As world focuses on Covid, Bayer pushes billions in Roundup settlements

herbicide-185x300Although Covid-19 is disastrous for people around the globe, Big Pharma is finding advantage in the infection: Bayer, a pharmaceutical and agricultural products’ giant, is on the brink of what would be an $8 billion-plus settlement of an estimated 85,000 lawsuits involving the familiar weed killer Roundup.

Bayer has taken a $39 billion hit to its market value due to the Roundup suits, which the German-headquartered conglomerate took on when it acquired St. Louis, Mo.-based Monsanto for $63 billion.

Bayer executives, analysts say, have wanted to resolve the big numbers of current suits while courts across the country have closed due to the pandemic, preventing not only more cases from being filed but also others from resolution. The company has lost a handful of suits, but they carried a big, collective, initial price tag — $2.4 billion. That sum has been slashed on appeal to $191 million and the company says, no matter if it settles thousands of other cases, it will continue litigating the adverse decisions.

The dispute and potential settlement, Bloomberg news service reported, focuses on a big divide:

“The settlements are designed to resolve claims that Roundup, whose active ingredient is the chemical glyphosate, caused non-Hodgkin’s lymphoma in some users. The company denies that Roundup or glyphosate cause cancer, a position backed by the U.S. Environmental Protection Agency. Still, after Bayer’s court losses spurred a surge in new suits, investors such as Elliott Management Corp., urged the company to seek a comprehensive settlement.”

Kenneth Feinberg, the noted mediator, has been involved, and the news service reported this of the settlement plan, which has won oral approval by key parties:

“Under terms of the deals, Roundup will continue to be sold in the U.S. for use in backyards and farms without any safety warning, and plaintiffs’ attorneys will agree to stop taking new cases or advertising for new clients … Because some of the Roundup cases are consolidated before U.S. District Judge Vince Chhabria in San Francisco, he may need to approve the settlement of those before him … To be sure, with tens of thousands of cases still unresolved, there’s no guarantee the company will remain within the $8 billion it has budgeted for filed and backlogged lawsuits. Bayer complicated matters last month by backing out of some deals and demanding lawyers take less because of losses tied to the Covid-19 pandemic. That could prompt more lawyers to take their cases out of the settlement.”

Bloomberg also reported this:

“Bayer has said it will earmark $8 billion to resolve all current cases, including those held in abeyance, according to some of the people familiar with the settlements. The deals so far involve many of the strongest claims against the company …  It’s unclear how much would go to those who have now settled and what’s left for the holdouts. Another $2 billion will be set aside to cover future suits linking the weed killer to non-Hodgkin’s lymphoma … The deals also limit eligibility for payments to non-Hodgkin’s Lymphoma cases and those where plaintiffs died of that specific cancer over the last decade, according to a Bayer term sheet reviewed in January by Bloomberg News. Roundup users that blame the product for causing their multiple-myeloma cancers get nothing under the settlement.”

In my practice, I see not only the harms that patients suffer while seeking medical services, but also the damage that can be inflicted on them and their loved ones by dangerous and defective products, including risky and harmful drugs. Claims involving tens of thousands of harmed individuals in the civil system can be difficult to navigate, and they may not be fully satisfying to those seeking not only remedy but also justice. We’ll need to see if this deal goes through and the details of it.

That said, it is Big Pharma-craven to see Covid-19’s illnesses and deaths as a moment to bolster that share price, shore up corporate liquidity, and please buyers on bourses around the globe. Consumers just saw Johnson and Johnson seize similarly on the public’s coronavirus distraction to try to minimize its challenges with its famed and now problematic baby powder, yanking it from North American shelves.

For defendants Bayer and J&J and their big numbers of claimants, resolution of cases may be a suitable outcome. For consumers, however, the settlements or moving products away (for who knows how long) is unsatisfying, notably for giant questions it raises about product safety and oversight. Federal officials staunchly supported J&J until reporters began digging, showing how regulators should have known about talc contamination with cancer-causing asbestos. Regulators keep telling the public, like a dumpy beat cop, “move on, there’s nothing to see with Roundup.” If the settlement becomes a done deal, however, common sense says consumers have 10 billion reasons to ask more tough questions about use of the weed killer so common in all our households and farms where our food is raised.

Patrick Malone & Associates, P.C. listed in Best Lawyers Rated by Super Lawyers Patrick A. Malone
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