Bayer bets on ‘silver bullet’ defense in Monsanto Roundup cancer litigation

German pharmaceutical firm Bayer plans to argue that a $2 billion jury award and thousands of US lawsuits claiming its glyphosate-based weed killer Roundup causes cancer should be dropped.

The company points to a US regulatory agency’s provision that the herbicide is not a public health risk. On Wednesday, Bayer said it will argue that the lawsuits, which are brought under state law, conflict with guidance from a federal agency, the US Environmental Protection Agency (EPA).

Back in 1985, the watchdog labeled glyphosate a carcinogen, reversing its position later in 1991. Last month, the EPA reaffirmed prior guidance saying that glyphosate is not a carcinogen and not a risk to public health when used in accordance with its current label.

Under the legal doctrine of preemption, state law claims are barred if they conflict with federal law.

“We have very strong arguments that the claims here are preempted… and the recent EPA registration decision is an important aspect of that defense,” said William Hoffman, one of Bayer’s lawyers.

According to Adam Zimmerman, a law professor at Loyola Law School in Los Angeles, preemption is generally regarded as a “silver bullet defense” because it stops claims across the board.

Zimmerman and three other legal experts nevertheless said that Bayer faces a big hurdle convincing appeals courts that the EPA determination on glyphosate shields it from state law claims.

They cited a 2005 US Supreme Court ruling that the EPA’s approval of a product does not necessarily bar state law claims. The experts also said that the ruling, Bates v Dow Agrosciences, gives broad leeway to juries to decide if such claims should proceed.

Judges in the three Roundup cases that have gone to trial against Monsanto all dismissed the company’s preemption argument, citing the 2005 ruling.

“In light of the Bates decision, it’s going to be an uphill battle for the company to win on preemption on appeal,” said Zimmerman.

The pharmaceutical giant’s chances of success will increase significantly if the Supreme Court takes up the Roundup appeals, said Lars Noah, a law professor at the University of Florida.

Since 2005, the high court has decided at least three preemption cases in favor of companies, none of which involved the EPA.

“The Bates decision by now sticks out like a sore thumb,” Noah told Reuters, adding: “Bayer has more than enough ammunition in recent Supreme Court cases to show the trial court judges got it wrong.”

On Monday, a US jury awarded $2 billion in punitive damages to a California couple after concluding that Roundup weed killer caused their cancer and that Monsanto, now owned by Bayer, failed to warn them of the health risks.

That was the third time since August 2018 that a US jury has found glyphosate to be a cause of cancer. Bayer is currently facing a total of 11,200 US cases over Roundup and its active ingredient glyphosate, which is the most popular weed killer in the US.

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