Posted on Mar 20, 2019, 7 p.m.
An American jury in California has found Bayer AG’s glyphosate-based Roundup weed killer to have caused cancer, representing a significant blow to the company eight months after another jury issued a $289 million verdict over similar claims in a different case.
However, the unanimous jury decisions in San Francisco federal court was not a finding of liability for the cancer of plaintiff Edwin Hardeman; liability and damages will be decided by the same jury in a second trial phase.
The company denies allegation that the product causes cancer, saying it is “disappointed with the jury’s initial decision”. Last year Bayer acquired Monsanto the longtime maker of Roundup for $63 billion. After this second court ruling shares in Germany’s Bayer’s fell more than 12%, the biggest intraday loss in 16 years removing some 8 billion euros off its valuation. Despite the company’s denials this would appear to be 2-0 for the plaintiffs, it will clearly not be helpful for the overall payout calculus and resolution of the litigation, and a long line of thousands of other similar lawsuits waiting for their day in court.
Roundup/Glyphosate is the world’s most commonly used weed killer, and it was the first glyphosate based weed killer but it is no longer patent protected and other versions are now available.
The company is “confident phase two trials will show the conduct of Monsanto has been appropriate, and should not be liable for Mr. Hardeman’s cancer”. This case is only the second of some 11,200 lawsuits against Roundup to go to trial within the USA. A California man was awarded $289 million after a state court jury found Roundup caused his cancer, which was later reduced to $78 million and is on appeal.
Bayer claims “the jury was overly influenced by plaintiff’s lawyers allegations of corporate misconduct and did not focus on the science”. US District Judge Vince Chhabria called such evidence “a distraction from the scientific question of whether glyphosate causes cancer.” As such he split the case into 2 phases: one to decide causation; and the other to determine potential liability and damages.
Under this order the second phase trial will only take place if the jury found Roundup to be a substantial factor in causing Hardeman’s cancer, which it now has. Another trial is scheduled for May, followed by another this year; all three cases will be split into causation and liability phases under Chhabria’s order.
Markus Manns cautions it is too early to read anything into individual rulings in court of the first instance, and the outcomes for the appeals hearings will be what is important to Bayer, adding that the company “should not yet engage in settlement talks.”
The European Chemicals Agency and other regulators suggest glyphosate is “not likely to be carcinogenic to humans”. However, and this is the multi-billion dollar catch, the World Health Organization’s cancer arm reached a far different conclusion in 2015 and classified glyphosate as being “probably carcinogenic to humans.”
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