Last Friday, the U.S. Supreme Court agreed to hear an appeal filed by Bayer over claims against its Roundup weed killer—news that sent the German company’s stock soaring.
There’s good reason for the market’s optimism. As St. Louis attorney Javad Khazaeli explained on last month’s Legal Roundtable on St. Louis Public Radio, the court could potentially be interested in the case in part due to a split in the federal appellate circuits. (The 3rd circuit, based in Philadelphia, has halted such claims, while other circuits have allowed them.)
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But even with a split, Khazaeli warned, there’s typically only a 1 percent chance the court will take a given case. “The most likely outcome is the Supreme Court will just ignore it,” he said.
If the court agrees to hear the appeal, it’s because they want to overturn a precedent—in this case, to rule for Bayer.
“If they grab this,” he predicted, “it’s bad times.”
They just grabbed it. And “bad times” for plaintiff’s lawyers like Khazaeli likely means good news for Bayer.
Why It Matters: The litigation brings to a head the national controversy around glyphosate, a herbicide that’s long been in use but has increasingly been targeted by plaintiff’s attorneys and environmentalists alike. “The Supreme Court decision to take the case is good news for U.S. farmers, who need regulatory clarity,” Bayer CEO Bill Anderson said in a statement. “It’s also an important step in our multi-pronged strategy to significantly contain this litigation. It is time for the U.S. legal system to establish that companies should not be punished under state laws for complying with federal warning label requirements.”
The matter is also very much a St. Louis legal battle, with repercussions for several industries here. Roundup is a product of St. Louis-based Monsanto, which Bayer acquired in 2018. And this lawsuit comes out of the St. Louis circuit. City resident John Durnell had sued Bayer, saying Roundup exposure led to his cancer diagnosis. The jury returned a $1.25 million verdict—small by Roundup standards. When the Missouri Court of Appeals upheld the verdict, Bayer appealed to the Supreme Court with a little help from Solicitor General D. John Sauer, a St. Louis native who previously served as the state’s solicitor general.
In the years after Bayer purchased Monsanto, the company has been hit with a staggering 56,000 lawsuits over Roundup, dragging down its stock and the overall company’s prospects. Bayer has said that it could halt production of Roundup if neither the courts nor Congress intervenes to stanch the litigation.
A win at the Supreme Court would overturn not just Durnell’s victory, but effectively halt tens of thousands of state court claims against Roundup. If the court rules for Bayer, it would likely hold that people cannot sue the company for failing to warn of a cancer risk since the product was approved by federal regulators. Those claims have been a boon to St. Louis’ legal community; it’s hard to find a big law firm in town that hasn’t made an appearance for either Bayer or one of its many alleged victims.
St. Louis County’s presiding judge, Bruce Hilton, brought up the deluge of lawsuits in his jurisdiction in a recent interview with SLM.
“In all candor, we have, I’m gonna get this number wrong, over 2,200 Monsanto cases that take five weeks [each] to try,” Hilton said. “We wouldn’t be able to try those in our lifetime. Those create a bigger hurdle for my colleagues than anything else.” With a favorable court ruling, those lawsuits—and all the billable hours for local attorneys—could come to an abrupt end.
What’s Next: The Supreme Court is expected to hear the case this spring, with a ruling likely by July.
