A federal appeals court on Friday upheld a $25 million judgment and trial verdict finding Bayer’s Roundup caused a California resident’s non-Hodgkin lymphoma, dealing a blow to the chemical company’s hopes of limiting its legal risk over the weed-killer.
The 9th U.S. Circuit Court of Appeals in San Francisco rejected Bayer’s argument that lawsuits like Edwin Hardeman’s never should go to trial because federal pesticide laws barred allegations that the company failed to warn of Roundup’s cancer risks.
“It’s a slam dunk for plaintiffs,” said Leslie Brueckner, an attorney with Public Justice who helped with Hardeman’s appeal. “This proves these claims are viable in the tort system.”
Bayer did not immediately respond to a request for comment.
A jury in 2019 awarded Hardeman $5 million in compensatory damages and $75 million in punitive damages in the first federal case to have gone to trial. The punitive award was later cut to $20 million and the appeals court also upheld the reduction.
Friday’s ruling was the first by a federal appeals court in a case linking Roundup and cancer and Bayer had said the case had the potential to “shape how every subsequent Roundup case is litigated.”
Bayer has said that decades of studies have shown Roundup and other glyphosate-based herbicides that dominate the market are safe for human use.
The company has argued that glyphosate was approved by the Environmental Protection Agency as safe for humans and that regulators prevented it from adding a warning to the product’s label.
But the company has spent years trying to contain the litigation.
Bayer has committed $9.6 billion to settle 125,000 claims over Roundup. On Wednesday it will seek preliminary approval for a $2 billion proposed deal to resolve future claims by the millions of consumers and farmworkers who have been exposed to Roundup but have not gotten sick.
“The timing couldn’t be more perfect,” said Brueckner, referring to Wednesday’s hearing. “I doubt it was accidental.”
Proponents of the agreement to create a framework for resolving future cases had argued that consumers would benefit from the deal because they might lose the right to sue Bayer if a federal appeals court sided with company.
“This decision wipes that argument off the table,” said Brueckner.
Consumer advocates and personal injury attorneys have objected to the $2 billion agreement on future cases because they argue it wrongly limits rights to sue.
The agreement proposed giving those exposed to Roundup free medical exams and, if they develop non-Hodgkin lymphoma, compensation worth up to $200,000 as well as free legal advice.
The agreement would pause all litigation for four years and prevent consumers from seeking punitive damages. But anyone rejecting the compensation would still retain the right to sue for compensation once the litigation pause expired.
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