Appeals court upholds verdict against Bayer on herbicide Roundup

A San Francisco appeals court on Friday rejected Bayer AG’s second appeal of a series of jury verdicts finding its Roundup weed killer is a carcinogen.

In its appeal, Bayer, backed by the Environmental Protection Agency, argued states lack the authority to deviate from federal regulations for herbicides, nullifying the verdict, which was based on a California law. Roundup is manufactured by Monsanto, which Bayer acquired in 2018.

However, in the Friday ruling, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit ruled that the verdict under the state failure-to-warn law was consistent with the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA).

“In addition, because Monsanto could comply with both FIFRA and California law, FIFRA did not impliedly preempt [plaintiff Edwin] Hardeman’s state failure-to-warn claims,” the panel said in its ruling.

The court also ruled “that the district court did not abuse its discretion in admitting the International Agency for Research on Cancer’s classification of glyphosate as probably carcinogenic and three regulatory rejections of that classification by excluding evidence from other regulatory bodies,” the ruling stated. “The panel held further that even if these evidentiary decisions were erroneous, any error was harmless because it was more probable than not that the admission of the evidence did not affect the jury’s verdict.”

“Mr. Hardeman is very pleased that the Ninth Circuit affirmed the jury’s verdict,” Aimee Wagstaff, an attorney for Hardeman, told The Hill. “The Court ruled that ‘substantial evidence of Monsanto’s malice was presented to the jury, supporting punitive damages.’  Internal emails showed that Monsanto knew of the risk of cancer and failed to warn consumers like Mr. Hardeman.  Today is significant for consumers holding pesticide companies like Monsanto accountable.”

The ruling upheld the earlier ruling 2019 ruling in Northern District of California.

In a statment to The Hill, a spokesperson for Bayer said “We are disappointed with the Court’s decision as the verdict in this case is not supported by the evidence at trial or the law.”

“In particular, we believe the 9th Circuit decision is wrong on the issue of federal preemption as it is not possible for Monsanto to comply with federal law under which EPA has determined that a cancer warning is unwarranted and improper, and also comply with state law failure-to-warn claims seeking the very cancer warning EPA forbids,” the spokesperson continued.

“The company will pursue all legal options, including petitioning the U.S. Supreme Court to review this case.”

Bayer is separately appealing the third trial verdict and previously lost an appeal of the first but won a reduction in damages.

Updated 3:06 p.m.