Bayer Proposes $10 Billion Settlement For Three Chemical Lawsuits

10:18AM Aug 04, 2020
Bayer Settlement
Pending approval and discussion, Roundup, dicamba and PCBs cases could settle.
( Lindsey Pound, Istock, MGNOnline )

Bayer recently announced its intent to settle all Roundup, dicamba drift and Polychlorinated biphenyls (PCB) water litigation cases between $10.1 and $10.9 billion. The company says this settlement is not an admission of fault, but rather a cost-effective way to end the “distraction.”

“The decision to resolve these cases was driven by our desire to bring greater certainty to the farmers we serve every day,” says Liam Condon, Bayer president of the crop science division.

“These, and all our products, bring to growers and other users around the world the ability to help them economically and sustainably produce a healthy crop.”


Roundup

Bayer reports between $8.8 billion and $9.6 billion of the fund is dedicated to the Roundup settlement. It would cover 75% of the current cases — 125,000 — and includes set-aside money to handle future cases. The Roundup settlement includes several elements to resolve current litigation. Anyone who participates in the settlement will be required to dismiss their cases or agree not to file in the future. Attorneys for the plaintiff will also advertise the settlement to reach claimants who are eligible for compensation but might not know.


Dicamba

The $400 million dedicated to the dicamba drift litigation settlement covers alleged crop damage for 2015 to 2020 crop years. This will resolve multidistrict litigation pending in the U.S. District Court for the Eastern District of Missouri. Anyone who wants to be part of the settlement will need to provide proof of damage to crop yields and evidence it was caused by dicamba. Bayer says it expects BASF will contribute to this settlement, as it is also named in the pending litigation.


PCB

Around $820 million of the fund will go to the PCB water litigation claims. The PCB chemical was manufactured by Monsanto until 1977. The chemical is considered a carcinogen and was banned by EPA at that time. The original lawsuit accused Monsanto of widely contaminating all natural resources and living organisms with PCB chemicals. Marketed as Aroclor, PCB was used in paint, caulking, transformers, coolants, hydraulic fluids, sealants and other products. It causes cancer in humans, kills fish and birds and can endanger wildlife.


As of late July, the plaintiffs moved to withdraw the proposed Roundup settlement as a judge said he’s likely to reject it. Bayer says it’s committed to a resolution.

The judge reviewing the Roundup settlement cited specific concerns with taking future claims out of the hands of judges and juries by using a scientific panel. In the Roundup settlement specifically, Bayer proposed to move decision on the safety of the product from the hands of a jury to scientists.

If eventually approved, there would be a scientific panel to review the safety of glyphosate, and both Bayer and the class members are bound by the outcome of the panel. They’ll check to see if glyphosate does cause non-Hodgkin’s lymphoma and at what exposure levels.

If this scientific panel found no causal relationship between Roundup and non-Hodgkin’s lymphoma, class members will be barred from claiming otherwise in future litigation against Bayer. However, the judge said this case is an example where science might be evolving and doesn't want to bind future claimants to a single decision made by a scientific panel, which is why he is likely to reject this settlement.

“Even with the consent of both sides, it’s questionable whether it would be constitutional to delegate the function of deciding the general causation question from judges and juries to a panel of scientists,” says Judge Vince Chhabria, who reviewed the settlement.

Regardless of the settlement, farmers will continue to have access to glyphosate products for the 2020 season and into the foreseeable future, Bayer assures.


Syngenta MIR162 Settlement Finale

After more than five years of litigation and waiting, farmers are finally receiving payment from Syngenta’s AgriSure Viptera (MIR162) corn settlement. The first checks were received this past spring, and final checks will be mailed this fall.

Payments are part of a larger $1.51 billion settlement reached in 2018 related to Syngenta’s marketing Viptera and Duracade-traited corn seed. The settlement was approved by U.S. District Court Judge John W. Lungstrum in the District of Kansas.

To recap, certain corn shipments to China were rejected in 2013, as a result of the presence of the then-unapproved traits. Plaintiff lawyers said this led to a decline in corn market prices. After several bellwether trials, it eventually became a nationwide class action. Farmers who are eligible will receive settlement for corn priced after Sept. 15, 2013.

For many farmers, their total payments for the settlement could be more than $5,000, according plaintiff lawyers.

The settlement will provide funds to farmers who met deadlines and provided necessary documents. Some grain handling and ethanol production facilities are also eligible for payments.

In the spring of 2020, farmers and eligible grain handling and ethanol production facilities received 65% and 50%, respectively, of their total settlements.


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