Bayer recently announced it would settle all Roundup, dicamba drift and PCB water litigation cases between $10.1 and $10.9 billion. At the same time, the company said this settlement is not an admission of fault, but rather a cost-effective way to end this “distraction.”
“It has been a long journey, but we are very pleased that we’ve achieved justice for the tens of thousands of people who, through no fault of their own, are suffering from non-Hodgkin lymphoma after using a product Monsanto assured them was safe,” said Robin Greenwald, practice group chair, environmental pollution and consumer protection at Weitz & Luxenberg.
Between $8.8 and $9.6 billion of the fund is dedicated to the Roundup settlement. It will cover 75% of the current cases—125,000—and includes set-aside money to handle future cases as well. About $400 million will go to dicamba drift claims and $820 million to the PCB water litigation claims.
“The decision to resolve these cases was driven by our desire to bring greater certainty to the farmers we serve every day,” says Liam Condon, Bayer president of the crop science division. “These, and all our products, bring to growers and other users around the world [the ability] to help them economically and sustainably produce a healthy crop.”
The Roundup settlement includes a number of elements to resolve about 95% of the current litigation. This does not include individual trials such as Johnson, Hardeman and Pilliod, which will continue through the appeals process.
Anyone who participates in the settlement will be required to dismiss their cases or agree not to file in the future. Attorneys for the plaintiff will also advertise the settlement to reach claimants who are eligible for compensation but might not know it yet.
The settlement moves the decision from the hands of a jury to scientists. The class will have a scientific panel review on the safety of glyphosate, and both Bayer and the class members are bound by the outcome of the panel. They’ll check to see if glyphosate does cause non-Hodgkin’s lymphoma and at what exposure levels.
“This is not a case-by-case review of each individual [claimant],” says Darren Wallis, Bayer Crop Science vice president of communication. “This is actually a review of the science and a review of the safety profile of this molecule.”
If the science panel finds there is no causal relationship between Roundup and non-Hodgkin’s lymphoma, class members will be barred from claiming otherwise in future litigation against Bayer. They expect the panel’s determination to take several years.
The settlement agreement also provides funds up to $1.25 billion to support research on treatment of non-Hodgkin’s lymphoma.
Regardless of the settlement, farmers will continue to have access to glyphosate products for the 2020 season and into the foreseeable future, Wallis assures.
“Corn farmers rely on glyphosate as an integral and essential part of their weed management, no-till and soil health plans,” said Kevin Ross, National Corn Growers Association president, in a recent statement. “We respect Bayer’s decision to settle many of these case in order to move forward as a company while keeping glyphosate available to the farmers who rely on it.”
The National Association of Wheat Growers (NAWG) offered similar sentiment, citing the need for glyphosate and other crop protection chemicals to promote farmer livelihood.
“Glyphosate, the active ingredient in Roundup, has been on the market for more than 40 years and has undergone some of the most extensive worldwide human health, safety and environmental scientific reviews,” says Dave Milligan, NAWG president.
The $400 million dedicated to dicamba drift litigation settlement covers alleged crop damage for 2015 to 2020 crop years. This will resolve multi-district litigation pending in the U.S. District Court for the Eastern District of Missouri.
“The settlement could not come at a better time for farmers,” said Don Downing, chair of the Plaintiffs Executive Committee. “It will provide much needed resources for farmers in these difficult times and compensate them for dicamba-related losses they have suffered.”
Anyone who wants to be part of the settlement will need to provide proof of damage to crop yields and evidence it was caused by dicamba. Bayer says it expects BASF will also contribute toward this settlement as that company is also named in the pending litigation.
“The Bader Farms peach orchard case is the only one to go to trial and is not included in this resolution. Monsanto [Bayer] and BASF as co-defendants will continue to pursue post-trial motions and an appeal,” says Bill Dodero, global head of litigation for Bayer.
In terms of the future of dicamba, this drift settlement has no relationship with the recent Ninth Circuit ruling that vacated three product registrations. Manufacturers will be seeking reregistration for over-the-top dicamba products for 2020 and beyond, and they anticipate EPA will announce a decision this fall.
“EPA made a decision … that allowed farmers to continue using stocks on hand until the 31st of July,” Condon says. “I think this is an indication of the EPA confidence in the system. We are currently expecting reregistration in the fall.”
One of the issues cited in the recent vacatur of dicamba products was the need for more evidence. With two more years of data to include in the registration process, and for other reasons, Bayer is confident the product will receive approval.
The claims process will begin later this year after 2020 harvest is complete.
Polychlorinated biphenyls, PCB, were manufactured by Monsanto until 1977. The chemical is considered a carcinogen and is banned by EPA at that time.
A total of $820 million will go toward this settlement—$650 to the class action and $170 in separate agreements with Attorneys General of New Mexico, Washington and the District of Columbia. The class action includes all local governments with EPA permits involving water discharges polluted or impaired by PCBs.
“This settlement is a groundbreaking effort to protect and restore the city’s water resources,” said Charles Parkin, Long Beach city attorney, in a statement.
The original lawsuit accused Monsanto of widely contaminating all natural resources and living organisms with PCB chemicals. PCB was marketed as Aroclor and was used in paint, caulking, transformers, coolants, hydraulic fluids, sealants and other products. It causes cancer in humans, kills fish and birds and can endanger wildlife.
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