A federal judge has posed some pointed questions for a hearing Wednesday where he will consider whether to grant preliminary approval to a Bayer-proposed settlement for a so-called “futures class” of plaintiffs who contract non-Hodgkin lymphoma.
“Why is it in the interest of the class to agree in advance to the admission in future trials of the conclusions of a court-appointed independent science panel, given how well the trials have been going for plaintiffs without such a panel?” U.S. District Judge Vince Chhabria asked in one of the questions he filed Tuesday and wants to be addressed in the Wednesday hearing, scheduled to start at 10 a.m. PST.
The hearing comes less than a week after a federal appeals court upheld a $25 million verdict for plaintiff Edwin Hardeman. In a crucial part of the ruling, the court found that Hardeman’s state-law tort claims were not pre-empted by the Federal Insecticide, Fungicide, and Rodenticide Act.
Chhabria addressed that issue, as well, asking whether the proposed settlement clearly states that even if the Supreme Court rules in the future that Bayer is correct on preemption, class members would still be able to opt out and sue for compensatory damages.
Counsel for the class, which has yet to be certified, proposed $2 billion for people who were exposed to Roundup as of Feb. 3. Attorneys for the plaintiff class claim it will “save lives” and result in “unprecedented benefits,” including more than $1.3 billion in compensation, a $210 million medical monitoring program, free legal services, and funding for research into new treatments for NHL.
“The class plan is intended to be one part of a holistic solution designed to provide further closure to the Monsanto Roundup litigation,” Bayer said when it announced the agreement Feb. 3.
But there has been strong opposition to the proposal from other lawyers and Public Justice, a nongovernmental organization, who note the proposal would not allow class members who “opt out” of the agreement after a stipulated four-year litigation delay to sue for punitive damages.
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In addition, “Any class member who opts out at the back end and files their own case against Monsanto must stipulate to the admissibility of the findings of a ‘Science Panel’ that … is likely to issue a finding” that Roundup does not cause NHL, “a finding that it will be difficult to effectively rebut,” Public Justice said in its brief.
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