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Bayer won't seek Supreme Court review of Roundup verdict

ScottOlson/GettyImages Roundup label
Decision reflects legal strategy to focus on the second Roundup verdict.

By Joel Rosenblatt

Bayer AG won’t seek U.S. Supreme Court review of the first verdict finding its Roundup herbicide caused cancer.

The company said Tuesday that the decision not to pursue a further appeal of the verdict won by a school groundskeeper after a state appeals court reduced it to $20.5 million was made after “careful and extensive consideration,” and reflects a legal strategy to end the state court case and instead focus on the second Roundup verdict, in federal court.

“The decision is not based on the merits of this case,” Bayer said in an e-mailed statement, referring to a lawsuit brought by Dewayne Johnson and decided in 2018 by a San Francisco jury. The federal case being reviewed by the 9th Circuit Court of Appeals “will serve as a better case for review by the Supreme Court,” Bayer said.

Litigation over Roundup -- which plaintiffs claim causes cancer -- remains Bayer’s biggest challenge. After losing three trials over the matter in the U.S., the company has been negotiating with tens of thousands of claimants for more than a year and a half, and has still failed to put the litigation behind it. Bayer insists the product is safe.

The U.S. Enviromental Protection Agency has weighed in on Bayer’s side in the federal appeals court case, in which a jury found Roundup defective because it’s sold without a cancer warning. A lower-court judge cut the verdict from more than $80 million to $25 million but refused to overturn the verdict.

The EPA has said it reviewed and approved the Roundup warning label issued by Monsanto, which Bayer acquired in 2018 for about $63 billion. In the federal case, the agency backed Bayer’s argument that plaintiff Edwin Hardeman’s lawyers ignored the EPA’s authority and instead improperly relied on California law to claim the omission resulted in a flawed label.

In its statement Friday Bayer explained that in Johnson’s case the key issue of “federal preemption” has no bearing on any lawsuit besides his.

Hardeman’s case at the federal appeals court is “a better candidate for Supreme Court review” because the ruling is expected to address “the most significant federal questions at issue in the Roundup litigation, including preemption and the admissibility of expert evidence,” Bayer said.

Johnson was originally awarded $289 million. Bayer later won a ruling from the trial judge cutting it to $78.6 million and then persuaded the appeals court to lop off another $58 million.

While the Roundup litigation was significant before Johnson’s case went to trial, the trio of verdicts against the company fueled a frenzy of lawsuits that as of June totaled more than 125,000. Bayer is also appealing the third verdict, which was in California state court.

Bayer said last month it still expects to spend $9.6 billion to resolve existing suits over the controversial weedkiller.

“Bayer has great sympathy for Mr. Johnson and all people battling cancer yet continues to believe the Johnson verdict is not supported by the evidence or the law,” Bayer said.

© 2021 Bloomberg L.P.
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