by Joel Rosenblatt
“I wanted you to get up and drink it.”
That was one juror’s response to a Bayer AG lawyer who asked for feedback in the hallway of an Oakland, California, courthouse after losing a $2.055 billion verdict Monday in a trial over whether Roundup weedkiller causes cancer.
The take-away: A jury that spent weeks listening to Bayer’s assurances that the herbicide has been scientifically proven safe didn’t buy it. The panel deliberated for less than two days and decided to punish the company with the eighth-largest product-defect verdict in U.S. history for covering up Roundup’s health risks for decades.
A second juror said that while he didn’t agree with the outsize sum, the jury wanted to send a message to agrochemical giant Monsanto, the maker of Roundup that was acquired by Bayer last year.
“We really wanted to tell Monsanto, ‘Cut it out, do better,’ and we wanted to get their attention," Doug Olsen said. Jurors wanted Bayer to “take us seriously," he said, adding that a significantly lesser sum wouldn’t have the “same punch-in-the-gut effect."
Two previous trials in San Francisco over the herbicide yielded combined damages of $159 million against the company. Bayer is appealing those verdicts and vowed to challenge Monday’s as well, calling it “excessive and unjustifiable.”
The verdict “conflicts directly with the U.S. Environmental Protection Agency’s interim registration review decision released just last month, the consensus among leading health regulators worldwide that glyphosate-based products can be used safely and that glyphosate is not carcinogenic,” Bayer said in a statement.
The company stands a good chance of getting the damages knocked down: Courts have generally held that punitive damages shouldn’t be more than 10 times higher than compensatory damages. Under that ratio, the jury’s award Monday to Alva and Alberta Pilliod of about $55 million for medical bills and pain and suffering would entitle them to a maximum of about $550 million in punitive damages.
All told, the German pharma and chemicals titan faces 13,400 lawsuits claiming Roundup causes cancer, with the number jumping by thousands each quarter. Even as it fights the cases, Bayer Chief Executive Officer Werner Baumann faces a growing shareholder rebellion.
But while some investors think a third loss could accelerate a global settlement, which analysts have said could top $5 billion, at least one legal expert thinks Bayer will fight on because it won’t start negotiating from a position of weakness. The next trials are scheduled for this summer in St. Louis, the home base of Monsanto’s operations.
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If plaintiffs continue to win cases decided by juries in Missouri, the momentum in their favor “may push Bayer to begin to negotiate,” said Anna Pavlik, senior counsel for special situations at United First Partners LLC in New York.
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