War of Words Escalates in Roundup Appeal

| May 28, 2021 | Products Liability

As the lawsuits against Bayer/Monsanto wind their way through the justice system, things are starting to get interesting.

Lawyers for plaintiffs argued that Bayer’s settlement with a Georgia doctor was basically a “pay-to-appeal scheme.” The company is determined to fight an adverse jury verdict all the way to the Supreme Court if necessary. So, a clause in this agreement imposes a $100,000 penalty on the doctor if he drops his appeal. According to the plaintiff’s lawyers, Bayer didn’t disclose this fact, and so “the court should reject this brazen manipulation of our judicial system.”

IN response, Bayer’s lawyers said the firm “has been completely transparent about its desire to appeal Roundup failure-to-warn cases on federal preemption grounds, and this settlement, which the plaintiff voluntarily agreed to, is an appropriate path for such an appeal.”

Dangerous Consumer Products

More than likely, there is a dangerously defective product in your medicine cabinet, pantry, or garage at this very moment. If that product defect causes injury, the manufacturer could be strictly liable for damages. There are basically two types of product defects:

  • Design Defect: Roundup’s high glyphosate levels are a design defect. Such herbicides must be strong enough to hurt weeds yet not strong enough to hurt people. That’s a very small target which Monsanto apparently missed. Furthermore, designers might have failed to fully account for ambient glyphosate particles in the soil and in the air.
  • Manufacturing Defect: NDMA (N-Nitroso-dimethylamine) contamination in consumer products like Zantac is an example of a manufacturing defect. When certain chemicals are stored for long periods at room temperature, this incredibly dangerous substance appears. Researchers routinely use NDMA injections to create tumors in laboratory animals. There have also been some high-profile NDMA poisoning incidents in recent years.

In this context, strict liability means that dangerous product victims must only show a connection between the product and their injuries, at least in most cases. Typically, a Lexington personal injury attorney looks for illness spikes to establish this relationship. For example, if an abnormal number of people in a certain area develop cancer, there was probably a common cause, and that cause was probably in the soil or water. 

The burden of proof is only a preponderance of the evidence (more likely than not). Therefore, showing a probable connection could be enough to sway jurors.

Here’s the problem. Companies like Bayer routinely call experts to the stand who testify that the substance in question is safe. In 2015, a Bayer expert told a French television station that “You can drink a whole quart of [glyphosate] and it won’t hurt you.” The interviewer offered him a glass and he refused to drink it. “I’m not stupid,” he declared. Nevertheless, these experts are highly trained, highly experienced, and usually highly persuasive.

So, attorneys often rely on a failure to warn theory. This argument basically states that the company knew about the elevated risk and didn’t sufficiently warn customers about it. Therefore, there’s less of an emphasis on the illness-product connection.

The Appeals Process

Most injury claims settle out of court. In fact, Bayer has already agreed to set up a multi-billion-dollar settlement fund which covers many of these claims. But frequently, product manufacturers test the waters at trial. 

One reason is that many companies feel they have a brand name to protect. Bayer wants to be known as the company you can turn to when you have a headache or other problem. They don’t want to be the company which sold a cancer-causing herbicide. Of course, way back in the day, Bayer sold heroin and touted it as a children’s cough remedy. But that’s the subject of another blog.

Furthermore, trials limit the company’s exposure. The more claims it can defeat in court, the less money it must pay.

Successful appeals are rare. After jurors consider the evidence, most judges hesitate to overturn their verdicts, even if the verdict is a head-scratcher. Essentially, an appellant (appealing party) must show that the:

  • Judge made a legal mistake that constituted an abuse of discretion, or
  • Evidence couldn’t possibly support the jury’s verdict.

An abuse of discretion usually means that the judge was off the rails. Examples include allowing a clearly unqualified witness to testify or barring a qualified witness. Usually, the appealing party must also show that the error affected the trial’s outcome.

Lack of evidence appeals often involve jury misconduct or jury tampering. Once again, the error must usually affect the trial’s outcome. 

The bottom line is that a successful appeal requires more than a passionate disagreement with the outcome. A party must identify a factual or legal error that materially changed the result.

Defective product and failure-to-warn cases are often quite lengthy. For a free consultation with an experienced personal injury lawyer in Lexington, contact the Goode Law Office, PLLC. Home, virtual, and hospital visits are available. #goodelawyers