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Bayer asks Supreme Court to overturn Roundup verdict

As it promised last month, Bayer, the world’s largest seed and agricultural chemicals company, asked the U.S. Supreme Court on Monday to overturn the $25-million award to Edwin Hardeman, a California man who blamed Roundup herbicide for giving him cancer. The appeal is a key element in Bayer’s plan to resolve billions of dollars of claims against Roundup and its active ingredient, glyphosate, the most widely used weedkiller in the world.

The Hardeman case, San Francisco, was the first Roundup lawsuit heard by a federal jury. As the first, it “will control thousands of other federal suits and undoubtedly influence still others pending across the country,” said Bayer, based in Germany.

In its appeal, Bayer contended that EPA approval of glyphosate as safe to use and without requiring a cancer warning on the label pre-empted California state law, and thus precluded lawsuits that allege Bayer failed to warn users of carcinogenic risks. The company also said the Ninth Circuit U.S. Court of Appeals allowed inappropriate testimony from expert witnesses about Roundup.

“This case is one of thousands across the country in which individuals have nonetheless alleged that petitioner violated a state-law duty to warn that exposure to Roundup could cause cancer,” said Bayer in its petition. “The Ninth Circuit concluded the respondent’s claims were not preempted by FIFRA [federal pesticide law] and upheld the admission of expert testimony on causation that relied on little more than subjective intuitions rather than reliable application of scientific principles.”

In March 2015, the UN International Agency for Research on Cancer set off a scientific and regulatory row when it declared that glyphosate is “probably carcinogenic to humans.” The EPA and EU were conducting periodic reauthorization of the herbicide at the same time. In early 2020, the EPA said its review found no threat to human health if glyphosate was used as directed and was unlikely to cause cancer.

In 2019, a federal court jury awarded Hardeman $80 million in damages from Bayer on his lawsuit claiming he contracted non-Hodgkin lymphoma from Roundup. The award was later reduced to $25 million. An appellate court upheld the verdict. Hardeman, 70, and his wife used Roundup for years on their land in Sonoma County to treat poison oak, undergrowth, and weeds, according to the law firm Baum Hedlund. He filed suit against Monsanto a month before the IARC ruling on glyphosate.

Bayer said it could be six months before the Supreme Court decides whether to hear its appeal. The company said on July 29 that it would withdraw glyphosate-based herbicides from sale in the United States for residential use, beginning in 2023. The weedkillers will remain available for agricultural and professional use.

Produced with FERN, non-profit reporting on food, agriculture, and environmental health.
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