Bayer Raises White Flag in Roundup Lawsuits

| Jul 8, 2020 | Injuries, Products Liability

The Germany-based pharmaceutical giant agreed to pay $10 billion to settle current claims and compensate future victims.

When Bayer acquired Monsanto in 2018, it thought it was buying a successful company with a huge-selling herbicide. Instead, it bought several thousand personal injury lawsuits. These victims alleged that glyphosate, Roundup’s active ingredient, caused cancer, and that the company failed to warn consumers of the risk.

Bayer said the settlement covered about 75 percent of the lawsuits currently pending, and that some money would be set aside for future victims. The settlement does not contain an admission of liability.

Roundup, Gylphostate, and Cancer

Scientists discovered glyphosate almost by accident in the 1950s. By the 1970s, its effectiveness as a weedkiller, and thus its commercial potential, became apparent. Barely more than twenty years later, Roundup was the most-used agricultural herbicide in the world, and the second-most-used noncommercial herbicide in the world.

The increased use brought some of Roundup’s health risks into the spotlight. The evidence linking glyphosate to cancer, mostly lymphoma, has always been mixed. But in civil court, the burden of proof is only a preponderance of the evidence (more likely than not). 

Typically, Monsanto calls two or three experts to the stand who testify that Roundup is as safe as mother’s milk. The victim/plaintiff calls two or three experts who state the opposite. Jurors must assess the credibility of these witnesses, and typically, their opinion is the only one that counts. If jurors believe the victim/plaintiff’s evidence is slightly more credible, that’s that.

Gylphostate’s danger is not the only issue. Monsanto failed to warn customers about the increased risk. A disclaimer in tiny print which stated “this product might cause cancer” probably would have sufficed. But the company failed to take this most basic protective action. So, it intentionally put other people at risk in order to protect its own profits. That’s why punitive damage awards are so high in the trials which have been held so far.

Thousands of Roundup cases are pending, and there have only been three trials. However, Monsanto clearly saw the writing on the wall.

The Discovery Rule

Lymphoma’s latency period could be as long as eleven years. So, there are many Roundup victims who do not know they are sick. The $10 billion settlement protects these victims. More on that below.

These victims are entitled to a share of this money if they can prove Roundup caused their cancer and/or Bayer/Monsanto failed to warn them of the risk. The proof issues were discussed above. The statute of limitations is a different matter.

Generally, the statute of limitations is two years for mass tort claims. (The applicable statute of limitation varies greatly depending on the jurisdiction of the case, so consulting a mass tort lawyer is highly recommended). So, by the time lymphoma symptoms appear, the statute of limitations has expired.

However, these victims might still be able to advance their claims, because of the discovery rule. The statute of limitations clock does not start ticking until victims:

  • Know they full extent of their injuries, and
  • Connect their injuries with a certain product or practice.

Assume Bill used Roundup around the house until 2008. In 2019, his lymph nodes became swollen, he lost weight, he suffered from chills, and he experienced other lymphoma symptoms. A doctor diagnosed him in 2020. In 2022, he ran across an article about the link between Roundup and cancer.

Under these facts, Bill has until 2024, two years after he knew about the illness and the link, to bring a claim for damages.

Further complicating matters, cancer is one of the most commonly misdiagnosed conditions in Kentucky. Delayed diagnosis does not alter the discovery rule. Delayed diagnosis simply keeps the clock from ticking even longer.

Future Damage Claims

Procedurally, a future damage claim could involve a new lawsuit or a claim for settlement fund money. A Lexington personal injury attorney can successfully handle either one.

Monsanto’s settlement does not include an admission of liability. So, a future lawsuit is not a “slam dunk.” The same defenses mentioned above would be in play. However, given the settlement and the low burden of proof, a successful outcome is more than possible.

Typically, this successful resolution involves an out-of-court settlement. Lengthy and expensive court battles benefit no one in the long run. So, your attorney must be more than a good litigator. An attorney must also be a good negotiator. That means negotiating from a position of strength, knowing when to compromise, and knowing when to stand firm.

Many lawsuit settlements involve Fund Administrators. These individuals are notorious stingy. The more money they award, the more their influence wanes. So, an attorney must present compelling evidence of liability. Otherwise, the victim might have to settle for less.

Roundup use is associated with chronic illness. For a free consultation with an experienced mass tort lawyer in Lexington, contact the Goode Law Office, PLLC. Home and hospital visits are available.