All you have to do is Google a phrase like “Roundup Settlement” and you will get plenty to read. Some articles suggest a massive settlement agreement may be announced any day, while another post may trumpet: “Parties Still Far Apart on Roundup Settlement.” Who is right? The truth is, aside from a very few people, like chief mediator Kenneth Feinberg, no one can say for sure. But this much is true: multi-billion-dollar settlements in massive product liability cases take a long time to complete.

What We Know

So this is what we know as of today: Bayer AG and Monsanto, the two corporate defendants, have been in negotiations with the plaintiffs’ executive teams for several months to attempt a settlement that is reasonable and fair. Multiple media outlets, including The New York Times, are reporting that both sides are discussing a settlement that could involve tens of thousands of plaintiffs and may reach $10 billion dollars. A few media reports indicate the sides are getting closer to a settlement. And if so, that is good news. Still, even though the Wall Street Journal has recently reported that “draft settlement terms” have been reached between defendants and several larger plaintiffs’ law firms, the article also stated that “[a] formal deal hasn’t been signed and could yet fall apart.” So be very cautious about optimistic reports of settlements. Often the final, smaller details are the hardest to hammer out.

And another word of caution: even if a settlement is announced later today, it will take several months before the infrastructure is in place to process the first settlement payouts. Each settlement requires rounds of careful review and paperwork, and this takes a lot of time. The best practice is to hire a lawyer you trust and wait for him or her to provide you with real updates on settlement.

Finally, there is this awful coronavirus. As I write this we are just beginning to see how destructive the pandemic will be to our national health, to employment, to markets, and to our ability to sustain normal business practices. This virus is going to delay everything, from the NBA season to the Roundup Settlement.

The Takeaway:

Be patient with the Roundup settlement news you read on the Internet. Although I am optimistic things are moving in a positive direction, product liability cases always take longer to resolve than anyone originally predicts. I realize each plaintiff has suffered a serious illness and deserves compensation now, but often the rush to report a rumor of settlement can inflict additional emotional damage if talks later break down. It’s always best to be patient and pace yourself. These things are marathons.

How is Roundup Harmful?

Glyphosate is the key active ingredient in Roundup, a weedkilling compound developed by Monsanto. Unfortunately, by 2008 glyphosate was identified as a risk factor for the development of non-Hodgkin lymphoma. In a May 2014 study, the International Agency for Research on Cancer determined that glyphosate increased the risk of developing non-Hodgkin lymphoma. By March of 2015, that organization stated that glyphosate should be considered a “probable carcinogen.” It works this way: exposure to glyphosate can occur through skin or eye contact or through inhalation. Studies suggest that once glyphosate enters the body, it acts as an antibiotic that kills bad bacteria but also good bacteria. This weakens the body’s immune system and can damage cellular DNA. Often, cellular damage occurs in the mouth and throat.

Non-Hodgkin lymphoma is a cancer that starts in the white blood cells and affects the body’s entire lymphatic system, the system responsible for protecting the body against disease and infections. This cancer can begin in any part of the body where lymphatic tissue is found, such as lymph nodes, the spleen, bone marrow, tonsils, and digestive tracts. Cancer that begins in the lymphatic system can spread quickly.

If you used Roundup often and later developed non-Hodgkin lymphoma, feel free to give me a call: (919) 830-5602. Either way, be patient and good luck.

Note: Bayer AG and Monsanto deny the connection between the use of Roundup and the increased risk of developing cancer. Photographs used in this post are for illustrative or editorial purposes only and are not intended for any commercial use.

Last week news media outlets reported that Bayer AG and Monsanto had offered to settle United States Roundup cases for an amount up to $8,000,000,000. That’s eight billion dollars. If true, it would be welcome news, or at least a good start, as there are currently over 18,000 cases filed against the companies. These lawsuits allege that extended exposure to Roundup caused plaintiffs to develop non-Hodgkin lymphoma (NHL), a serious cancer that can spread to lymph nodes throughout the body. For plaintiffs afflicted with a serious illness like NHL, news that a global settlement has been achieved is always welcome, because these plaintiffs need compensation as soon as possible, and years of expensive litigation is not good for anyone (except maybe defense lawyers).

The news reports of settlement flashed across the Internet, as such things do, perhaps encouraged by recent statements made by Bayer’s CEO that the company would consider settling on reasonable terms if all United States cases could resolve. Further, Bayer and Monsanto recently lost a Roundup case where a California jury awarded a couple $2 billion dollars for the non-Hodgkin lymphoma they both contracted after using Roundup for years. You can read about that $2 billion Roundup verdict here.

Despite all that, on Friday Mediator Ken Feinberg issued a statement that “Bayer has not proposed paying $8 billion to settle all the U.S. Roundup cancer claims. Such a statement is pure fiction,” and that “[c]ompensation has not even been discussed in the global mediation discussions.” So there you have it. At this point I would recommend you listen to Mr. Feinberg’s statement, as he is a central figure in the Roundup settlement talks.

Still, it is also true that mediators must always control the flow of information. When dealing with two entrenched, adversarial sides, it is vitally important for the mediator to control the narrative. If one side believes (correctly or not) that it is getting the upper-hand in a complex negotiation, it can become emboldened. And an emboldened side can wreck what could have been a successful mediation. (I have seen it in mediations in my individual cases.) So, even if progress toward settlement is being made, I fully understand how Ken Feinberg would not want reports of this progress to be made public. After all, nothing is accomplished until both sides agree and sign the documents. And I believe that nothing has been signed as yet.

I would say it is also a positive sign for a Roundup settlement that Ken Feinberg is involved and has been named Special Master. Mr. Feinberg oversaw the compensation fund for victims of the September 11th attack and other large scale litigation involving thousands of injured plaintiffs. In fact, if you want to learn more about Ken Feinberg, you can check out The Neutral, a podcast by Michael Lewis where Ken Feinberg discusses his career resolving thousands of lawsuits and injury claims.

For now there is no Roundup settlement and the litigation marches on. The primary allegation in the lawsuits is that the key ingredient in Roundup herbicide, glyphosate, is not safe for human use. Monsanto has used glyphosate in Roundup herbicide since the early 1970s. In 2008, glyphosate was identified as a risk factor for developing non-Hodgkin lymphoma. Other studies followed which conclude that glyphosate should now be considered a “probable human carcinogen.”

A person can be exposed to glyphosate through personal use, such as using Roundup repeatedly on lawns or as part of a job (say, on a golf course or work as a landscaper). An individual can also be exposed to this carcinogen through proximity to Roundup use. For example, if an person lives near a farm where Roundup use is frequent, this exposure can potentially lead to non-Hodgkin lymphoma.

If you or someone you know has suffered from non-Hodgkin lymphoma and was exposed to Roundup, please call me today to discuss your potential case: (919) 830-5602. I can help. Either way, good luck to you.

The makers of Roundup just lost another big case, this time involving a couple who used the weedkiller and were later diagnosed with non-Hodgkin lymphoma. This month, a jury in California awarded Alva and Alberta Pilliod more than two billion dollars. The jury found that Monsanto and Bayer acted negligently and failed to warn the plaintiffs of the dangers of using Roundup. The key active ingredient in Roundup, glyphosate, has been shown in studies to increase the risk of developing non-Hodgkin lymphoma (NHL). The jury then awarded Mr. Pilliod $18 million in “compensatory damages,” which is a money award for actual injuries suffered. The jury awarded Ms. Pilliod $37 million in compensatory damages, for a total of $55 million in compensatory damages. Finally, the jury awarded the Pilliods $1 billion each in punitive damages. The final jury award was $2,055,000,000. A truly astonishing number, and a major rebuke to the makers of Roundup.

The Pilliods testified that they used Roundup on their property for more than thirty years, from 1975 and 2011. They were diagnosed with NHL in 2011 and 2015.

Punitive damages play an important role in consumer protection. Punitives are awarded by a jury to punish or deter a bad-acting company, and similarly situated companies, from engaging in similarly awful conduct. Punitive damages are not common, and are usually awarded when a jury decides that the defendants had prior knowledge of a serious issue or problem and ignored this knowledge to the serious injury or detriment of other people.

The idea behind the deterrent effect of punitive damages goes something like this:

CEO of Company A: “Hey look, Company B is making billions of dollars selling that glyphosate-based weedkiller. We have to get in on that dangerous-chemical weed-killing market . . .” COO of Company A: “But wait a minute. Company B is being sued by thousands of people who say glyphosate caused their non-Hodgkin lymphoma. And just last week a jury awarded $2 billion in punitive damages to a couple who used Roundup and were later diagnosed with cancer.” CEO: “That’s not good. So selling this product could harm people’s lives, plus it could end up costing our company a huge amount of money, and we would look horrible in the media? Maybe we shouldn’t sell harmful chemicals to millions of people and tell them it’s a safe product, the way Company B did.”

Anyway, that is how it is supposed to work. Unfortunately, the allure of massive profits often overcomes the fear of punishment or even the motive to do the right thing.

Even worse, in many states, including my state of North Carolina, business-friendly legislatures have placed limits on the amount of punitive damages that must be paid. In North Carolina for example, no matter what amount a jury awards in punitive damages, the trial judge is required to reduce the punitives award to three times the amount of compensatory damages awarded (or a flat $250,000, whichever is greater).

If the Pilliod case had been tried in North Carolina, Mr. Pilliod’s punitive damages award would have been reduced by $946,000,000, and $889,000,000 would be stripped from Mrs. Pilliod’s award. The jury in California decided to send a loud message to Monsanto and Bayer that their corporate behavior was reprehensible, and to punish them by awarding two billion to two cancer-stricken plaintiffs; yet in “tort reform” states the legislatures insert their own, “better” judgment and announce, “we politicians, who did not sit through this trial and know nothing about the facts of this case, will decide how much punitive damages to award these people. In this case, we’ve decided to strip $1.835 billion from the award made by this jury to this cancer-stricken couple.”

Fortunately, the Pilliods live in California, without draconian tort reform laws. Still, Monsanto and Bayer have announced they will appeal the verdict, and the money award will likely be reduced eventually. Still, it was a big win for the Pilliods and for other victims of Roundup.

Currently there are more than 13,000 lawsuits pending against Monsanto and Bayer. Just yesterday, the federal judge handling the Roundup multidistrict litigation in California appointed Kenneth Feinberg to serve as Special Master to develop a plan to resolve the thousands of Roundup lawsuits against Monsanto and Bayer. You may remember that Feinberg oversaw the compensation fund for victims of the September 11th attack. The parties will meet shortly to discuss a potential framework for resolution of the Roundup cases.

Plaintiffs in these cases allege that the defendants not only sold a dangerous and unsafe product, but also manipulated research to suggest that glyphosate was safe for human use when the actual studies showed that it could cause cancer.

Monsanto and Bayer have now lost three straight jury trials over Roundup weedkiller. The next Roundup trial is scheduled to start in August in St. Louis County, Missouri.

If you used Roundup for an extended period and were later diagnosed with non-Hodgkin lymphoma, give me a call to discuss further: (919) 830-5602.