Bayer Loses in Court Again

by | Oct 4, 2021 | Products Liability

The third time wasn’t a charm for the pharmaceutical company, as a California court of appeals upheld an $86 million judgement in a Roundup-cancer case.

The company’s lawyers filed this appeal in February 2020. They claimed that the verdict was against the preponderance of the evidence. But the justices upheld the jury’s verdict. “We respectfully disagree with the Court’s ruling as the verdict is not supported by the evidence at trial or the law. Monsanto will consider its legal options in this case,” the company said in a statement. “We continue to stand strongly behind the safety of Roundup, a position supported by four decades of extensive science and the assessments of leading health regulators worldwide that support its safe use,” it added.

Despite the rhetoric, company officials have little confidence that these legal maneuvers will succeed. Bayer also announced that it was setting aside an additional $4.5 billion to augment an $11.6 billion settlement fund.

In a related development, Bayer said it would stop selling Roundup to home gardeners in the United States. The company insisted that it made this move “exclusively to manage litigation risk and not because of any safety concerns.” Noncommercial users make up roughly 90 percent of recent Roundup claimants.

Glyphosate and Cancer

Glyphosate is one of the world’s strongest herbicides. Monsanto scientists developed the chemical in the early 1970s, and the first bottles of Roundup became available to residential and commercial customers in 1974. Sales were slow until the company introduced a line of genetically-altered seeds which greatly improved Roundup’s efficiency. Within a few years, around 90 percent of the soybeans, cotton, and corn produced in the United States came from these genetically-altered seeds, and Roundup was the largest-selling herbicide in the world. 

Farmers and gardeners are not the only people who use Roundup. Municipalities around the world also purchase significant amounts of this weed killer. City workers often spray this chemical in sidewalk crevices and cracks where weeds often grow. About a quarter of the chemical sprayed usually runs off and ends up in the local water supply.

Roundup’s success prompted pharmaceutical giant Bayer to acquire the company. However, Bayer did not just buy Monsanto. It also bought the lawsuits which were already beginning to pop up. As of August 2021, there are over 30,000 such matters pending around the country. The plaintiffs in these cases are mostly agricultural workers who were exposed to significant amounts of glyphosate, a chemical which has been linked to non-Hodgkin’s lymphoma and other forms of cancer.

In its various appeals, Bayer’s lawyers have pointed out that the scientific consensus is that there is little if any link between glyphosate and cancer. That might be true. But in civil court, an elevated risk of injury could be sufficient to establish a defective product claim, as outlined below.

So, especially if you or a loved one ever worked around soybeans, cotton, or corn, and you got a bad diagnosis from a doctor, talk to a Lexington personal injury attorney about your legal options. An attorney may be able to obtain the money you need to successfully fight your disease.

Defective Products

Generally, manufacturers are strictly liable for the injuries their defective products cause. Negligence or malice are usually only relevant for damages purposes. There are basically two types of product defects:

  • Design Defect: Glyphosate in Roundup is usually a design defect. Monsanto scientists intentionally included this very powerful ingredient in Roundup. Apparently, these scientists were not concerned that a substance which was so deadly to unwanted organic matter might also be deadly, or at least harmful, to other organic matter as well, such as the human body.
  • Manufacturing Defect: Many chemicals and other products appear to be perfectly safe on the drawing board. But issues develop during the manufacturing and/or distribution process which make them unsafe. Zantac is a good example. This heartburn medicine is quite safe, as long as it’s ingested almost immediately. If it sits on a store shelf or inside a medicine cabinet too long, it becomes dangerous.

Frequently, the failure to warn of a known risk, as opposed to the risk itself, could serve as a basis for a successful damage claim. Legally, product manufacturers have a duty to effectively warn consumers about all known risks. Frequently, companies ignore this responsibility. They are afraid that such warnings might decrease sales and therefore decrease their profits.

The unforeseeable misuse doctrine is usually the only affirmative defense to these claims. Such misuse must be extreme, like using rubbing alcohol to clean an infant’s face.

Lack of evidence is another matter. Although the burden of proof is very low in these claims, this defense is often effective. In most product defect claims, the company calls a small army of experts to the stand who invariably testify that the product in question is as safe as mother’s milk.

In these situations, jurors must assess the credibility of these witnesses. Appeals court judges are very reluctant to second-guess these assessments, as Bayer’s lawyers are discovering.

Damages in a defective product claim usually include compensation for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering. Additional punitive damages are normally available as well, if there is clear and convincing evidence that the company negligently ignored a known risk.

Injury victims are usually entitled to substantial compensation. For a free consultation with an experienced personal injury lawyer in Lexington, contact the Goode Law Office, PLLC. We do not charge upfront legal fees in these matters. #goodelawyers