An Urban's Rural View

As the executives of the German company Bayer were doing their due diligence on Monsanto a couple years ago, they must have skipped the refresher course on the propensities of American juries. Since acquiring the maker of glyphosate, they've been taking an expensive version of that course.

In late March, a California jury awarded an $80 million judgment against Bayer in favor of a man with non-Hodgkin lymphoma who had used glyphosate on his 56-acre exotic animal refuge for nearly 30 years. Last year another California jury awarded $287 million to a groundskeeper with cancer who got drenched with glyphosate when his sprayer broke. A judge later reduced that award to $78 million. But that's not the end of the matter. There are 11,200 lawsuits in the pipeline. (https://www.nytimes.com/…)

Bayer probably assumed juries would be persuaded by the 800 studies it says have shown glyphosate to be safe. Or by the assurances from bodies like the U.S. National Institutes of Health, the European Commission, the World Health Organization and the Food and Agriculture Organization that glyphosate doesn't pose a cancer risk.

Surely, Bayer must have thought, juries wouldn't take the word of the International Agency for Research on Cancer, which thinks almost everything (988 out of 989 substances studied) causes cancer at some level of exposure but never says what the level is. (https://www.dtnpf.com/…)

So far, though, plaintiffs' lawyers have had a clearer understanding than Bayer of what evidence juries will find persuasive. On the websites of tort lawyers inviting plaintiffs to hire them to sue Bayer (like this one -- https://www.consumersafetywatch.com/…) the IARC report is front and center.

Understand, please, that the plaintiffs in these cases are enduring terrible, painful, life-threatening illnesses through no fault of their own. Naturally, everyone sympathizes with them. What kind of ogre would not? If you or I were on juries hearing their cases, their stories would tug at our heartstrings, too. They are sympathetic clients.

A lawyer with a sympathetic client may take a long-shot case on a contingency-fee basis, often as much as a third of the winnings -- or nothing if the case is lost. My contracts professor in law school was spending nights in the library searching for support for his argument that the drafters of his state's constitution hadn't really meant what they said when they wrote that the state could not be sued.

The prof's client was a beautiful young woman who had been rendered a paraplegic after driving her car into a tree. If he could only get past the constitutional obstacle and get her case before a jury, he was confident he'd win by arguing that the highway her car slipped off had been badly maintained. He was sure the jury would award big damages, providing him with a big contingency fee.

Faced with a sympathetic plaintiff, juries don't always demand bullet-proof evidence. Weak evidence may be enough to convince them that an unsympathetic big company or an unsympathetic government was to blame.

When the cause of cancer is the issue, the evidence is frequently weak, according to a Wall Street Journal op-ed by a cancer researcher. For even assuming the plaintiff was exposed to a carcinogen, the actual risk of cancer would depend on a complicated web of factors including dose, duration and inherited genetic mutations. (https://www.wsj.com/…)

"For glyphosate," the researcher wrote, "the scientific evidence is decidedly mixed. A direct link to cancer is still debatable, but even if one accepts the high end of the reported risks the effects are, at best, modest" -- not even a tenth as much as the risk from smoking.

If Bayer had taken that refresher course, one of its textbooks could have been its own unhappy experiences with American juries. In 2005 it paid $1.1 billion to settle 3,085 suits over its now-defunct cholesterol drugs Baycol and Lipobay. (https://www.drug-injury.com/…) Later it spent more than a billion settling thousands of suits over a birth-control pill. (https://topclassactions.com/…)

There are many strengths to our jury system. There are studies showing jurors get cases right nearly 90% of the time -- and that in most cases the judge would have reached the same conclusion. Technical evidence, though, often befuddles juries. "Jurors interviewed after a 1984 asbestos liability trial, for example, thought anyone exposed to asbestos for a certain period would develop asbestosis, which was contrary to the medical testimony they had just heard." (https://slate.com/…)

Like it or not, though, the jury system isn't going to change. Juries will continue to decide cases like the ones against Bayer. When acquiring an unsympathetic company with an unsympathetic product, a company must be aware that's one of the risks.

Did Bayer assess that risk with eyes wide open? Owing to the lawsuits, Bayer's stock is down 40% in the last 11 months. The company's executives nonetheless insist that acquiring Monsanto was a good idea. (https://www.nytimes.com/…)

Bayer may have thought the upsides outweighed the downsides. For many farmers, after all, there are few real alternatives to glyphosate. Indications are that despite the suits, commercial farmers continue to want to use it. (https://www.wsj.com/…) In the end, the profits might exceed the payouts to plaintiffs.

Still, you have to wonder. Massachusetts Democratic Senator Elizabeth Warren says if she's elected president she will review and possibly reverse "anti-competitive" mergers like the Bayer-Monsanto deal. Given how the juries are treating Bayer, it wouldn't be surprising if at least some Bayer execs were contributing to her campaign.

Urban Lehner can be reached at urbanize@gmail.com

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