Bayer is betting on "miracle solution" defense in the Roundup litigation; the experts see the obstacles

NEW YORK (Reuters) – Bayer AG has announced that a jury of $ 2 billion and thousands of lawsuits in the United States in which it would claim that its weed-killer product-based glyphosate, Roundup, caused cancer, should be rejected because a US regulator said the herbicide did not pose a health risk.

Some legal experts believe that Bayer will have trouble convincing the courts of appeal to dismiss the verdicts and lawsuits for these reasons. Bayer has a better chance if a US-backed, business-friendly Supreme Court seizes the case, experts said. But it could take years.

Bayer is under increasing pressure after a third consecutive US jury said Monday Roundup was carcinogenic, awarding more than $ 2 billion to a couple who used the chemical on their property – the most significant verdict to date in the litigation on glyphosate.

Bayer, which inherited the Roundup litigation when it acquired Monsanto last year for $ 63 billion, is facing lawsuits against more than 13,400 plaintiffs in the country, alleging that the product causes cancer.

The actions of the German-based company have been hammered since Roundup's first cancer verdict last August, removing some 40 billion euros in market value and leaving Bayer worth less than it paid. for Monsanto.

Bayer denies that Roundup causes cancer, claiming that decades of studies have shown that glyphosate and weed killers are safe.

On Wednesday, the company said it would argue that the lawsuits, which fall under state law, are at odds with the guidelines of a federal agency, the Protection Agency of Canada. the environment of the United States.

On April 30, the EPA reiterated earlier indications that glyphosate is not a carcinogen or a risk to public health if it is used according to its current label.

Citing the EPA's decision, Bayer repeatedly rebuked the complainants' calls to add a cancer warning to Roundup, saying the agency would refuse the change.

Under the legal doctrine of pre-emption, the rights of states are excluded if they are contrary to federal law.

"We have very strong arguments to justify the claims presented here … and the recent EPA registration decision is an important aspect of this defense," said William Hoffman, one Bayer's lawyers, during a phone interview with reporters. Hoffman said the argument applied to all US Roundup lawsuits.

Adam Zimmerman, a law professor at Loyola Law School in Los Angeles, generally believes that pre-emption is generally considered a "miracle solution."

But Zimmerman and three other legal experts agreed that the appeal courts were convinced that Bayer was faced with the fact that the EPA's decision on glyphosate protected it from claims of state law.

They cited a 2005 US Supreme Court ruling that US EPA approval of a product did not necessarily preclude claims under state law. The decision, Bates v Dow Agrosciences, leaves ample room for the juries to decide whether such applications should be processed, they said.

The judges of the three Roundup cases that were tried against Monsanto all rejected the company's preemption argument, citing that decision.

"In light of the Bates decision, the battle will be difficult for the company, which has won pre-emption on appeal," said Zimmerman.

Bayer also stated that it would argue on appeal that trial courts had wrongly admitted evidence not supported by scientific evidence. But legal experts have stated that courts of appeal usually hand over to lower courts.

'SORE THUMB'

Lars Noah, a law professor at the University of Florida, said Bayer's chances of success would increase considerably if the Supreme Court examined Roundup appeals.

The High Court only accepts about 70 cases a year, but a business-friendly majority might be inclined to hear the dispute, said Alexandra Lahav, a law professor at the University of Connecticut.

Since 2005, the High Court has ruled on at least three pre-emption cases in favor of companies, none of which concerned the EPA.

The Supreme Court will soon decide on another case that will determine whether the approval of the US Food and Drug Administration prevents actions in tort.

In this case, the plaintiffs sued Merck & Co for the company's alleged failure to prevent the risk of serious bone fractures associated with its osteoporosis drug, Fosamax.

Merck, who denies the allegations, argued that the lawsuits had to be pre-empted because the FDA had not required an additional fracture warning in the drug's prescribing information. At a hearing in January, the judges appeared to side with the company.

In a statement Thursday, Bayer said he did not believe that the 2005 Bates ruling is an obstacle to appeal courts because of other rulings issued by the Supreme Court since then.

Noah acknowledged that the court had more recently signaled its desire to limit prosecution in contradiction to the expert opinions of the regulatory agencies.

"Bates' decision is now like a thumb injury," said Noah. "Bayer has more than enough ammunition in recent cases before the Supreme Court to show that the trial court judges were wrong."