Class Actions Brief Blog

While Roundup herbicide may be able to kill unwanted weeds, Monsanto, the maker of Roundup, is having a much harder time weeding out unwanted lawsuits. Recent cases alleging Roundup caused cancer have resulted in verdicts of tens of millions of dollars per plaintiff. Now Monsanto’s attempt to round up future claims into a class action settlement is coming under renewed scrutiny.

The Roundup Multi-District Litigation (“MDL”)
In 2015, the World Health Organization designated the active ingredient in Roundup as probably carcinogenic. Since then—and despite the U.S. Environmental Protection Agency’s determination that the active ingredient is not a human carcinogen—tens of thousands of claims that Roundup causes cancer have sprung up like weeds. In 2016, a judicial panel consolidated these cases into one MDL in the Northern District of California.

Although many claims have been settled, an important outstanding issue is how to address future claimants. Roundup users who (1) have developed cancer but have not filed suit, or (2) have not developed cancer but do so in the future are all proposed class members in a $2 billion settlement agreement.

In February 2021, Bayer, the parent company of Monsanto, and court-appointed counsel for the proposed class proposed a settlement that would have provided diagnostic screening and payments to claimants who develop cancer, a four-year standstill on litigation, and a waiver of the right to seek punitive damages. Most interestingly, however, the agreement proposed the creation of a science panel to make non-binding but court-admissible determinations about whether and at what exposure Roundup causes cancer.

In May, the MDL judge held a hearing on the terms of the agreement and raised concerns about the appropriateness of the science panel. A week later, the judge rejected the deal. The concerns raised during the hearing and subsequent order highlight the challenges in resolving mass tort actions that involve evolving science, particularly when proposed class members may not develop injuries until years after a settlement.

Initial Design of the Science Panel
As first proposed, the science panel was designed to determine important issues of causation which would be binding on all class members. That is, if the panel found Roundup did not cause cancer at ordinary exposure levels, Monsanto’s future liability would be minimal. On the other hand, if the panel found a causal link between Roundup and cancer, plaintiffs would not have to prove causation at trial. While the panel was meant to add certainty to the causation question, whether it was legal created uncertainty.

As the MDL judge stated, “[I]t’s questionable whether it would be constitutional (or otherwise lawful) to delegate the function of deciding … whether and at what dose Roundup is capable of causing cancer[] from judges and juries to panels of scientists.” The Court also questioned the appropriateness of locking in a decision from a panel of scientists for all future cases in an “area where the science may be evolving.”

In response to the Court’s concerns, the parties withdrew their initial proposal and redesigned the panel. While the panel’s research goal remains the same, its determination is now merely advisory. Additionally, parties can introduce evidence to rebut the panel’s determination in subsequent litigation.

Reworked But Not Resolved
Even with the revised science panel serving only an advisory role, the settlement agreement remains contentious.

Bayer and class counsel highlight the panel as a means of efficiently addressing uncertainty. Although the panel’s decision would not be binding, in practice it would either help Bayer dismiss claims (if the panel finds no causal link) or it would help the class pressure Bayer to increase annual contributions to the compensation plan (if the panel finds a causal link).

That the panel’s determination is no longer binding may avoid constitutional concerns about future claimants’ right to a jury trial, but evidentiary concerns remain. During the hearing, the Court raised reservations about an agreement that would force judges to admit an opinion that is not subject to cross examination. The panel’s opinion may not actually be binding per the agreement but, if the panel cannot be questioned about its finding, are those findings effectively binding?

The Court also questioned whether the parties who would benefit most from this proposal were in fact future claimants: “Why is it in the interest of the class to agree in advance to the admission in future trials of the conclusions of a court-appointed independent science panel, given how well the trials have been going for plaintiffs without such a panel?” This is particularly salient when the science and the proposed class are not static. For example, a future claimant might not develop cancer for years but would have to opt out of the agreement within a few months of it being finalized or have her claim influenced by the panel’s findings. Is that fair?

Ultimately, the MDL rejected the entire agreement, noting that “agreeing in advance to admit the opinion of a court-blessed panel that might undercut the opinions of the plaintiffs’ experts is a significant concession for the class members—one that could greatly reduce their chances of winning [and] reduce settlement value.”

Monsanto’s Response: Playing in the Court of Public Opinion
With the hopes of a court-approved science panel dashed, Monsanto announced that it will create an independent scientific advisory panel to publicly release findings on a new website. The website’s purpose will be to provide consumers with science on Roundup’s safety so they can make informed decisions. In other words, Monsanto has shifted the science panel from the courtroom to the court of public opinion.

Takeaways
While a class action can be an effective means of resolving lawsuits that might otherwise be unmanageable, negotiating a settlement agreement can be plagued with challenges. Courts weigh competing party interests, constitutional challenges, and manageability even when the parties come to a mutual agreement. As the Roundup MDL highlights, courts are particularly bugged—and thus pay more critical attention to the terms of an agreement—when the proposed class is “diffuse, contingent, and indeterminate” and when alleged injuries are latent.

The Court’s rejection of the settlement, including the proposed science panel, not only affects the proposed class in the Roundup MDL. It also signals concerns courts across the country may raise in other mass tort settlements where injuries can take years to manifest and the science around causation is still contested.