The glyphosate litigation seemingly ended last week with the news that the manufacturer of Roundup had agreed to a $10.9 billion dollar settlement agreement that applied to the majority the pending claims against it across the country (the settlement has not yet been approved by the presiding judge). The legal community likely recalls the bellwether verdict in California where a jury awarded $80 million (later reduced to $25 million) to a plaintiff who successfully argued that the glyphosate ingredient in the popular weed killer caused his non-Hodgkin’s lymphoma. However, questions remain as to whether the settlement will truly end the glyphosate litigation or if, given the amount of the settlement, it will instead spur further lawsuits.
If history is any indicator of litigation trends then the answer is likely, no. Contrast glyphosate litigation to another toxic tort litigation – asbestos. When the principal asbestos manufacturers like Johns Manville exited the litigation, the plaintiff bar shifted its focus to the numerous down-stream suppliers and sellers that existed all over the country. It is not a stretch to predict that the plaintiff bar will handle glyphosate litigation similarly by re-focusing their efforts against the numerous down-stream suppliers and sellers of the popular weed killer, and the numerous other manufacturers that use the chemical in their own products.
Last week, The State of New York banned the use of glyphosate-containing products on state properties. While the move raises questions of sovereign immunity, similar to other states with limited sovereign immunity, the State of New York has a protocol that potential plaintiffs can follow to file tort claims against the State of New York. While the EPA has determined that it would be misleading for a warning to be put on the Roundup label, it has not impacted the appeal of the bellwether plaintiff verdict. In addition, the regulatory landscape looked at in a light most favorable to the plaintiff bar is still developing a consensus on the hazards of glyphosate.
In 2015, the World Health Organization (“WTO”) determined that glyphosate is a “probable” human carcinogen. This year (2020), EPA determined that glyphosate is not a human carcinogen and does not require a warning. EPA is currently facing court challenges from farm worker organizations and environmental groups over its determination given it conflicts with WTO’s determination. Therefore, it should not be so surprising that the State of New York has made this move while the perception is public confidence (and potential jurors) would be split between the EPA standard and WTO standard. While an objective regulatory standard is still in flux, we can expect that the plaintiff bar can seize the opportunity to identify new sellers/suppliers of glyphosate products to shift liability away from the manufacturer that is effectively exiting the litigation.
CMBG3 Law LLC has represented clients in products liability matters, especially with respect to allegedly toxic chemicals. We provide the most current legal advice to our clients by staying on top of developments in science, medicine, and regulations regarding a wide variety of substances and products used by consumers every day. If you have any questions or would like more information about our glyphosate practice, please contact John Gardella (617-279-8225) or Michaela Lancer (617-279-8216).