New Roundup MDL Claimants Must Participate in Settlement Process

San Francisco, CAThe Northern District of California has ordered current and future plaintiffs in the Monsanto glyphosate multidistrict litigation (MDL) who have not already reached a settlement with Monsanto to participate in a program that has been overseen by Special Master Ken Feinberg since 2019. The Order has apparently prompted Bayer AG, Monsanto’s corporate parent, to increase the settlement reserve fund by $4.5 billion.

Massive litigation

           
Bayer and Monsanto have faced more than 120,000 lawsuits alleging that the company failed to warn consumers that that exposure to glyphosate-based Roundup had been linked to the development of non-Hodgkin lymphoma, a cancer of the lymph system. Most claimants used Roundup at home, on their lawns and gardens.

Older age, being male, and having a weakened immune system can increase the risk of adult non-Hodgkin lymphoma. A study conducted by former EPA advisors reportedly also suggests that heavy exposure to glyphosate, the active ingredient in Roundup prior to its recent re-formulation, raises the risk of non-Hodgkin lymphoma by as much as 41 percent.

The Roundup bellwether lawsuits that have gone to trial led to jury awards to the plaintiffs of $20 million, $25 million and $2.055 billion.  Thousands of individual cases have already settled. Monsanto is now trying to negotiate a comprehensive settlement of all outstanding cases and lawsuits that may be brought in the future.

The process has been fraught with false starts and allegations of bad faith from the beginning. As one plaintiffs’ attorney said during a 2020 breakdown in negotiations:

“I have clients who have cancer. They are dying and every time they die it fundamentally changes the dynamics of their case. I have an obligation to push those cases forward. Frankly, I don't think they've [Monsanto and Bayer] been honest with me in the process and I'm tired of it. I’m not angry, I just want to litigate.”

A clearly exasperated Judge Vincent Chhabria responded in kind, threatening to blow up the settlement process: “I don't care whether these cases settle. My job is not to settle cases. My job is to try cases.” 

Patience has clearly left the building.

Troubled settlement history 

Monsanto withdrew a settlement proposal in February 2021 after the Court expressed reservations. A subsequent $2 billion settlement proposal made by Monsanto thereafter was to have covered: 

• Roundup users who had been diagnosed with non-Hodgkin lymphoma but who have not yet sued and had not yet hired a lawyer to sue; and
• indviduals who used Roundup before February 2021, but who had not been diagnosed with non-Hodgkin lymphoma.

In May, the California federal court rejected the proposal as “clearly unreasonable” for the undiagnosed group.

A central issue appears to be the very long latency period for development of non-Hodgkin lymphoma, up to fifteen years. The proposed reserve fund designed to address future claims was to last only four years. Additionally, the Court wrote that provisions in the settlement “greatly exaggerate” the potential benefits of four years of “vaguely described medical monitoring” for those who have not yet contracted the cancer. Benefits of a compensation fund were described as “also vastly overstated” for the group of potential claimants who have yet to be diagnosed.

Ken Feinberg – a familiar presence 

        
The Order that compels future litigants to participate in the settlement process sets out few details about the process itself. Those making claims must submit information according to a schedule, after which the claims can be challenged, evaluated and awards ultimately made. Claimants have been told not to reach out to the Special Master. His office will contact them. They need not accept the settlement offer and may proceed to litigation.

Ken Feinberg is a familiar presence in the field of complex settlements. He oversaw the September 11th Victim Compensation Fund and the BP Deepwater Horizon Disaster Victim Compensation Fund, among others. In his book What is Life Worth?: The Unprecedented Effort to Compensate the Victims of 9/11,  Feinberg set out an 8-step process for determining how to allocate funds. Among the principles embraced by this process were:

• The value of informed discretion in compensating claimants with the goal of keeping 85 percent of the money from going to 15 percent of the 'richest' claimant families. The process strives to narrow the gap between the largest and the smallest compensations paid to claimants; and
• Lawsuits were to be discouraged as contrary to the spirit of the law establishing the compensation fund.

In the abstract, it sounds all very Solomonic. The wisdom of Solomon may, however, be what is required to achieve justice for those who have been injured because of their exposure to Monsanto Roundup, one of the world’s most widely used herbicides.