Bayer to Appeal Roundup Case to SCOTUS

Bayer CEO Tells Investors Company Hopes to Bring Roundup Litigation to End

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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Bayer AG plans to appeal to the Supreme Court an appeals court ruling on a Roundup case while planning for possible future settlements. (DTN file photo by Pam Smith)

LINCOLN, Neb. (DTN) -- Bayer AG CEO Werner Baumann said the company will appeal to the Supreme Court a $25 million judgement rendered to Edwin Hardeman in a Roundup lawsuit, as Bayer hopes to put the multi-billion-dollar legal battle to rest.

In addition, Baumann told investors during a call on Thursday although the company believes the court will review the case, it is preparing for future Roundup settlements.

Bayer has 30,000 cases still to settle out of what was about 125,000 total cases. The U.S. District Court for the District of Northern California rejected the $2 billion settlement earlier this year, expressing concern it would not adequately address the concerns of families who may later be diagnosed with non-Hodgkin's lymphoma.

Bayer announced several steps it will be taking on glyphosate in the coming years, which includes setting aside $4.5 billion for potential future legal claims and settlements if the Supreme Court does not agree to a review. That would put the total payout of Roundup claims at more than $14 billion.

Baumann said the company would be "very selective" in its settlement approach in the coming months pending a possible Supreme Court review. The Supreme Court receives many hundreds of petitions for review each year and grants review to about 80.

"If the Supreme Court accepts our petition for review, we will not entertain any further settlement discussions thereafter," he said.

NEW ROUNDUP FORMULATIONS

Baumann said Bayer will begin offering new Roundup formulations, replacing glyphosate-based products for residential use -- making up the vast majority of legal non-Hodgkin's lymphoma claims -- beginning in 2023. That action, he said, will not affect agriculture users.

"Let me be very clear that this is exclusively geared at managing litigation risk and not because of any safety concerns," he said.

"I like to stress that none of these formulation changes will affect the availability of glyphosate-based products in the market for professional and agricultural users."

HARDEMAN CASE

In 2019, a jury awarded Edwin Hardeman $80 million in damages after the jury ruled that his non-Hodgkin's lymphoma was caused by his use of Roundup. In May 2021, the U.S. Court of Appeals for the Ninth Circuit in San Francisco upheld the Hardeman judgement. Bayer officials have maintained the Hardeman case could shape how future cases are litigated.

In May, a federal judge rejected Bayer's $2 billion Roundup settlement, and the company responded this week by outlining its legal strategy to investors.

The company said it believes the Hardeman case offers its best chance of receiving Supreme Court review.

"We actually do believe that the U.S. Supreme Court should give strong consideration to accepting our petition to review the Hardeman case and render a positive ruling," Baumann said.

"We believe that the Hardeman case presents important legal topics such as federal preemption; new studies and regulatory rulings prove that science continues to be on our side. This includes a brief filed by the EPA with the U.S. Court of Appeals for the Ninth Circuit in May, in which it affirmed, once again, that glyphosate, 'poses no human health risk of concern,' as well as the most recent review in the EU."

Baumann said the company could face a significant financial upside if the Supreme Court grants a review and rules in Bayer's favor.

"The details provided today on the two scenarios should provide you with comfort that, based on the methodology we have shared, the glyphosate litigation exposure should now be reasonably accounted for and leave significant upsides," he said.

"In the event of a favorable Supreme Court decision on the case, they should also remove the uncertainty and ambiguity that actually has been weighing on the company."

OTHER LEGAL BATTLES OVER GLYPHOSATE

Bayer acquired Roundup brands as part of its $63 billion purchase of Monsanto. Bayer continues to maintain that glyphosate is safe, regularly pointing out the EPA and many other countries' regulatory agencies support glyphosate's continued use.

But during the past few years, Bayer has lost several lawsuits brought by plaintiffs who alleged their use and exposure to Roundup caused non-Hodgkin's lymphoma and other cancers.

EPA reapproved an interim registration of glyphosate in January 2020. The Rural Coalition, Organizacion en California de Lideres Campesinas, Farmworker Association of Florida, Beyond Pesticides and the Center for Food Safety filed a petition for review in March 2020. Those groups asked a federal court to vacate the decision.

Most recently, EPA released a biological evaluation of glyphosate's potential effect on endangered species and critical habitats, finding it was "likely to adversely affect" 1,676 listed species and 759 critical habitats, the vast majority of the species and habitats the agency considered.

The agency's findings mean glyphosate will have to undergo more reviews before its routine registration review, initiated in 2009, can be completed, most likely sometime in 2021, according to EPA estimates on its website.

Todd Neeley can be reached at todd.neeley@dtn.com

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Todd Neeley