Round Up Verdict Update – Mass Tort Report by Attorney Jeff Keiser.
In the past few years, the Roundup litigation has shifted from the federal MDL to state courts, with varying success.
There are still more than 4,000 cases sitting in the MDL, but nothing exciting is happening over there. On the other hand, state court litigation just got very exciting.
Just Monday, a jury in Philadelphia returned with a jaw dropping $2.25 billion verdict against Bayer and its subsidiary, Monsanto.
“Note – we’ve begun offering roundup case acquisition with full medical records included that confirm diagnosis” – Craig Alinder
What is Really Likely?
As this isn’t in the MDL, we can’t really call this a bellwether, even if lawyers from coast to coast will use this verdict to assess other cases.
Lawyers may drool at the idea of a billion-dollar verdict, but we are still a long way from the finish line. Let’s just step back and consider the reality – this total is likely to be reduced on appeal, even if it will remain a heavy reminder to the defendants that there will be a price to be paid.
To be clear, the Philadelphia award was for $250M in compensatory damages, and $2 billion in punitive damages, far exceeding what the SCOTUS is likely to allow.
I’m not trying to take anything away from what the jury did, only to note that this is not likely the final amount that defendants will pay in the case.
The number is even more shocking when you consider this case centered around a single plaintiff, a 49-year-old that was exposed through his work as a landscaper.
Last November, another massive verdict ($1.5b) relating to three plaintiffs was reached in Missouri. And in 2019, a California court awarded more than $2b to a couple that had used Roundup for more than 30 years.
That award was later reduced to $87 million, an amount ultimately allowed by the Supreme Court. So, these multi-billion-dollar verdicts are eye opening, but they are not likely to be the amount paid after appeals.
The Average Win
Another issue in these cases is the streaky nature of the verdicts. There have been 18 trials across four states, and plaintiffs have not been victorious in all or even the majority of them. In fact, 2018 and 2019 were plaintiff years, with three wins. 2021 and 2022 were defense years, with a streak of eight straight wins.
Since then, the results have been more mixed, ranging from a defense win to the $2.25 billion for a single plaintiff yesterday.
Overall, the average plaintiff win on a Roundup case, so far, has paid out a solid average of $450 million.
The Plan To Appeal
Defendants, unsurprisingly, plan to appeal. Their press release following yesterday’s verdict noted: “We disagree with the jury’s adverse verdict that conflicts with the overwhelming weight of scientific evidence and worldwide regulatory and scientific assessments, and believe that we have strong arguments on appeal to get this verdict overturned and the unconstitutionally excessive damage award eliminated or reduced.”
I don’t expect a reversal on appeal, but I also think the punitive damages award may be excessive under Supreme Court jurisprudence.
40k More To Go
Even if there are a mere 4,000 in the MDL, there are still nearly 40,000 of these cases in state courts across the country.
Monsanto has already settled nearly 100,000 cases for about $11 billion, but after these plaintiff wins, I think they’re going to need to find some more cash if they want to make this go away.
With more trials scheduled for 2024, Bayer and Monsanto are going to need to write some pretty large checks.
Craig H. Alinder, Vice President