Bayer Goes Back to Supreme Court Over Roundup

by | Apr 25, 2022 | Firm News

The German pharmaceutical company reiterated some old arguments, and raised some new ones, in its most recent Supreme Court petition.

Previously, a California jury awarded a couple over $2 billion in punitive damages. The couple used Roundup for decades and both of them developed cancer. Bayer’s lawyers argued that since the U.S. government declared Roundup was safe, injured people cannot sue and obtain damages. Lawyers made a similar legal argument in a previous petition involving another case. This time, Bayer’s legal team also argued that high punitive damages which exceed compensatory damages are unconstitutional.

Company officials have promised to set up a settlement fund if its lawyers lose these Supreme Court appeals.

The Civil Appeal Process

For both plaintiffs and defendants, civil appeals are relatively easy to file. However, they are almost impossible to win. That’s one of the reasons many Lexington personal injury attorneys don’t quickly settle cases. 

As one of my law school professors used to say, litigants usually only get one trip to the salad bar of justice. Insurance companies usually hide the best evidence in these claims as long as possible. So, if a case settles too quickly, maximum compensation based on the best evidence might be unavailable. It’s almost impossible to reopen a closed case on that basis alone.

Usually, appeals courts only hear cases if there was a major error in the process which substantially affected the outcome or the judge went off the rails and abused his/her discretion at trial.

Courts have consistently held that a litigant is entitled to a fair trial, but not a perfect trial. Juror misconduct is a growing problem in today’s Fayette County trials. Jurors must decide cases based solely on the evidence presented during trial. But almost anyone can Google a person, a lawyer, an accident, or anything else and learn additional details not presented in court. A jury misconduct appeal is only successful if a party proves misconduct occurred and that misconduct substantially affected the outcome (e.g. the miscreant juror was a holdout juror).

Supreme Court appeals are a bit different. In addition to erroneous lower court decisions, the Supremes may hear any case that presents a novel question of law or settles a dispute between the circuits. Student loan forgiveness is a good example of both. This question is a hot-button issue and different circuits have different rules regarding the discharge of student loan debt in bankruptcy.

The Science Behind Mass Tort Claims

An untold number of people used Roundup for decades, especially after Monsanto began selling genetically-altered seeds that maximized the weed killer’s effectiveness. But these people didn’t know that the weed killer was also a people killer. That’s the basic definition of a mass tort: a dangerous or defective product that injures thousands of people, or millions of people.

It’s very difficult to trace cancer to Roundup or any other cause. Since the burden of proof is low in civil cases, many lawyers take shortcuts and rely on limited scope evidence. If Johnny ate ice cream at a party and Johnny threw up, the ice cream might have made him sick. But, anything else that Johnny ate could have also made him sick. So, this evidence probably wouldn’t hold up in court, especially once the defendant’s “expert witnesses” tear into it.

Broad spectrum evidence takes longer to develop. But it’s much more effective in court. If a Lexington personal injury attorney locates three other children who also ate ice cream and threw up at the party, a connection is much easier to establish.

Likewise, if one or two people used Roundup and got cancer, that’s not very convincing. But thousands of people have used Roundup and become seriously ill. It’s hard to deny that there may be a connection. Government approval is pretty much irrelevant.

The Reasoning Behind Punitive Damages

To you and me, a large amount of punitive damages might seem like an unnecessary penalty. But large companies are a lot different.

The infamous 1994 McDonald’s hot coffee case is a good example. A New Mexico woman spilled hot coffee on herself. After hearing the evidence, a jury awarded her $2.7 million in punitive damages. At least, that’s what the headlines said at the time.

But a closer look makes things clearer. At the time, McDonald’s coffee was served at 190 degrees. That’s just short of boiling hot. The company received hundreds of complaints about the high temperature and ignored them all. To get the company’s attention, the plaintiff’s lawyer asked for $2.7 million in punitive damages. That’s how much money the fast food giant made in one day of coffee sales, not one day of overall sales. From this perspective, that calculation is arguably a reasonable amount of punitive damages.

The bottom line is that high punitive damages get a large company’s attention in a way that nothing else could.

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. Virtual, home, hospital, and after-hours visits are available.