officials, agricultural organizations and other stakeholders following the U.S. Government's legal reversal in Hardeman," Bayer said on Tuesday. "These third parties expressed opposition to the Solicitor General's brief and raised significant concerns that it departed from science-based regulation, could exacerbate food shortages at a critical time, threatened environmental sustainability and was prepared without consultation with the U.S. Department of Agriculture which has a vital interest in the outcome of the case."

Bayer also noted that it had more Roundup appeals pending. Among them are a March 17 petition before the Supreme Court to reverse a 2019 Roundup verdict in California that awarded $2 billion to Alberta and Alva Pilliod, later reduced to $87 million, and a case before the U.S. Court of Appeals for the Eleventh Circuit in which Bayer wants to affirm a district judge's dismissal based on federal preemption.

"While this decision brings an end to the Hardeman case, there are likely to be future cases, including Roundup cases, that present the U.S. Supreme Court with preemption questions like Hardeman and could also create a Circuit split," Bayer wrote.

Robin Greenwald, of New York's Weitz & Luxenberg, who is co-lead plaintiffs counsel in the Roundup multidistrict litigation with Wagstaff, cast doubt on Bayer's federal preemption argument going forward.

"The court's decision is consistent with its prior decisions and allows cancer victims to sue Monsanto for failing to warn Roundup users that exposure to the product may cause cancer," she wrote. "Every other federal and state court that has addressed this issue has similarly concluded that federal law does not preclude a person diagnosed with non-Hodgkin lymphoma from bringing a lawsuit against Monsanto under state law theories of liability. Monsanto can no longer try to use its flawed legal arguments to avoid liability for nearly 50 years of misleading the public about the dangers of its products."

There are also more trials scheduled in the coming months. Most recently, on Friday, a jury in Jackson County Circuit Court in Medford, Oregon, came back with a defense verdict in a Roundup trial.

About 30,000 Roundup lawsuits are pending in courts across the country, but settlement remains uncertain.

"The company will only consider resolving outstanding current cases and claims if it is strategically advantageous to do so," Bayer said on Tuesday.

Amanda Bronstad

Amanda Bronstad

Amanda Bronstad is the ALM staff reporter covering class actions and mass torts nationwide. She writes the email dispatch Law.com Class Actions: Critical Mass. She is based in Los Angeles.

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