It looks like Bayer’s long national litigation nightmare may not be over just yet. 

Last month, the company agreed to pay billions of dollars to settle with plaintiffs who claim that glyphosate, the active ingredient in the popular weedkiller Roundup, caused their non-Hodgkin’s lymphoma — even though scientific regulatory agencies around the world have found that glyphosate is not a human carcinogen, and both the Environmental Protection Agency and a federal court have ruled that the product should not carry a cancer warning label, as this would be contrary to science.

Despite overwhelming scientific data indicating Roundup is safe when used properly, Bayer decided to settle in response to shareholder pressure after three runaway juries found the company liable for $289 million, $80 million, and $2 billion, respectively. Tens of thousands of additional pending lawsuits created economic uncertainty for Bayer, which purchased Monsanto, the maker of Roundup, in 2018. 

Under the terms of the agreement, Bayer agreed to pay between $10.1 billion and $10.9 billion to resolve the Roundup litigation. Of this amount, $8.8 billion to $9.6 billion would be allocated to resolve existing claims, while the remaining $1.25 billion would be put in reserve for future potential litigants.  The crux of the agreement involved the creation of a five-member scientific panel that would determine whether, and at what exposure levels, glyphosate can be a human carcinogen.  The agreement binds all future litigants to the findings of the panel. 

The goal of the agreement was to remove scientific determinations from judges and jurors, whose sympathies for sick plaintiffs can unduly influence their determinations as to causation. Bayer executives had hoped that the settlement would strike a blow against junk science by preventing courts from admitting unreliable expert testimony on glyphosate in the future.

But now a federal judge has cast doubt on the settlement.

In an order issued on Monday, U.S. District Judge Vince Chhabria, who allowed plaintiffs’ to present unreliable expert testimony in the nation’s first federal Roundup trial, indicated that he is likely to reject the idea.  “The court is skeptical of the propriety and fairness of the proposed settlement, ” Chhabria wrote.

In his order issued on Monday, Judge Chhabria questioned why future potential litigants would favor such a settlement when other Roundup users have obtained “significant compensatory and punitive damages” at trial.

“Why would a potential class member want to replace a jury trial and the right to seek punitive damages with the process contemplated by the settlement agreement?” he wrote.

Why, indeed?

One might wonder, also, why Bayer would be willing to pay billions of dollars to current plaintiffs without any assurance that future determinations of fault will be based on science, rather than raw emotion.