by Joel Rosenblatt and Robert Burnson
Bayer AG lost a second trial over claims its Roundup weed killer causes cancer, increasing pressure on the company to spend billions of dollars to settle thousands of similar lawsuits.
A jury in San Francisco federal court awarded compensatory damages of $5.3 million and punitive damages of $75 million to a 70-year-old California man who became ill after spraying the herbicide on his property for decades. Wednesday’s verdict follows a similar decision by a state court jury last summer, and comes as a third trial over Roundup is under way in Oakland, California.
“You can’t keep trying case after case after case and keep losing and say, ‘We’re not going to settle,” said Thomas G. Rohback, a trial lawyer at Axinn in New York. If Bayer continues to lose at trial, it “has to put the possibility of a settlement of these cases into the mix.”
Roundup became the German company’s leading headache after it acquired Monsanto Co. for about $63 billion last June. Bayer has lost more than 60 percent of its value since the transaction. On Thursday, its shares fell as much as 3.3 percent to 54.48 euros in Frankfurt trading, the lowest level in more than six years.
The case was brought by Edwin Hardeman, who used the weed killer on his large plot of land in Sonoma County, about 60 miles north of San Francisco. As with the thousands of other consumers suing Bayer, Hardeman argued his years of exposure to the chemical caused his non-Hodgkin’s lymphoma.
Bayer said it is disappointed with the jury’s decision and plans to appeal.
“This verdict does not change the weight of over four decades of extensive science and the conclusions of regulators worldwide that support the safety of our glyphosate-based herbicides and that they are not carcinogenic,” Chris Loder, a spokesman for Bayer, said in a statement. “The verdict in this trial has no impact on future cases and trials, as each one has its own factual and legal circumstances.”
Analysts have put the price of settling lawsuits over Roundup filed by more than 11,200 people in the U.S. at more than $5 billion. Rohback said Bayer may be pursuing a “long game,” based on a strategy of continuing to fight in hopes of finding some plaintiffs it can beat.
"A new $80 million verdict against Bayer over claims its weedkiller caused a consumer’s cancer signals a tough slog ahead for the company in many of the 11,200 cases pending across the U.S."
The Roundup verdict is the third-largest product liability jury award in the U.S. so far in 2019, according to data compiled by Bloomberg. The largest such verdict, for $151.8 million, was issued by an Alabama jury last month against Ford Motor Co., over an Explorer rollover accident.
Bayer won’t have the advantage in Oakland that it had in San Francisco federal court. Hardeman’s trial was split into two parts, a format that legal experts said gave the company its best chance of evening the score after it lost the first Roundup trial last summer and was ultimately ordered to pay $78.6 million in damages.
Instead, the Oakland trial will permit lawyers to present jurors at the outset with their narrative about Monsanto Co.’s secret campaign to manipulate public opinion and bury evidence of Roundup’s cancer risks.
Jurors in Hardeman’s case first sat through weeks of scientific testimony to decide whether Roundup was a “substantial factor” in causing his illness before they heard any evidence that Monsanto ghostwrote influential studies and improperly leaned on regulators. Bayer countered that scientific studies showed the herbicide is safe and argued to the jury that damning emails were taken out of context.
The jury found that there’s a defect in Roundup, that Bayer failed to warn of the product’s risks and that the company was negligent.
Hardeman sought more than $19 million in damages, including compensation for hospital bills as well as pain and suffering.
His lawyers said the verdict sends a message to Monsanto that it needs to change the way it does business.
“It speaks volumes that not one Monsanto employee, past or present, came live to trial to defend Roundup’s safety or Monsanto’s actions,” Aimee Wagstaff and Jennifer Moore said in a statement.
Bayer’s adversaries in Oakland are Alva and Alberta Pilliod, a couple in their 70s who invoked a California law that gives scheduling preference to people who are ill. A school groundskeeper who won the first trial against Bayer in August relied on the same law.
Bayer is appealing the August verdict.
If the losses keep coming, Rohback said, Bayer’s only justification for continuing to fight is if plaintiffs’ lawyers are making unrealistic demands to resolve the litigation.
“Let’s assume Bayer loses the second one and a third one,” he said. “At some point you’re not getting a lot of encouragement to go forward with the same approach.”
The case is In re: Roundup Products Liability Litigation, MDL 2741, U.S. District Court, Northern District of California (San Francisco).
--With assistance from Margaret Cronin Fisk.
To contact the editors responsible for this story: Elizabeth Wollman at [email protected] Peter Blumberg, Steve Stroth
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