Bayer is reportedly considering dropping signature product as litigation costs mount and company fails in effort to obtain legal shelter from lawmakers
BY: RUDI KELLER
Missouri Independent
German chemical giant Bayer received no relief from runaway litigation costs associated with Roundup herbicide Tuesday when the Western District Missouri Court of Appeals upheld a $611 million judgment that its product causes cancer.
The decision, in a case involving three plaintiffs who sued in Cole County, is one of the reasons the company, which acquired Roundup as a product when it merged with Monsanto, in 2018, is considering dropping the product entirely. The company faces 67,000 lawsuits claiming the main ingredient, glyphosate, causes non-Hodgkin lymphoma, with many of those cases awaiting trial in St. Louis County, where the company has its Bayer Crop Science headquarters.
The company failed to win passage of a bill intended to shield it from litigation in Missouri. The bill narrowly passed the House but lobbying missteps, including a campaign targeting some of the most conservative members of the state Senate, doomed it. The company did win passage of similar legislation in North Dakota and in Georgia.
In November 2023, a Cole County jury awarded $1.6 billion to three plaintiffs who claimed their cancer was caused by glyphosate exposure while using Roundup. Cole County Circuit Judge Daniel Green reduced the $500 million punitive damages awarded to each plaintiff, instead reducing each award by varying amounts.
Green did not change the amounts awarded for actual damages, which ranged from $5.6 million to $38 million and totaled $61.1 million.
With post-judgment interest, the total Bayer owes is now in excess of $700 million.
“We’re certainly pleased with the court of appeals decision that vindicates the jury’s verdict and the trial court’s judgment,” said attorney Matthew Clement of Jefferson City, who represented the plaintiffs in the case. “We’re happy that nothing happened in the legislature, this year at least, that will affect future cases and and will continue to litigate our cases like we had been.”
In a statement issued through Bayer spokesman Brian Leake, the company said it would continue to appeal the case.
“We continue to believe that the trial court committed significant errors by allowing inadmissible and prejudicial testimony into the courtroom which poisoned the jury against the company,” the statement read.
Bayer is asking the U.S. Supreme Court to take its appeal of a 2024 Missouri case awarding $1.25 million in damages to John Durnell of St. Louis. The Eastern District Court of Appeals upheld that decision in February and on April 1 the Missouri Supreme Court declined to hear an appeal.
The U.S. Supreme Court has given parties until June 9 to file arguments on whether it should accept the case.
“The overwhelming weight of science as well as the assessments of the EPA and leading health regulators and scientists worldwide that support the safety and non-carcinogenicity of Roundup and we will continue to defend our products in court,” the company stated.
Bayer has paid out at least $10 billion for jury awards and settlements and earlier this year said it had an additional $6 billion set aside. That fund will be depleted quickly if decisions like the one upheld Tuesday are allowed to stand and the company suffers more losses like a $2.1 billion judgment handed down in March by a jury in Georgia.
According to a report from Reuters, Roundup produced $2.8 billion in revenue for Bayer in 2024.
The bill protecting glyphosate from litigation passed the Georgia legislature a few weeks after the $2.1 billion award.
Gov. Mike Kehoe, at a news conference after lawmakers adjourned earlier this month, blamed defeat of the Missouri legislation on trial attorneys who have made “tens of millions of dollars” off the lawsuits.
“If, for some reason, that particular product is not produced anymore in the United States, farmers are still going to need that type of product, that type of weed control, and so that, glyphosate I think is what it’s called, will be produced somewhere,” Kehoe said. “And if it is, it won’t be produced in this country, and farmers will not have the same protections and liability recourse back on the companies who make it, if it’s made in China or somewhere overseas.”
Bayer is also being sued by shareholders in a class action lawsuit over its decision to spend $68 billion to acquire Monsanto in 2018. The lawsuit alleges Bayer misled investors over the risks of the acquisition and failed to properly perform due diligence before buying Monsanto,
When Bayer acquired Monsanto in June 2018, its stock price was about $30 a share. On Tuesday afternoon, the company’s shares were selling for $7 apiece.
In the appeal of the Cole County decision, Bayer argued that Green made numerous errors in the trial and in rulings on post-trial motions. The company’s lawyers’ main points challenged the admissibility of testimony about a case over EPA evaluations of glyphosate; surprise findings from an expert; the use made of medical billing records; and whether the punitive damages were unconstitutionally duplicative.
At the heart of most glyphosate cases, and the target of legislation, is the label and whether it includes a proper notice that glyphosate may cause cancer.
“The misconduct complained about in the complaints in the three California cases Monsanto relies on, and in (one plaintiff’s) petition, includes allegations that despite scientific evidence that Roundup was carcinogenic, Monsanto continued to sell Roundup, and that Monsanto failed to warn of the dangerous effects of using Roundup,” Judge Cynthia Martin wrote in the Western District opinion delivered Tuesday.
In a discussion of whether the punitive damage award should have been reduced more, Martin wrote that “Monsanto’s degree of reprehensibility was high.”
Martin noted that the evidence shows that while the EPA has registered Roundup “for sale since 1974, Monsanto has been aware since 1985 that glyphosate, the active ingredient in Roundup, has the potential to cause cancer.”
Each of the plaintiffs suffered damages because Monsanto sold a product that was “unreasonably dangerous when used as reasonably anticipated” without altering the labeling to provide a warning.
“Monsanto’s awareness,” Martin wrote, “of studies demonstrating the possibility of a causal relationship between glyphosate, the active ingredient in Roundup, and cancer, particularly NHL, and then its decision to double down on its defense of Roundup in lieu of changing the product’s formulation or adding a warning label regarding the risk posed by Roundup demonstrates, at best, Monsanto’s indifference to or reckless disregard of the health of its customers.”