On The Case

Bayer wants to resolve future Roundup liability in a class action. A new mass torts paradigm?

(Reuters) - The headlines Wednesday in the mass tort litigation over Bayer’s Roundup weedkiller were all about the company’s decision to pay as much as $9.6 billion - a lot of money! - to settle about 94,000 suits alleging that Roundup is associated with non-Hodgkins lymphoma.

But the bigger news, at least for this case’s impact on mass tort litigation, may be in a novel proposal to address all future claims against Bayer. If the mechanism – a class action to determine threshold issues of causation while preserving plaintiffs’ individual rights to sue – ends up winning court approval, it’s going to change the way defendants buy global peace in these sprawling cases.

The Roundup future claims settlement is via a newly-filed prospective class action on behalf of everyone who was exposed to Roundup but has not hired a lawyer to bring a tort claim. (There are subclasses for people who already have cancer and those who don’t.) In a simultaneously-filed motion for preliminary approval of the settlement of the new class action, Bayer and plaintiffs lawyers from Lieff Cabraser Heimann & Bernstein, Audet & Partners and The Dugan Law Firm agreed to establish a panel of five scientific experts to decide the threshold questions of whether Roundup can cause cancer and, if so, at what levels of exposure. (For the true class action nerds: The settlement calls for the certification of an issues class to resolve the predominant common question of causation.)

The panel, which Reuters described Wednesday as "a calculated gamble" for Bayer, has at least four years to reach a determination, which is binding on all class members. After the panel’s decision, class members will be free to bring individual tort claims, with the caveat that those threshold causation and exposure questions have already been decided.

In the meantime, Bayer will put up $1.1 billion for diagnostic services for the class and for assistance to class members who develop cancer during the years before the scientific panel’s decision. The proposed settlement features an incredibly elaborate notice program to get the word out to prospective class members, taking into account that the class includes agricultural workers who may not speak English or have permanent residences. Class members have 150 days from the launch of the notice program to opt out of the class. As part of the settlement, future claimants will give up the right to seek punitive damages and medical monitoring fees in individual suits following the scientific panel’s causation decision.

Those are the basic operations of the futures class action settlement, which must be approved by U.S. District Judge Vince Chhabria of San Francisco, who is overseeing the Roundup multidistrict litigation. Bayer described the deal in a statement as a “mechanism to manage and resolve potential future claims efficiently,” expressing confidence that the scientific panel will agree with what Bayer describes as scientific and regulatory consensus that Roundup is safe and noncarcinogenic.

For future claimants, said prospective class counsel Elizabeth Cabraser in an email statement, the deal provides “much needed medical services and financial assistance to class members.” Plaintiffs won’t really lose time waiting for the scientific panel to deliver a decision, the class approval motion said, because the civil justice system grinds slowly. Moreover, if plaintiffs prevail before the expert panel, they won’t have relitigate general causation in their individual suits, though Bayer can still contest that Roundup caused a particular plaintiff’s disease.

So why is the settlement so innovative? It’s true that some of its key elements have featured in previous mass tort deals. A West Virginia class action alleging that Dupont contaminated drinking water with toxic chemicals relied on a panel of scientific experts to determine threshold causation, as University of Connecticut professor Alexandra Lahav discussed in a just-published study cited in plaintiffs’ motion for preliminary approval. And some huge recent mass tort settlements, such as the BP Deepwater Horizon oil spill case and the NFL concussion litigation, have used the class action vehicle to resolve claims, including, in the NFL case, future claims by plaintiffs whose injuries have not yet manifested.

But pulling the elements together to resolve almost all future litigation is "really interesting" and "impressive," said Georgetown professor Brian Wolfman. University of Georgia professor Elizabeth Burch said the proposal is "a stretch of different programs patchworked together in a new way." (It’s almost certainly not an accident that New York University professor Sam Issacharoff, who has helped plaintiffs lawyers pioneer the recent use of class actions to resolve mass torts and defended both the BP and NFL concussion settlements in appellate challenges, was part of the plaintiffs’ team that put together the proposed Bayer deal.)

Will the settlement win approval? As I’ll explain, both Wolfman and Burch have important concerns about the deal. But as an initial matter, the plaintiffs’ briefing backing the settlement takes pains to explain why this proposal is not like the personal injury class action settlement struck down by the U.S. Supreme Court in 1997’s Amchem v. Windsor.

In that case, as you probably remember, the asbestos defendant Amchem sought a global settlement that would have resolved individual claims not just by plaintiffs who had already alleged asbestos-related symptoms by also by future claimants who were not yet sick. The Supreme Court agreed with objectors who said there was an inherent structural conflict between present and future claimants.

The proposed Roundup settlement addresses the potential conflict via subclasses with individual representation. More fundamentally, though, the Roundup settlement – unlike the Amchem deal – does not purport to resolve any class member’s individual claim. Plaintiffs lawyers argued in the motion for preliminary approval that because the action will only decide the causation issue, there is no conflict among class members. If the science panel finds a link between Roundup and cancer, the brief said, “all class members benefit – and then remain free to litigate their individual claims and individual damages in the tort system.” Conversely, if the panel finds no causation, the brief said, everyone in the class suffers the same consequence.

Professors Wolfman and Burch nevertheless said Judge Chhabria and, presumably higher courts, will have to wrestle with some hard questions about the proposed Bayer settlement. Chief among them is whether absent class members can be forced to cede the causation question to a panel of scientists instead of a jury. Juries, as Burch pointed out, weigh evidence different than scientists. That’s precisely why Bayer wants causation to be decided by a panel of experts, of course. But the civil justice system gives plaintiffs a right to plead their case to a jury, not to a panel of scientists.

Bayer and class counsel can argue that plaintiffs who want to retain their right to a jury trial can opt out of the class action. Burch and Wolfman said, though, that the settlement’s notice program, however innovative, may not reach everyone whose rights are at stake. In particular, Wolfman said, people who aren’t sick might not pay attention to the notice, yet they are precisely the plaintiffs whose future claims will be impacted. There’s also an open issue, he noted, about whether uninjured plaintiffs – who will presumably comprise the lion’s share of the Bayer class – even have standing to sue.

“The biggest question is whether you can really do something like this,” Wolfman said. “There really aren’t definitive answers.”

This story has been corrected. A previous version incorrectly reported that Bayer was paying as much as $10.9 billion to settle close to 100,000 suits.