The German group’s petition filed in August called on the court to review the jury verdict of the Ninth Circuit Court of Appeals. In their reply brief, attorneys for Hardeman argued that Bayer’s request “is unworthy of review” as it “mischaracterizes elements of the case.”

The jury in the only trial heard by a federal court (which allows the Supreme Court to review it) found that exposure to Monsanto’s glyphosate-based herbicide was the cause of the hobby gardener’s non-Hodgkin lymphoma. The case brought by Bayer challenged a lower court’s decision.

Bayer bought Monsanto in 2018 and has been embroiled in litigation ever since. All of the three trials – all heard in the state of California – upheld the plaintiffs’ charges that exposure to Roundup caused their cancers.

In the Hardeman case, the plaintiffs’ attorneys presented a range of scientific research that they said showed connections between Monsanto’s herbicides and cancer, as well as evidence of many of the erstwhile US agrochemicals giant’s strategies to suppress scientific information about the risks of its products.

Beyond the discussion of toxicity, the principal issue in the case as put forward by Bayer centers on whether Monsanto was obliged to warn consumers about the risks that its products carry. The producer maintains that Roundup’s active ingredient does not cause cancer and, moreover, that  the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), which governs the registration, distribution, sale and use of pesticides in the US, preempts plaintiff’s “failure-to-warn” claims.

From the pharmaceuticals and agrochemicals producer’s perspective, Monsanto had no obligation to attach warning labels to Roundup. Because the Environmental Protection Agency (EPA) has approved labels with no cancer warning, it says, the failure-to-warn claims should not be an issue.

Bayer additionally has asked the Supreme Court to address whether or not the Ninth Circuit’s standard for admitting expert testimony in the Hardeman case departed from federal standards and allowed the attorneys’ witnesses to provide “unsupported testimony” on Roundup’s safety profile.

Statistics show that the high court usually agrees to hear fewer than 200 cases per year and favors cases that have national significance, those dealing with conflicting decisions in lower courts or those seen as setting an important precedent. Bayer has repeatedly said it believes its case falls into one or more of those categories.

If the Supreme Court agrees to take up the case and decides in Bayer’s favor, this would allow the Leverkusen-based group to avoid settling with thousands of people claiming that Roundup caused their cancer.

Several industry organizations have joined Bayer in petitioning the Supreme Court to adjudicate the case in the interest of clarifying whether the Ninth Circuit, which they see as too lenient toward plaintiffs in product liability questions, erred in admitting expert testimony during trials.

Author: Dede Williams, Freelance Journalist