Bayer Files Petition with US Supreme Court Over Roundup LitigationBy
Bayer, through its subsidiary, Monsanto, has filed a petition for a writ of certiorari with the US Supreme Court requesting that the Court review a federal appeals court decision in a product-liability case over Roundup, its glyphosate-based herbicide.
Bayer had gained the product as part of its $63-billion acquisition of Monsanto, an agrochemical and seed company, in 2018. The acquisition of Monsanto made the company’s crop-protection business the largest piece of Bayer, surpassing its pharmaceuticals business, which had been the company’s largest business. In 2020, the company’s crop-protection segment posted revenues of EUR 18.84 billion ($22.97 billion), its pharmaceuticals segment of EUR 16.74 billion ($20.41 billion) and its consumer health business of EUR 5.45 billion ($6.64 billion).
In May (May 2021), the 9th US Circuit Court of Appeals in San Francisco upheld a lower court’s decision that awarded compensatory and punitive damages to a plaintiff, Edwin Hardeman, in a federal product liability case involving Roundup over claims that the product caused cancer (non-Hodgkin’s lymphoma) and that the company failed to warn of such risks.
Bayer is petitioning the US Supreme Court to review the federal appeals court decision based on what the company cited as errors in federal preemption and expert evidence standards. The company is arguing that with the US Environmental Protection Agency’s approval of the Roundup label without a cancer warning, any state-law failure-to-warn claims premised on such a warning would conflict with federal law and thus are preempted. Bayer is arguing that state-law failure-to-warn claims should be preempted on the grounds of both express preemption (because they are preempted by a specific statutory provision) and conflict preemption (because the state-law claims necessarily conflict with federal requirements).
Bayer is also seeking that the US Supreme Court review the case on the grounds that the admission of expert testimony departed from federal standards, thereby enabling the plaintiff’s causation witnesses to provide unsupported testimony on the principal issue in the case, Roundup’s safety profile.
Last month (July 2021), Bayer set aside an additional $4.5 billion to address potential claims over Roundup and updated a plan for closing litigation. The company said that the US Supreme Court’s review of the federal appeals court decision is a major factor in this plan and likely will determine whether the litigation will largely end (if the Court issues a favorable decision on a issue such as federal preemption) or the company implements a claims process to resolve claims over the next 15 years (in the event of an adverse outcome).
Bayer says it expects the US Supreme Court to decide in the next six months (as reported on August 16, 2021) whether it will grant review of the Hardeman case.