Bayer accused of buying appeal in Roundup cancer case

Bayer recently settled with a Georgia man in one of the Roundup cancer cases in which Bayer has agreed to pay the fellow to appeal his case to the 11th Circuit Court of Appeals. In other words, Bayer is paying its opponent to keep fighting in court. Since the first Roundup cancer verdict in 2018, well over 100,000 Roundup cancer cases have been filed around the country, causing Bayer to put up between $10 to $11 billion to potentially settle. The strategy behind the pay-to-appeal settlement is to get two federal appeals courts to disagree on the issue of whether the Federal Insecticide Fungicide Rodenticide Act (FIFRA) “preempts” state law claims that involve a failure to warn of a risk of cancer. If Bayer’s strategy is successful, it will pave the way for them to ask the U.S. Supreme Court to resolve the disagreement, and hopefully take Bayer’s side on the preemption issue. The Georgia case at the heart of the “pay-to-appeal” strategy was filed in 2017 but languished on the docket with almost no actual litigation between Bayer and the plaintiff. In December 2020, the Georgia court ruled in Bayer’s favor on a preliminary motion, finding that FIFRA preempted the plaintiff’s failure to warn claims. The court’s ruling was based on a 2019 letter from the EPA that indicated it would not approve a cancer warning on glyphosate product labels. Thus, the Court found that the EPA’s letter would create an impossible conflict for Bayer: if it included the cancer warning on Roundup labels, they would be violating FIFRA, but without the cancer warning, they could be found liable under state law for failing to warn of cancer risks. By paying the plaintiff to appeal this ruling to the 11th Circuit, Bayer may get the appeals court to agree with its FIFRA preemption argument.

Bayer has already appealed one of the Roundup cancer verdicts to the 9th Circuit, but it expects that court to rule against the preemption argument. Thus, if all goes as planned, Bayer will have rulings from the 9th and 11th Circuits that disagree on a core issue in the cases.

One of the interesting aspects of the Georgia settlement is Bayer’s requirement that the fellow appeal the case in order to get paid. If he were to dismiss his appeal, he would then have to pay Bayer almost $100,000. This has riled a number of folks, claiming that Bayer is trying to “buy” a favorable appellate ruling.

In theory, litigation outcomes should be the result of two sides vigorously presenting their side of the story. This sort of settlement appears to short-circuit the process by avoiding the actual litigation and taking a fairly uncontested case directly to the appeals process.

Cape Law Firm’s Frequently (or Randomly) Asked Questions

” What is FIFRA Preemption?”

When our federal and State governments pass laws regulating the same subject, the Supremacy Clause in the Constitution says that federal law will take priority over conflicting State laws. The Federal Insecticide Fungicide Rodenticide Act (FIFRA) is a federal law regulating all pesticides and it provides requirements for pesticide labels. FIFRA contains two important provisions relating to its preemption over State pesticide laws:

• A State may regulate the sale or use of any federally registered pesticide or device in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this subchapter.
• Such State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter.

From at least the early 1990’s, courts interpreted these FIFRA provisions to preempt virtually all state law claims against a pesticide. In other words, courts dismissed State law claims because they would be in conflict with FIFRA. Courts also held that FIFRA itself did not give users a private legal remedy. Thus, the FIFRA preemption amounted to virtual immunity for pesticide registrants from lawsuits over their products. In 2005, the Supreme Court addressed the scope of FIFRA preemption in a peanut herbicide case. The Court held that claims that did not impose labeling requirements were not preempted (e.g., defective design, manufacturing defect, express warranties, etc.). It also narrowed FIFRA’s preemption over claims involving labeling and packaging, finding that such claims were not preempted by FIFRA as along as they were equivalent and consistent with FIFRA’s misbranding provisions.