Within days of a federal court ruling that there is insufficient evidence to support claims that Roundup weed-killer is a human carcinogen, the maker of the popular herbicide agreed to pay up to $10.9 billion to settle with plaintiffs who claim that glyphosate, the active ingredient in Roundup, caused their cancer.
Scientific regulatory agencies in the United States, Canada, Japan, Australia, and the European Union, as well as the Joint Meeting on Pesticide Residues of the United Nations, have concluded that glyphosate poses no public health risk and is not a human carcinogen when used properly. Nevertheless, attorneys have brought thousands of lawsuits in state and federal courts, seeking damages from Bayer, the maker of Roundup, for plaintiffs’ non-Hodgkin’s lymphoma. Three runaway juries have found Bayer liable to the tune of $289 million, $80 million and $2 billion, respectively.
Bayer says the settlement is not an admission of liability.
So why settle?
Bayer CEO Werner Baumann said that, in this case, the settlement was necessary to “return the conversation about the safety and utility of glyphosate-based herbicides to the scientific and regulatory arena and to the full body of science.”
In the American legal system, decisions as to whether to allow an expert to testify in court are made by each individual judge hearing a case. Even if the majority of judges reject testimony that glyphosate causes cancer, those decisions have no precedential value. The next judge can decide to admit such evidence and let the jury determine its reliability. When a company faces thousands of lawsuits, even one erroneous decision by a single judge can mislead a jury into awarding billions of dollars to a sympathetic plaintiff.
Under the terms of the settlement agreed to last week, however, a five-member panel of scientists will make a determination as to whether Roundup can cause non-Hodgkin’s lymphoma, and if so, at what minimum exposure levels. The findings will be binding in all future cases, taking the determination as to admissibility and general causation out of the hands of individual judges and juries.
Bayer is betting that the panel, like the vast majority of the world’s regulatory bodies, will conclude that ordinary use of glyphosate does not cause cancer.
Bayer hopes that the settlement will therefore strike a blow against junk science by preventing courts from admitting unreliable expert testimony on glyphosate in the future.
Perhaps. But as my colleague Julie Gunlock has elsewhere noted, settlements such as these can cause grave damage to a company’s reputation, as consumers associate such settlements with guilt.
Unfortunately, massive financial settlements also encourage plaintiffs’ lawyers to strike again, which is why the Wall Street Journal calls the Bayer settlement, “a shakedown for the history books.”