Bayer has filed a petition with the Supreme Court requesting the review of a Ninth Circuit Court of Appeals decision that upheld a $25 million award to a plaintiff who alleges exposure to Roundup caused his Non-Hodgkin lymphoma.
In the petition, Bayer said federal pesticide law preempts state-law claims such as those brought by Edwin Hardeman, who alleged Monsanto failed to warn him and other consumers of the risk of contracting cancer from exposure to Roundup. The Ninth Circuit ruled in Hardeman’s favor in May.
Bayer said the Environmental Protection Agency has concluded “such a cancer warning would be false and therefore prohibited” by the Federal Insecticide, Fungicide, and Rodenticide Act.
“The petition underscores that consistent regulatory assessments in the U.S. and worldwide, and the overwhelming weight of scientific evidence, support the conclusion that glyphosate-based herbicides are safe and not carcinogenic,” Bayer said in a news release. “In light of the EPA’s approval of the Roundup label without a cancer warning, any state-law failure-to-warn claims premised on such warning would plainly conflict with federal law and thus are preempted.”
The Ninth Circuit decision “contravenes [the Supreme Court’s] holding that any state labeling requirement not ‘genuinely equivalent’ to a FIFRA labeling requirement is preempted,” the company said in the petition, citing Bates v. Dow Agrosciences, a 2005 Supreme Court decision.
Bayer had said it would file the petition in an attempt to influence the outcome of NHL cases that have so far not been settled as part of litigation brought by tens of thousands of plaintiffs across the country. The company estimates about 96,000 of 125,000 current claims have either been settled or were ineligible for settlement, leaving about 30,000 currently unsettled claims that could be affected by a Supreme Court ruling, as well as any future claims filed by consumers with prior exposure to Roundup.
In a recently released “five-point plan” for dealing with litigation, Bayer said once it filed the petition, it would be selective in deciding which cases to settle and would stop discussing settlements if the Supreme Court grants review. Last month, the company said it would stop selling Roundup products in the lawn and garden market in an effort to stem further litigation.
“Supreme Court review and reversal of the Ninth Circuit’s flawed ruling is a major factor in this plan and likely will determine whether the litigation will largely end (if the court issues a favorable decision on a cross-cutting issue like federal preemption) or the company implements a claims process to resolve claims over the next 15 years (in the event of an adverse outcome),” Bayer said in its release.
The company noted it booked “an additional gross provision” of $4.5 billion before tax and discounting in the second quarter of fiscal 2021, “to reasonably account for future litigation exposure in the event of an adverse outcome.” Bayer expects the Supreme Court to decide in the next six months whether it will grant a review of the Hardeman case.
“Although some Roundup cases have settled, this one has not, and there remain tens of thousands of filed and unfiled claims that have not settled,” Bayer said in the petition. “Moreover, the district court recently rejected a broad proposed settlement of potential future claimants. Accordingly, the issues here remain live and important for thousands of pending cases, as well as any cases filed in the future.”
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The Ninth Circuit’s interpretation of when state-law claims are preempted is too restrictive, resulting in situations where “state requirements are preempted only if inconsistent with federal requirements at a high level of generality,” Bayer said in the petition.
But that reading of the law “creates divergence among the courts of appeals, threatening considerable confusion because courts routinely look to decisions interpreting similar statutory language when determining the scope of express preemption provisions.”
If the Ninth Circuit is correct, “then EPA’s determination that a warning label is unnecessary (or, as here, false and misleading) would never be preemptive. The result would be the very proliferation of divergent state and federal labeling requirements Congress sought to avoid.”
Bayer also is challenging the court’s decision on the admissibility of expert testimony under the standard set by the Supreme Court’s 1993 decision in Daubert v. Merrell Dow Pharmaceuticals. The Ninth Circuit, it said, adopts a more “liberal” approach to the admission of such testimony than other circuits do.
The district court in Hardeman said “the Ninth Circuit requires courts to ‘typically admit’ opinions that ‘lean strongly toward the “art” side of the spectrum,' as opposed to science, and permits ‘a wider range of expert opinions (arguably much wider)’ than other circuits,” Bayer said in the petition, quoting U.S. District Judge Vince Chhabria’s decision.
The Ninth Circuit “affirmed the admission of expert opinions that glyphosate can cause [NHL] lymphoma and caused respondent’s cancer specifically, even though those opinions rested on little more than subjective intuitions,” Bayer said. Glyphosate is the active ingredient in Roundup, the most widely applied herbicide in the world.
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