With a Writ of Certiorari filed on Aug. 16, Bayer is contesting the verdict in the only case to be heard by a federal court, in which a jury awarded $25 million in damages to Edwin Hardeman. The California man charges that spraying Roundup on his property caused his non-Hodgkins lymphoma.

The  German group is asking for a review of the 9^th Circuit Court of Appeals’ decision to uphold that verdict on two grounds. In the first, Bayer says the California state law’s failure-to-warn claims are preempted by federal law. In its second argument, it calls on the Supreme Court to address whether the 9^th Circuit’s standard for admitting testimony is inconsistent with that court’s precedent and a federal rule of evidence.

From Bayer’s standpoint, in admitting expert testimony concerning Roundup’s safety profile, the court departed from federal standards and thus enabled the plaintiff’s causation witnesses to provide unsupported testimony on the issue of whether glyphosate caused Hardeman’s cancer.

In that testimony, witnesses presented scientific research claiming to show connections between Roundup and cancer as well as evidence of Monsanto strategies that Hardeman’s attorneys said were aimed at suppressing scientific information about the risks of the company’s products.

With the petition to the highest US court, Bayer maintains that the 9^thCircuit’s “lenient standard” has distorted existing law beyond recognition and furthermore blurs the boundaries between science and speculation.

The group also discounts the argument that Monsanto failed to warn Roundup users of the risk as it asserts that  the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), which governs registration, distribution, sale and use of pesticides in the US, preempts the failure-to-warn claims. As the Environmental Protection Agency (EPA) has never mandated warning labels for Roundup, Bayer suggests that this claim should be inadmissible.

“The 9^th Circuit’s errors mean that a company can be severely punished for marketing a product without a cancer warning when the near-universal scientific and regulatory consensus is that the product does not cause cancer, and the responsible federal agency has forbidden such a warning,” Bayer’s argument goes.

Both in and out of court, since shortly after its $66 billion acquisition of Monsanto agreed in 2016, Bayer has unsuccessfully tried to stem the unbroken tide of litigation. On top of the three judgments against Monsanto, more than 100,000 Roundup claims are still pending, and the courts have so far turned thumbs down on the German owner’s attempts to deflect future claims through financial settlements.  

Earlier this year Bayer announced a five-point plan to manage and resolve future litigation risk arising from the Roundup litigation.” Supreme Court review and reversal of the 9^th Circuit’s flawed ruling is a major factor in this plan,” it says.

Success at the Supreme Court, the pharma and agrochems giant hopes, could set a precedent that it would be able to invoke in arguing future cases. “It has been 16 years since the Supreme Court ruled on FIFRA preemption, and the prior case did not involve a warning that EPA had rejected,” Bayer remarks in its filing. It is not clear, however, whether the court will take on the case.

Commenting on Bayer’s Supreme Court appeal, Hardeman attorney Aimee Wagstaff said this was “Monsanto’s last chance Hail Mary." While paying out billions of dollars to settle claims, she said the US company “continues to refuse to pay Mr. Hardeman’s verdict.” 

Author: Dede Williams, Freelance Journalist