Last week, in Monsanto v. Durnell, the Supreme Court eliminated the long-established right of people to hold pesticide companies accountable in state courts when they fail to warn consumers that their products may cause cancer or other diseases.
In a 7-2 decision, the Court’s majority sided with Monsanto – now Bayer – in holding that people who contract cancer from using a pesticide are preempted, or prohibited, from suing manufacturers on the grounds of the pesticide maker’s failure to warn them of cancer risks if the Environmental Protection Agency (EPA) has not required a cancer warning in approving the pesticide.
The Durnell case is one of tens of thousands of similar cases in the lower courts where cancer-stricken plaintiffs are suing Monsanto, arguing that its flagship pesticide Roundup caused their non-Hodgkin lymphoma cancer.
Failure to warn claims are one of several state law based claims in these actions. The ruling is likely to make it more difficult or block similar pending lawsuits seeking compensation for cancer caused by Roundup or other pesticides, and potentially bar future comparable cases.
The Center for Food Safety (CFS), the leading legal nonprofit working on food and agriculture issues in the U.S., filed a brief to the Supreme Court in the case on behalf of a broad array of nonprofit public interest stakeholders representing farmers, farmworkers, medical professionals, consumer protection advocates, and conservationists.
“Overturning decades of well-settled law, the Supreme Court eliminated one way the public held pesticide corporations accountable for their products’ harms,” said George Kimbrell, legal director at the Center for Food Safety. “But the fight is far from over. EPA’s regulation of pesticides just became all the more vital to protecting the public health and public interest. We will continue to hold EPA accountable when it does not. And States and other governing bodies have other robust roles. The Roundup cancer cases are a telling sign that people are fed up with corporations poisoning their health and environment and want to choose a different future for their food. This decision, while tragic, is a clarion, galvanizing call to continued action: Americans need to continue speaking truth to power and demand their representatives are protecting their health, not corporations’ profit margins.”
Carey Gillam is editor in chief at The New Lede and author of The Monsanto Papers: Deadly Secrets, Corporate Corruption, and One Man’s Search for Justice (Island Press, 2021) and Whitewash: The Story of a Weed Killer, Cancer, and the Corruption of Science (Island Press, 2017).
Gillam has been following the trials against Bayer/Monsanto closely.
What impact will the Supreme Court decision have on the litigation?
“That depends on who you ask,” Gillam told Corporate Crime Reporter in an interview last week. “Bayer is celebrating this ruling because the company believes that this will put an end to the lawsuits that are still outstanding. They believe that without the failure to warn claims, the lawsuits become much more difficult for the plaintiffs to prevail – and that plaintiffs are much more likely to settle and that people will be less likely to sue them in the future. They are very happy.”
“And on the day of the ruling, Bayer’s stock shot up 17 percent. So investors are happy, they say this is good news for pesticide companies.”
“There are a number of plaintiffs attorneys who say – we have lost failure to warn, but we still can sue on other grounds – that the company was negligent, they didn’t design their products properly – it’s more dangerous than can reasonably be expected.”
“They are holding out and saying they can make other claims. But certainly this ruling limits the ability of consumers to hold companies accountable.”
It was telling in the article you wrote recently about the fallout from this Supreme Court decision. You say that several plaintiff firms have spent the last few months directing their clients to agree to settlements with Bayer in advance of the Supreme Court ruling in fear of a decision favoring the companies. That would indicate that the plaintiffs’ firms are not as confident as they appear to be.”
“From what I’ve seen attending a lot of these trials and reading the transcripts and writing a book about this, the failure to warn claim is something that is foundational to much of this litigation. It’s easy for juries to understand. Here is the science, there is abundant scientific research out that shows a connection, that shows that at least it’s possible. You have the WHO classification. Why didn’t the company put that on the product, like a tobacco warning label? That resonated with jurors. I have interviewed several of them.”
“When you take that away and start arguing the technicalities of the design defect claim, it does whittle away at the ease with which juries understand these cases. It’s very costly for these law firms to bring these cases to trial. Many of the lead law firms spent millions of dollars before they even set foot in a courtroom to take these cases to trial. But they were rewarded with hefty punitive damages. If you chip away at the large amount of money they can make, they will be a lot less likely to take these cases on. They are going to move on to something where they can make a lot more money.”
“It was a savvy move by Bayer to get this to the Supreme Court. Many people believe that this was a heavily politicized ruling. The dissenting voices – Gorsuch and Brown Jackson – make some good points about the nuances of the law and the language and say it’s an inaccurate reading of the language in FIFRA.”
“Bayer is currently holding out for a settlement of the class action. They are inviting people to put aside the current litigation and to agree not to sue in the future and participate in the settlement.”
Give us the ballpark of these 170,000 cases. How many have gone to trial, to verdict? How many have settled? What are they settling for?
“It’s a mixed bag. The vast majority of the cases have been resolved. Bayer estimates that maybe 50,000 to 60,000 claims may still be outstanding. It could be lower.”
“You did have some really high profile punitive damages in the billions of dollars and hundreds of millions of dollars. Some plaintiffs did lose. Bayer prevailed at trial in many cases as well. But overall, the company has paid over $11 billion toward these cases. And now they are offering another $7.25 billion to settle the class action lawsuits.”
“And this is how these mass tort cases work. You take cases to trial. You establish what the damage awards are going to be, what the winning versus losing track record is going to be and then you move toward a settlement. And that’s where we are now.”
How many cases have gone to trial?
“I would have to guess – maybe 20 or 30?”
What is the difference between the class action and individual cases?
“There was a multi-district litigation set up to oversee the Roundup litigation. It’s very different from a class action. These are individual cases. These are individual cases that are handled, tried, disposed of on an individual basis. They go through multi-district litigation for pretrial stuff – pretrial motions, discovery, expert witnesses – so that those things don’t have to happen 170,000 times.”
“You have one judge in California. And he has overseen this since its inception. When the cases go to trial, they typically go back to their home court. And that is where they are tried.”
“In the class action, everyone is put together in one bucket. The class action settlement is everyone who is suing now, wants to sue now, or may develop cancer and want to sue in the future. They would all be placed in this class action. There are tiers of different payouts that these people would receive. And if the class action settlement is resolved, that would settle all of these cases.”
“This class action was Bayer and a handful of plaintiffs attorneys who got together and said – we’re going to agree on a settlement that will put this to bed. And these attorneys were going to be paid $600 million or so. And Bayer was going to get these plaintiffs to settle.”
“And this class action settlement has been very controversial. It’s structured unusually. Many people look at it as sort of a sweetheart deal for the plaintiffs attorneys. The plaintiffs themselves are very likely to get maybe a few thousands dollars each.”
“Judge Vince Chhabria, who is overseeing the multi-district litigation, called this class action settlement a ‘filthy’ deal. He has a lot of problems with it. He thinks it’s very unfair. But it’s not within his jurisdiction. The class action settlement has been filed in Missouri and is going before a Missouri judge who, so far, has given it quick preliminary approval.”
There must be some bitterness between plaintiff lawyers on this.
“There is a lot of animosity, certainly. The lawyers who have led on the Roundup litigation, who put it together, who spent years and years gathering the experts and going through the pre-trial hearings and then actually trying the cases and getting large verdicts – they are not part of the class action settlement. They did not put it together. It was a group of lawyers who were much less involved and had much less experience, who communicated with Bayer and put this deal together.”
If the class action case is settled, does that end all of the multi-district litigation cases?
“It depends on if the plaintiffs have opted out. At this point, there is a hearing scheduled for July 9 on this case. We will know more about how many people are opting in or out. Bayer has taken the position that if enough plaintiffs don’t agree to this settlement, they could walk away from it. They very much see this as a way to put at last the vast majority of the cases behind them.”
It seems like a collusive class action.
“Everybody was waiting to see what happened with the Supreme Court ruling. The decision does chip away at what arguments can be made in a lawsuit. You have the lawyers who didn’t want to opt into the class action settlement – they now have to factor the Supreme Court decision into their decision on whether to opt in or out of the class action. You have plaintiffs who have cancer and who have been fighting this. Do they want to take a little bit of money now and be done with it? Do they want to still take their chances in court? These are all of the things that people are trying to decide right now.”
“And we are hearing criticisms of the class action from the Judge and from plaintiffs attorneys. They see this deal as bad for plaintiffs and really good for the company and really good for the attorneys who are cutting the deal.”
Senator Cory Booker wants to introduce legislation that would overturn the Supreme Court’s decision. What are the chances of that becoming law? And the Make America Healthy coalition and Congresswoman Paulina Luna are involved with this.
“Chellie Pingree as well. She is the only who has introduced legislation so far. It would amend FIFRA to undo the Supreme Court ruling and to state that this pre-emption does not exist. Booker was looking to add an amendment to the farm bill that would have a similar effect.”
“It’s always difficult to go up against powerful lobbyists in Washington, D.C. And the agricultural industry is one of the most powerful. You do have this factor of the MAHA movement and the really mad moms who are promising to storm Capitol Hill and make this a mid term election issue. The forces are gathering.”
What are you looking at next?
“I’m looking at the paraquat litigation. There is a similar MDL in paraquat. It’s a weedkiller. People are alleging that it causes Parkinson’s disease. It’s smaller than the Roundup litigation. It’s newer than the Roundup litigation. But it is going down the same path.”
“The judge in the MDL – Judge Nancy Rosenstengel – is trying to induce people to agree to a settlement with Syngenta that plaintiffs lawyers say is pitiful and is a terrible deal. And they don’t think that their client should take it. And the judge is trying to force these people with Parkinson’s disease to undergo great scrutiny if they don’t agree to the settlement. She wants these people who don’t want to agree to the settlement, who want to go to trial – she wants them to be deposed and meet with a special master.”
“They will have to undergo questioning and meetings because they refuse the settlement offer. I just find that highly unusual and questionable for a judge to put a finger on the scale to such a degree in favor of a settlement. I want to write about that.”
[For the complete q/a format Interview with Carey Gillam, 40 Corporate Crime Reporter 28(13), July 13, 2026, print edition only.]