Prominent mediation attorney Kenneth Feinberg – best known as architect of the 9/11 Victims Compensation Fund – recently told the German news magazine WirtschaftsWoche (“Economic Week”) that mediation between Bayer AG and U.S. glyphosate plaintiffs is progressing – but don't look for a settlement or resolution anytime soon.
“Mediation continues slowly, but steadily,” Feinberg said, explaining that the objective is to “clarify all legitimate claims” at both the federal and state levels.
Feinberg was appointed by U.S. District Judge Vince Chhabria in May to serve as mediator in current glyphosate litigation currently involving close to 43,000 claims against Bayer. Judge Chhabria presided over the first glyphosate case to go to trial in August of 2018, in which a former groundskeeper for a San Francisco-area school district claimed glyphosate exposure caused him to develop terminal non-Hodgkin's lymphoma. That trial ended in a $289 million verdict for the plaintiff, which was later reduced to $78 million because of state-mandated caps on punitive damages.
At the time of Feinberg's appointment as mediator, Bayer indicated that it would participate “in good faith,” but still wanted to “assess cases over the long term.” The company has also stated that it is working on its own solution. However, Bayer CEO Werner Baumann has said that his company “...will only agree to a mediation outcome that is economically viable and structured to bring the process to a reasonable conclusion.”
According to financial analysts, resolving all claims could cost Bayer as much as $10 billion.
Bayer AG, a company with a checkered past that includes human experiments and use of slave labor during the Second World War, acquired the rights to the glyphosate-containing herbicide Roundup in its takeover of Missouri-based agribusiness giant Monsanto in 2018. Since that time, a number of countries, as well as state and local governments in the U.S., have either banned Roundup or put restrictions in place on where and how it can be used. At the same time, Bayer has lost three high-profile glyphosate lawsuits, one of which ended in a $2 billion judgment in favor of the plaintiffs.
All of this has taken its toll on Bayer's company value, which is currently less than the price it paid to acquire Monsanto. Ironically, bans and restrictions on glyphosate have done little to hurt Roundup sales, 90 percent of which are made to commercial farmers (the majority of glyphosate claims have been made by individuals who used the herbicide on their property or suffered workplace exposure). Bayer also has allies in the U.S. Administration. The EPA has refused to identify glyphosate as a “possible carcinogen,” and the federal government is threatening punitive measures against Thailand after its government voted to stop all sales of glyphosate in that country.
Bayer continues to defend the product, insisting that its glyphosate-based herbicides “can be used safely as directed and...is not carcinogenic.”