By Christina Grube

(MASS TORT NEWS) This week, the Supreme Court made a second favorable ruling for plaintiffs’ litigation against pharmaceutical giant Bayer. The Court upheld two 2019 consumer trial verdicts of $25 million and $87 million against the company after each set of plaintiffs developed Non-Hodgkin’s Lymphoma after using the weedkiller Roundup (Monsanto v. Hardeman & Monsanto v. Pillod). 

Brent Wisner, a partner with Baum Hedlund Aristei & Goldman, leads the charge in litigation against Monsanto, Bayer’s agrochemical company, saying “Monsanto can no longer avoid responsibility for the unspeakable harm they have caused…I am confident that our team can repeat the success we enjoyed in the first three Roundup trials.”

The connection between the chemical glyphosate, a key component of Roundup, and cancer has been hotly debated for years. Although Bayer has paid out millions in lawsuits, public officials still can’t seem to agree on glyphosate’s safety for wide public use.

Days before the Supreme Court allowed the Hardeman and Pillod cases to move forward, the Ninth Circuit Court of Appeals for the United States issued a decision to overturn a 2020 Environmental Protection Agency (EPA) finding that listed glyphosate as non-cancerous. Judge Michelle Friedland penned the decision for the Court, stating that: “[the] EPA did not adequately consider whether glyphosate causes cancer and shirked its duties under the Endangered Species Act…We agree and remand to the agency for further consideration.”

US legal critics and environmental advocates also agree with the ruling, echoing the EPAs disregard for the Endangered Species Act. However, the EPA mission rejects responsibility for managing the Endangered Species Act, writing “Some problems that seem like something we would handle are actually the responsibility of other federal, tribal, state or local agencies…The Endangered Species Act is primarily managed by the U.S. Fish and Wildlife Service.”

The EPA officially labeled glyphosate as “unlikely to be a human carcinogen” in January of 2020 after years of review and public comment. Similarly, The European Chemical Agency’s Committee for Risk Assessment echoes the EPA’s findings of glyphosate after a 2022 re-examination of the chemical and its effects on humans. The agency concluded that “scientific evidence did not meet the criteria to classify glyphosate for specific target organ toxicity, or as a carcinogenic, mutagenic or reprotoxic substance.” However, a 2015 World Heath Organization finding contradicts EPA and EU findings, categorizing the chemical as “probably carcinogenic to humans.”

Despite the circuit court ruling to re-investigate glyphosate, federal trials over Roundup continue, with Bayer receiving favorable rulings in three recent trials (Clark v. Monsanto, Stephens v. Monsanto, Shelton v. Monsanto). Should Bayer choose to appeal more trial verdicts, SCOTUS may play an integral role in deciding restitution for personal injury plaintiffs. 

Although remedial actions are not admissible evidence in a civil court case, Bayer’s decision to phase-out all glyphosate-based products by 2023 after the recent SCOTUS decisions seems telling.

Christina Grube