A federal judge in California has once again turned down an effort to settle potential future cancer claims against Bayer’s Monsanto over it’s Roundup weed killer.
Judge Vince Chhabria rejected the settlement, dealing a major blow to Bayer Monsanto and to those class action attorneys who initiated the proposal, led by Elizabeth Cabraser and Sam Issacharoff.
“The settlement proposed by these attorneys would accomplish a lot for Monsanto,” Judge Chhabria wrote. “It would substantially diminish the company’s settlement exposure and litigation exposure at the back end, eliminating punitive damages and potentially increasing its chances of winning trials on compensatory damages. It would accomplish far less for the Roundup users who have not been diagnosed with NHL – and not nearly as much as the attorneys pushing this deal contend.”
The people covered by the proposed settlement were divided into two groups – a group consisting of Roundup users who have been diagnosed with Non Hodgkin lymphoma (NHL) but who have not yet sued and have not yet hired a lawyer to sue and a second group consisting of people who used Roundup before February 2021 but who have not been diagnosed with NHL.
“The settlement is a package deal,” Judge Chhabria wrote. “The Court has not been asked to approve the deal for one group if the deal is deemed unreasonable for the other.”
“It is unnecessary to evaluate whether the settlement is reasonable for the first group because it is clearly unreasonable for the second group – the Roundup users who have not been diagnosed with NHL. This ruling merely discusses some of the most glaring flaws with the proposed settlement and the plaintiffs’ presentation in support of it.”
“If Roundup users who have not been diagnosed with NHL do not opt out of the class after notice is disseminated, the settlement purports to offer them two primary benefits. First, a medical monitoring program would be available for roughly four years. The program is ostensibly designed to increase the chances that class members’ NHL (if they get it at all) will be diagnosed early.”
“Second, the settlement provides for a compensation fund, which is designed to last roughly four years. If a class member is diagnosed with NHL during that four-year period, they can make a claim to the fund, with a likelihood of receiving somewhere between $10,000 and $60,000 – and in rare cases, up to $200,000.”
“The benefits of the medical monitoring program are far less meaningful than the attorneys suggest. In this MDL, both sides’ experts have testified that NHL has a long latency period, particularly when caused by something like an herbicide – as opposed to a more jarring intrusion on the body, such as chemotherapy. According to this testimony, people can reasonably expect to wait 10 or 15 years after exposure before developing the disease. Moreover, the Court’s understanding is that NHL is primarily contracted by older people – more than half the people with the disease are diagnosed after age 65. Finally, the Court’s understanding from the litigation is that doctors generally cannot perform tests on patients to detect NHL before patients start experiencing symptoms.”
“The motion thus appears to greatly exaggerate the potential benefits of four front-end years’ worth of vaguely described medical monitoring for those without NHL.”
“The benefits of the compensation fund are also vastly overstated for the second group. This is not to say that the proposed medical monitoring program is worthless. As the motion notes, the program would serve the benefit of educating people about how to recognize symptoms of NHL early, thereby increasing their chances of catching the disease before it progresses.”
“The fund is designed to last only four years. It may even be exhausted earlier by claims from people already diagnosed with NHL. Since many people in the second group will likely receive their diagnosis more than four years down the line – with or without medical monitoring – they will not be able to request compensation from the fund. Monsanto has the option to add to the fund and extend its duration with the approval of class counsel and the Court, but there is no requirement to do so, and Monsanto would merely incur a relatively minor ‘exit fee’ if it decided to end the program. Accordingly, the Court cannot assume – and a class member certainly could not assume – that money will be available for longer than four years.”
“In exchange for these tenuous benefits, the proposed agreement calls upon class members to make two major sacrifices. First, although class members retain the ability to sue Monsanto upon diagnosis if they choose to forego compensation from the fund or if the fund has expired, they lose the right to seek punitive damages. Second, in any trial where class members seek compensatory damages, they must stipulate to the admission of the opinion of a seven-member science panel about whether Roundup can cause NHL.”
“It may well be true, as the attorneys pushing this deal asserted at the hearing, that a punitive damages award for a Roundup plaintiff who sues Monsanto 15 years from now is not likely to exceed a 1:1 ratio compared to compensatory damages. But punitive damages would presumably still be available because Monsanto continues to sell Roundup, and it insists on doing so without any real warning label.”
“Moreover, compensatory damage awards in these trials have been quite high. For example, Hardeman’s was roughly $5 million, even though he had made a full recovery from NHL by the time of trial. Thus, even if punitive damages awards consistently fall to levels below compensatory damages in future lawsuits, that’s still a lot of money to be giving up.”
“The attorneys pushing this deal repeatedly intone that it will be difficult for Roundup users who are diagnosed with NHL in the future to get a trial, given the limited capacity of courts and given that many plaintiffs will be ‘in line’ ahead of them. This means, the attorneys imply, that relinquishing the ability to seek punitive damages at trial is no big deal.”
“Surely counsel must know that this misses the most important issue, which is that class members, by waiving punitive damages, would be greatly diminishing the future settlement value of their claims. This is not a situation where the defendant is at risk of going bankrupt, such that only the first set of plaintiffs will be able to recover.”
“Bayer – which recently acquired Monsanto – is a massive, wealthy company, and it continues to make money specifically from Roundup sales. Nor is there any indication that the company will cease its efforts to settle cases. As recently as last week, Bayer stated publicly that it remains committed to settling Monsanto’s Roundup litigation. This is not surprising because the alternative to settling – continuing to lose trials left and right – is not attractive.”
“As for the science panel, on the surface this concession does not seem so great, at least so long as the Court can ensure that the panel’s inquiry is fair and unbiased. But the reason Monsanto wants a science panel so badly is that the company has lost the ‘battle of the experts’ in three trials.”
“At present, the playing field on the issue of expert testimony related to causation is slanted heavily in favor of plaintiffs. Thus, agreeing in advance to admit the opinion of a court blessed panel that might undercut the opinions of the plaintiffs’ experts is a significant concession for the class members – one that could greatly reduce their chances of winning. And again, it would reduce settlement value.”
“These deficiencies are bad enough on their own. But they are exacerbated by the difficulties with effectively notifying people of the right to opt out of the class at the front end. Let’s assume, for argument’s sake, that an opt-out class notice could ever be adequate in a situation like this – that is, class notice that is mostly by advertisement for a massive, diffuse, and largely transient population of people who have not gotten sick and may not even know of their exposure, and therefore have no immediate interest in putting considerable effort into educating themselves on an exceedingly complex settlement agreement. If notice in this situation could ever be adequate, it would need to communicate the settlement’s message very clearly and offer something sufficiently valuable and tangible to make it worth the potential class members’ attention.”
“This settlement, and the proposed program for publicizing it, do not come close to accomplishing that. Indeed, for people who have not been diagnosed with NHL, the notice’s message is so garbled that they are likely to ignore it.”
“Consider the first three sentences of the proposed ‘short form’ publication notice: ‘Exposed to weed killers? You could benefit from a $2 billion settlement. People diagnosed with Non-Hodgkin’s Lymphoma could receive up to $200,000.”
“This might catch the eye of the people in the first group – those who have already been diagnosed. But if you’re trying to grab the attention of someone who has not been diagnosed with NHL, this is not the way to do it.”