Bayer’s bold plan to block all future Roundup liability with science panel comes up short

Bayer has been pursuing a bold plan to clear for itself a liability-free way to sell Roundup weed killer in the future despite a series of jury verdicts finding it’s been causing cancer. Bayer had been pushing a settlement that would have wrapped up all future claims — including by people who haven’t gotten cancer yet. That plan is in limbo now after a federal judge overseeing the case expressed skepticism about it on multiple fronts.

Key to the plan was Bayer’s appeal to science. The settlement would have established a panel of scientists who would decide whether Roundup’s key ingredient, glyphosate, causes cancer. On its website, Bayer said the settlement “will return the discussion about the safety and utility of glyphosate-based herbicides back to where it belongs – to the scientific and regulatory arena and to the full body of science.”

It’s not surprising Bayer would say the dispute ought to be kept exclusively in the domain of regulatory agencies and bespoke science panels, because Bayer has been losing badly in the courts.

Judge Vince Chhabria, the federal judge in Northern California who is presiding in the case in which Bayer has been seeking the comprehensive settlement, signaled he was unlikely to give his blessing to the plan. In the context of an order denying a deadline extension, Judge Chhabria expressed doubt the proposed settlement would benefit future victims:

“Thus far, judges have been allowing these cases to go to juries, and juries have been reaching verdicts in favor of the plaintiffs, awarding significant compensatory and punitive damages. 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?”

Judge Chhabria also doubted whether it was permissible under the law and constitution to take the fact-finding away from the courts and give that function over to a panel of scientists:

“Even with the consent of both sides, it’s questionable whether it would be constitutional (or otherwise lawful) to delegate the function of deciding the general causation question (that is, whether and at what dose Roundup is capable of causing cancer) from judges and juries to a panel of scientists.”

After the skepticism expressed by the judge, Bayer retreated from the proposed settlement with the aims of reworking it.

The case is In re: Roundup Products Liability Litigation (MDL No. 2741). Court documents can be found on a court webpage maintained for the case.

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