There are numerous pending lawsuits revolving around Bayer AG and an herbicide product known as Roundup – with claims that the herbicide is causing cancer. Well, Bayer AG suffered a blow January 28 when a federal judge tentatively agreed to allow controversial evidence the company had hoped to exclude from upcoming trials.
At a hearing in San Francisco federal court, U.S. District Judge Vince Chhabria said his decision was “probably most disappointing for Monsanto.” (In 2016, Bayer and Monsanto merged for a whopping $66 billion.)
Bayer insists that glyphosate, the chemical in Roundup that is alleged to cause cancer, is safe and that decades of independent studies back that claim.
Chhabria ruled that plaintiffs could include some of Monsanto’s allegedly ghost-written studies and attempts to influence the findings of scientists and regulators during the first phase of upcoming trials. The judge said that documents which showed the company taking a position on the science or a study during the first phase were “super relevant.”
On January 3, Chhabria issued an order limiting evidence of corporate misconduct. The move lifted Bayer’s shares nearly 7% and made the company optimistic that Chhabria would take a harder line on similar damning evidence. At the time, Bayer called such evidence a “sideshow” intended to distract jurors from scientific evidence.
Lawyers for the plaintiffs argued that evidence of corporate misconduct was integral to proving the company’s scientific claims are skewed in favor of Monsanto (now Bayer).
Chhabria agreed, saying the line between scientific evidence and corporate misconduct was a murky one and questioned whether it would be fair for the jury not to hear about Monsanto’s alleged attempts to influence scientists.
The parties agreed to exclude other internal documents, including internal e-mails on Monsanto employees discussing lobbying efforts, from the initial trial phase. However, that evidence could come into play if glyphosate is found to have caused plaintiff Edwin Hardeman’s cancer and the trial proceeds to a second phase to determine Bayer’s liability.
The order applies to Hardeman’s case, which is set for trial on February 25, and 2 other upcoming cases. Of the more than 9,300 Roundup lawsuits pending nationwide, 620 of them are before Chhabria.
In August, a jury awarded former school groundskeeper DeWayne Johnson $289 million in a similar case, sending Bayer shares tumbling. That award was later reduced to $78 million and is under appeal. Plaintiffs’ lawyers say corporate misconduct evidence was crucial to that decision.