Bayer’s losing streak in Roundup trials explained

With Bayer facing investor pressure to resolve thousands of lawsuits over its Roundup weedkiller after being hit with $2bn in verdicts in recent weeks, all eyes are on a trial wrapping up in Philadelphia.

Plaintiffs have won the last four trials over their claims that the product causes cancer, each time securing a larger verdict. Those losses ended a nine-trial winning streak for Bayer, shattering investor and company hopes that the worst of the Roundup litigation was over.

In the current case, which kicked off on November 6 in the Philadelphia Court of Common Pleas, Pennsylvania resident Kelly Martel claims she developed non-Hodgkin lymphoma from using Roundup. Her case will help test whether plaintiffs’ recent victories were an aberration or the payoff from favourable court rulings and a shift in plaintiffs’ strategy.

Interviews with lawyers on both sides, and a review of trial transcripts, suggest several factors could explain the difference in outcomes. Those include judges’ rulings allowing jurors to hear testimony about regulatory issues related to Roundup, which Bayer has called misleading, and a new emphasis by plaintiffs lawyers on chemicals in the product other than its active ingredient, glyphosate.

Lawyers for Martel did not immediately respond to requests for comment. Bayer maintains that Roundup is safe and said in a statement that it will “continue to try Roundup cases as the science is strongly on our side”.

The German pharmaceutical conglomerate acquired Roundup as part of its $63bn purchase of US agrochemical giant Monsanto in 2018, amid opposition from some of its own shareholders.

In 2020, the company agreed to pay up to $9.6bn to settle then-existing Roundup lawsuits, but was unable to resolve claims that would be filed in the future. It is now facing about 50,000 lawsuits.

Change in fortune

Bayer’s trial fortunes changed abruptly when plaintiffs began winning in October, most recently securing a $1.56bn verdict for three people. Bayer said it will appeal against the verdicts on numerous grounds.

Every trial depends on specific facts in the case, and juries, which deliberate in secret, are inherently unpredictable. Both sides, however, point to factors they say are behind the shift.

In court filings and public statements, Bayer has attributed its recent losses to judges allowing juries to hear what it considers to be improper evidence.

Specifically, the company has said, jurors were allowed to hear of a ruling in 2022 by a federal appeals court ordering the US Environmental Protection Agency (EPA) to reconsider its 2020 finding that glyphosate probably does not cause cancer.

Bayer says plaintiffs’ lawyers were allowed to imply that the ruling means glyphosate is unsafe, when the court only found that the agency had not followed the required procedure. The EPA still states that glyphosate is unlikely to be capable of causing cancer.

The company also said plaintiffs’ lawyers in recent trials used the failure of some EU member states to reapprove glyphosate to suggest that its approval in Europe would soon expire. In fact, unanimity was not required for European regulators to reapprove the product, which they did in November.

Plaintiffs’ lawyers reject the notion that the evidence about regulators explains their wins.

“That’s just not true,” Tom Kline, who along with co-counsel Jason Itkin represented Ernest Caranci, the second plaintiff to prevail at trial in October. He and others say that new studies in the last year supporting a cancer link are one reason for the wins, though those studies were used in some cases Bayer won as well.

The World Health Organisation’s cancer research agency concluded in 2015 that glyphosate is likely to be capable of causing cancer, though it did not reach a conclusion whether it poses a risk in real-world use.

Bart Rankin, a lawyer for plaintiffs in the $1.56bn verdict, pointed to a more concrete shift in strategy.

In recent trials, plaintiffs have placed greater emphasis on the theory that known toxins in Roundup other than glyphosate, including formaldehyde, arsenic and others, enhance its cancer-causing potential. Bayer witnesses and lawyers have said these substances are present in trace amounts only.

While plaintiffs’ lawyers in earlier trials mentioned other chemicals, transcripts of recent closing arguments suggest they have become more prominent. Rankin devoted a section of his closing argument to what he called the “cocktail” of harmful chemicals in Roundup.

“Ladies and gentlemen, they are carcinogens, and when you stack them one on top of the other, it makes an impact,” he told the jury.

Bayer said in early November it will remain very selective when considering settlement of Roundup cases and reassured investors in a call in late November that it has reserves to deal with the litigation. The company has set aside about $6.5bn for that purpose.

Nonetheless, if plaintiffs prove able to replicate recent wins, it will increase pressure on Bayer, which faces other significant setbacks, including stopping a late-stage study of what it hoped would be a blockbuster anticlotting drug.

More Roundup trials are expected in 2024. Martel’s case could go to jurors later on Monday.

Reuters