Bayer Sticks With Roundup Despite Losing Second Trial

killer causes cancer, and it was a big loss. The jury awarded eighty point three million dollars to Edwin Hardeman, who sprayed the herbicide on his property for decades and said it caused his non Hodgkins lymphoma. Seventy five million of that award was punitive damages. Buyer plans to appeal the verdict and vowed to keep defending round Up, which it says is safe, as it faces more than eleven thousand lawsuits joining me as Robert Hockett, a professor at

Cornell Law School, Bob, what did the jury find here? Oh? So, yeah, it found a couple of things. Up. Of the first, there's several questions that kind of combine in a case like this, right, So the first sense to do with whether indeed there is a significant cancer risk associated with

a particular product. Right. Another thing then is um was there some kind of culpability on the part of the firm in sort of failing to notify people of this danger or failing to look into whether there was a danger, failing to rectify it in some way. And then finally a third question is what is the precise relation between this sort of cancer causing agent within the round up we'd killer in this case on the one hand, and

the particular plaintiff before the court on the other hand. Right, So, what the court found um uh at the first phase of the trial was that there is there does indeed appear to be uh this significant cancer risk that comes with round up. And what remains then to be decided um was well, to what degree is the company culpable right for not having um you know, not having done more to prevent the danger from occurring, or for not

having done more to sort of warn the public about it. Now, that wouldn't be Buyer itself, of course, that would have been Monsanto. But Buyer, as the acquirer of mon Santo last June, basically succeeds mon Santo to its own its liabilities. Bob Buyer says, This verdict isn't a harbinger of others, because each trial has different facts and legal circumstances. But both juries found that round up caused cancer, and both found punitive damages based on Monsanto's past conduct. So do

you agree with Buyer? UM? I think it's it's I can see why it wants to say what it's saying right now in order effectively, I think, to sort of calm fears on the part of its investors who might be worried that they're more liabilities, had more losses ahead, and so it's trying to make a little bit less

worried I think about future liabilities and losses. UM. That being said, UM, I really very much hope that Buyer doesn't actually believe entirely what it's been saying, because if it does, then that suggests that it's going to adopt the strategy that I think is actually quite risky for the company. And the reason for that, in turn is that, well, you know, there does seem to be a pretty strong case to be made or to the effect that UM

the chemical agent is indeed problematic. There also seems to be a pretty strong case to the effect that Monsanto tried to hide this fact. And what that means is that the only question remaining for buyer is the kind of plaintif by plaintiff question as to whether you know this plaintiff was affected, or whether there's a causal relation between this plaintiff's cancer and that agent, or that plaintiffs cancer and the agents and so on, and there you

have a total crapshoot. It really depends on who the plaintiffs are. But most plankets aren't going to bring cases like this. It doesn't seem to be unless they can show, you know, significant exposure to that chemical agent. And these are just the first two cases out of about eleven thousand, two hundred. According to Bloomberg Intelligence, the settlement value of all round up cases could exceed five billion dollars. When does buyer begin to feel real pressure to settle these cases?

I think I think it really it ought to be feeling that pressure now, right. It ought to be reading those previous decisions, I think very carefully. The one thing that it seems to be hanging its hat on, and maybe there are two things that's hanging its hat on.

So there's another trial coming up up in San Francisco and Buyer appears to believe that the judge you will be hearing or presiding over that trial is himself a bit more skeptical about the claims of causation between the chemical agents presence on the one hand and people's developing cancer on the other. So Buyer seems to be very much betting on a favorable ruling from that judge is

a little bit more skeptical about the causal link. If that judge were not to sort of demonstrate that skepticism, and if Buyer were to lose there, I would think that would be the finally on the coffin for them, and they would probably think, you know, decide that it's prudence to go ahead and settle across the board. If they win, I think it's probably still a bad idea not to settle, but at least they might think of themselves as being in the game a bit longer now.

About this verdict was punitive damages, meaning to punish the company for conduct. What message was that jury sending to Buyer? It was sort of telling Buyer that, you know, you probably you might have done better in June too, have paid a little bit more attention to the perspective liability

of liabilities of Monsanto before you bought it. My understanding is that right before the acquisition, most of the attention that was paid was paid to the regulatory concerns about whether right that the purchase would be permitted, and in consequence, I think there might have overlooked or maybe paid insufficient attention to the potential liability risk that would be coming along with Monsanto, because when you acquire a company like Monsanto,

you do, of course acquire the bad along with the good, and they don't appear to have researched the bad quite as thoroughly as they might have done, maybe again, because they were preoccupied with whether it would be regulatorily allowed for them to purchase it at all. Hardeman's trial was split into two parts. It was a format that Buyer

thought would give it the best chance. This verdict was less than the previous verdict, which was two nine million dollars and then knocked down by a judge to seventy eight point six. Is that random or is that the result of the two phase trial? Did it work for buyer? I'm inclined to think that it was random because buyer was hoping for is they were hoping that if we could kind of split up the well back up for one second a twilight. This basically implicates all three of

the questions that I mentioned from the top right. Is the agent itself a cancer causing agent? Is there a cause of relation between the plaintiff's use of the chemical on the one hand and getting the cancer on the other, And then again, was there something problematic about the way

Montanto dealt with the problem? Um? I think generally when all three of those things are loved together, the perception is that, well, there's a tendency for people to think, well, it all looks pretty bad, so let's just go ahead and cut some slack to the plaintiff there was hoping.

I think that by splitting these things up, there might be some real question about one of those questions, like, for example, the causal relation between the plaintiff's injuries uh and the presence of the agent in the In the roundup, Um, that didn't work right that particular, that hope was not fulfilled.

And given that, given that the very reason that they had for trying to get the split up turned out not to be a very good reason at all, I think it would be unwise for buyer to think that, well, the fact that the verdict was a little bit lower this time is itself the product of the you know, sort of uh divvying up of the of the case

into distinct cases or distinct trials. So buyer is going to appeal this verdict and appeal the verdict in August, what are its chances on appeal besides getting the verdict knocked down a little bit? I am myself skeptical that there's much chance of getting those verdicts overturned or getting those those things changed. And again, I think it's because of the nature of the particular questions that were before the court and the nature of the findings with respect

to those questions. There was nothing especially controversial or sort of you know, out of the ordinary or you know, outlier ish about those specific decisions, and it seems to me that Buyer then ought to read those decisions as indicating that it's really got an uphill climb if it's going to try to decouple in people's minds the relation between you know, the president of the alleged carcinogen and roundup on the one hand, and people's actually acquiring cancer

or contracting cancer. On the other hand, all right, thanks Bob. Maybe they want Buyer wants to consider Elizabeth Warren's proposal to break up the Fireman Santo might be all right, thanks so much. That's reliability. Okay, thank you. That's Robert Hoggett, music professor at Cornell Law School. Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple podcast, SoundCloud, and on Bloomberg dot com slash podcast. I'm June Brosso. This is Bloomberg