The makers of Roundup earned a big victory last week when a Philadelphia jury ruled in favor of Monsanto in the latest trial centered on the weed killer.
Bayer, which purchased Monsanto in 2018, says that it has now won 15 of the most recent 22 Roundup lawsuit trials, which involve cases filed over claims that the product is tied to the development of non-Hodgkin lymphoma.
“While we have great sympathy for anyone who suffers a loss or injury, the science proves that Roundup is safe to use and not carcinogenic,” The company said in a statement following the trial.
But Bayer has also seen its fair share of losses in a group of lawsuits that have had several twists and turns over the last year.
A plaintiff won a $78 million verdict in the Philadelphia court just last month after claiming that Monsanto failed to warn about the risks of cancer tied to the use of its weed killer. Another plaintiff was awarded a $2.25 billion verdict in January that was later reduced to $400 million in a similar trial.
The success of future Roundup lawsuits may hinge in part on the details of each individual case.
Differences in Details of Roundup Lawsuits May Play a Role in Outcomes
While the thousands of active Roundup lawsuits share many similarities, they are not identical.
Judith Womack, the plaintiff in the case that Monsanto won last week, began using Roundup in 2015 before she was diagnosed with cancer in 2019, according to Law.com. That relatively short period of use differs from other plaintiffs who have won trials recently.
William Melissen, who was awarded a nearly $80 million verdict in a Roundup trial last month, had used Roundup regularly for nearly 30 years before his diagnosis. John McKivison received the $2.25 billion verdict after using the weed killer for two decades.
Womack’s limited use of Roundup, when compared to those more successful cases, could have contributed to the final outcome of the trial. A University of Washington study from 2019 that focused specifically on people who have been “highly exposed” to Roundup found that their risk of cancer increased by more than 40%.
A Potential Trip to the Supreme Court Looms
Following last week’s verdict, Bayer said it plans to file a petition “in or before 2025” for the Supreme Court to review Roundup cases. This would potentially allow the court to decide the fate of thousands of Roundup lawsuits during the 2025–26 session.
This is a strategy that Bayer has been open about pursuing for some time, as a Supreme Court ruling could wipe out much of the litigation against the company.
While individual trials have gone to both sides over the last year, the issue that Bayer hopes to bring to the Supreme Court is based on federal preemption, where a federal law takes precedence over and supersedes a state law. This is a key topic that has seen divided results among courts.
Roundup lawsuits may be based on state failure-to-warn claims, arguing that Monsanto should have warned its customers of the potential cancer risks tied to its product.
But Bayer has argued that a statute called the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) preempts those state claims. According to the Harvard Law Review, the company has pointed to the fact that FIFRA includes a provision stating that states cannot dictate labeling requirements that are different or beyond the scope of the EPA-approved federal label.
The EPA-approved label for Roundup does not include a cancer warning, with Bayer arguing that this means lawsuits that rely on state claims should be preempted.
Until recently, this argument has not seen success in court, with both the Ninth and Eleventh Circuit Courts determining that FIFRA does not preempt state claims.
But in August, the Third Circuit Court of Appeals contradicted those previous decisions, siding with Bayer and ruling FIFRA does, in fact, preempt those state claims. This created a circuit split between the courts, setting the stage for it to eventually make its way to the Supreme Court.
That court’s ruling would play a massive role in deciding the future of Roundup lawsuits.
As of this month, there are more than 4,300 Roundup lawsuits pending in multidistrict litigation.