"It's a win for the law firms and a slap in the face of the harmed."
Plaintiffs in the U.S. Roundup litigation are starting to learn the details of what Bayer AG's $10 billion settlement of cancer claims actually means for them individually, and some are not liking what they see.
Bayer said in late June it had negotiated settlements with several major plaintiffs' law firms in a deal that would effectively close out the bulk of more than 100,000 pending claims against Monsanto, which was purchased by Bayer in 2018. Plaintiffs in the litigation allege they developed non-Hodgkin lymphoma from exposure to Monsanto's Roundup and other herbicides made with a chemical called glyphosate, and that Monsanto covered up the risks.
While the deal initially seemed like good news for the plaintiffs – some who've struggled for years with cancer treatments and others who sued on behalf of deceased spouses - many are finding they could end up with little to no money, depending upon a range of factors. The law firms, however, could pocket hundreds of millions of dollars.
"It's a win for the law firms and a slap in the face of the harmed" said one plaintiff, who did not want to be named.
Plaintiffs are being told they must decide in the next few weeks if they're going to accept the settlements, even though they won't know how much they will personally be paid until much later. All the settlement deals order the plaintiffs not to talk publicly about the details, threatening them with sanctions if they discuss the settlements with anyone other than "immediate family members" or a financial advisor.
This has angered some who say they are considering rejecting the settlements in favor of seeking out other law firms to handle their claims. This reporter has reviewed documents sent to multiple plaintiffs.
For those who do agree, payments could be made as early as February, though the process of paying all the plaintiffs is expected to stretch out a year or more. Communications sent out from law firms to their Roundup clients sketch out both the process each cancer-stricken individual will need to go through to obtain a financial payout and what those payouts might amount to. The terms of the deals vary from law firm to law firm, meaning similarly situated plaintiffs may end up with vastly different individual settlements.
One of the stronger deals appears to be one negotiated by The Miller Firm, and even that is disappointing to some of the firm's clients. In communications to clients, the firm said it was able to negotiate roughly $849 million from Bayer to cover the claims of more than 5,000 Roundup clients. The firm estimates the average gross settlement value for each plaintiff at roughly $160,000. That gross amount will further be reduced by the deduction of attorneys' fees and costs.
Though attorneys' fees can vary by firm and plaintiff, many in the Roundup litigation are charging 30-40 percent in contingency fees.
To be eligible for the settlement, plaintiffs must have medical records supporting diagnosis of certain types of non-Hodgkin lymphoma and be able to show they were exposed at least a year before their diagnosis.
The Miller Firm has been at the forefront of the Roundup litigation since the outset, unearthing many of the damning internal Monsanto documents that helped win all three Roundup trials held to date. The Miller Firm handled two of those trials, bringing in lawyers from the Los Angeles firm of Baum Hedlund Aristei & Goldman to help with the case of Dewayne "Lee" Johnson after Miller Firm founder Mike Miller was severely injured in an accident just prior to trial. The two firms additionally worked together in winning the case of husband-and-wife plaintiffs, Alva and Alberta Pilliod. Johnson was awarded $289 million and the Pilliods were awarded more than $2 billion though the trial judges in each case lowered the awards.
Earlier this month, a California appeals court rejected Monsanto's effort to overturn the Johnson verdict, ruling that there was "abundant" evidence that Roundup products caused Johnson's cancer but reducing Johnson's award to $20.5 million. Appeals are still pending in the other two verdicts against Monsanto.
More than 100,000 pending claims against Monsanto allege people developed non-Hodgkin lymphoma from exposure to Monsanto's Roundup. (Credit: Mike Mozart/flickr)
To determine how much each plaintiff receives from the settlement with Bayer, a third-party administrator will score each individual using factors that include the type of non-Hodgkin lymphoma each plaintiff developed; the plaintiff's age at diagnosis; the severity of the person's cancer and the extent of treatment they endured; other risk factors; and the amount of exposure they had to Monsanto herbicides.
One element of the settlement that caught many plaintiffs off guard was learning that those who ultimately receive money from Bayer will have to use their funds to pay back part of the costs of their cancer treatments that were covered by Medicare or private insurance. With some cancer treatments running into the hundreds of thousands and even millions of dollars, that could quickly erase a plaintiff's payout. The law firms are lining up third-party contractors who will negotiate with the insurance providers to seek discounted reimbursements, the plaintiffs have been told. Typically in this sort of mass tort litigation, those medical liens can be substantially reduced, the law firms said.
In one aspect of the deal welcomed by plaintiffs, the settlements will be structured to avoid tax liability, according to the information provided to plaintiffs.
Risks in not settling
The law firms must get a majority of their plaintiffs to agree to the terms of the settlements in order for them to proceed. According to the information provided to plaintiffs, settlements are desired now because of a number of risks associated with continuing to pursue additional trials. Among the risks identified:
- Bayer has threatened to file for bankruptcy, and if the company did take that route, settling Roundup claims would take far longer and likely ultimately result in far less money for plaintiffs.
- The Environmental Protection Agency (EPA) issued a letter last August telling Monsanto that the agency won't allow for a cancer warning on Roundup. That helps Monsanto's future chances of prevailing in court.
- Covid-related court delays mean additional Roundup trials are unlikely for a year or more.
It is not unusual for plaintiffs in mass tort litigation to walk away disappointed even with seemingly large settlements negotiated for their cases. The 2019 book "Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation" by Elizabeth Chamblee Burch, the Fuller E. Callaway Chair of Law at the University of Georgia, makes the case that a lack of checks and balances in mass tort litigation benefits nearly everyone involved except the plaintiffs.
Burch cites as an example litigation over the acid-reflux medicine Propulsid, and said she found that of the 6,012 plaintiffs who entered into the settlement program, only 37 ultimately received any money. The rest received no payouts but had already agreed to dismiss their lawsuits as a condition of entering into the settlement program. Those 37 plaintiffs collectively received little more than $6.5 million (roughly $175,000 each on average), while the lead law firms for the plaintiffs received $27 million, according to Burch,
Setting aside what individual plaintiffs may or may not walk away with, some legal observers close to the Roundup litigation said a greater good has been achieved with the exposure of corporate wrongdoing by Monsanto.
Among the evidence that has emerged through the litigation are internal Monsanto documents showing the company engineered the publishing of scientific papers that falsely appeared to be created solely by independent scientists; the funding of, and collaborating with, front groups that were used to try to discredit scientists reporting harm with Monsanto's herbicides; and collaborations with certain officials inside the Environmental Protection Agency (EPA) to protect and promote Monsanto's position that its products were not cancer-causing.
Several countries around the world, as well as local governments and school districts, have moved to ban glyphosate herbicides, or other pesticides, because of the revelations of the Roundup litigation.
Banner photo: Bayer Crop Science Division office headquarters. (Credit: Tony Webster/flickr)