As part of an agreement to settle more than 120,000 pending Roundup cases, Bayer submitted a proposed settlement to United States District Court Judge Vince Chhabria, in early February of 2021. The proposal would create a $2 billion dollar settlement fund to compensate Roundup users who have developed (or develop in the future) non-Hodgkin’s lymphoma after exposure to the product. According to CBS News, compensation will be provided to qualifying class members at varying levels between $5,000 to $200,000.
The fund will also be used for other measures, such as establishing programs for legal assistance, non-Hodgkin’s lymphoma testing, and other outreach efforts. Under the proposed plan, the $2 billion will be provided over the course of a four-year period, during which the parties can agree to extend.
Judge Chhabria questioned the legality of a prior settlement plan that Bayer proposed last June which envisioned creating a panel of scientists who would rule on the viability of claims. The judge questioned the legality of having a panel of scientists determine claims rather than a court or jury.
Under the revised deal, anyone who does not submit a claim during the four-year period would be able to sue in court, according Elizabeth Cabraser, an attorney for the proposed class. She also said anyone diagnosed with non-Hodgkin’s lymphoma who does not like their compensation offer under the class plan can go to the court system and try for a better result.
The current plan also proposes the creation of an advisory science panel to examine whether Roundup causes cancer. The science panel’s determinations, according to the proposed settlement, can be used as evidence in court. Whether making the panel’s opinion advisory will satisfy the Court’s concerns remains to be seen.
While agreeing to pay billions to settle claims, Bayer still vehemently denies that Roundup causes cancer, alleging that decades of studies have shown that glyphosate is safe. Bayer’s stock has been battered by the litigation and a bleaker profit outlook. Last year, the group announced 9.25 billion euros in impairment charges on agricultural assets and shocked markets by predicting a decline in core earnings in 2021 due to decreased demand by farmers.
Unfortunately, Roundup is still widely used by farmers across the United States and Brazil, particularly with crops that are genetically engineered to withstand its herbicidal effect. Shockingly, under the proposed deal, Glyphosate will remain on the market.
There is still no consensus as to whether Roundup and glyphosate are safe. In 2015, the World Health Organization classified it as “probably carcinogenic to humans,” while the EPA determined otherwise. However, more recently, the EPA found that glyphosate has” likely adverse effects on endangered species”. As a result, more reviews will be needed before its registration review. Bayer has agreed to seek permission from the Environmental Protection Agency (EPA) to provide a reference link on labels so consumers can find scientific studies on the weedkiller.
For some claimants, the proposed settlement might provide assurances that if they develop cancer from Roundup use in the future, they will receive some form of compensation. However, the monetary ranges offered in the settlement pale in comparison to the compensation that some of the plaintiffs in these cases have received in the past few years. Also, if approved by the court, the right to claim punitive damages will be eliminated. Punitive damages has been a large aspect of recovery for cases that have proceeded to trial so far. Removal of the right to claim punitive damages will likely have a detrimental effect on recoveries by future plaintiffs.
Whether or not the Court will approve the proposal remains to be seen.
If you or a loved one has non-Hodgkin’s lymphoma, including its various subtypes such as chronic lymphocytic leukemia, B-cell lymphoma, hairy cell leukemia, lymphocytic lymphoma and others, after regular exposure to Roundup usage, please contact the attorneys at Lacy Katzen LLP for a free consultation. Delay in pursuit of a claim may preclude a recovery.
