U.S. Solicitor General Sides With Cancer Victims In Appeal of $80 Million Roundup Verdict
For Immediate Release – May 11, 2022
For more information, contact: Leslie Brueckner, 510-520-2185
In an important legal development with positive ramifications for cancer victims across the country, the U.S. Solicitor General just urged the U.S. Supreme Court to deny a petition for certiorari by chemical producer Bayer seeking review of an $80 million Roundup verdict against Monsanto Corp. (which has since merged with Bayer) on the basis that the claims in that lawsuit are not barred by federal law. Bailey Glasser partner and co-lead of the firm’s Appellate and Supreme Court practice team Leslie A. Brueckner (then Senior Attorney with Public Justice), along with David Wool (formerly of Andrus Wagstaff, PC, now with Wool Trial Law LLC), Aimee Wagstaff of Wagstaff LLC, and Jennifer Moore (of Moore Law Group, PLLC) represented Edwin Hardeman, a man poisoned by Bayer’s Roundup product, in opposing Bayer’s petition for review.
“We are grateful that Solicitor General Elizabeth Prelogar refused to support Bayer’s attempt to skirt justice before the Supreme Court,” said Bailey Glasser partner Leslie Brueckner. “The Solicitor General agreed with the Ninth Circuit that EPA’s approval of Roundup’s label does not preempt state law claims against Monsanto for failing to warn that Roundup poses a serious cancer risk. We hope the Supreme Court agrees with her position and refuses to entertain any appeal. It’s literally a matter of life and death for the millions of consumers who continue to use Roundup across America.”
The appeal at issue arises from the only federal trial regarding Roundup, which yielded an $80 million verdict for Mr. Hardeman (later remitted to $25 million). After regularly spraying concentrated Roundup for 26 years, Mr. Hardeman was diagnosed with diffuse large B-cell lymphoma, a subtype of non-Hodgkin’s lymphoma (“NHL”). Hardeman sued Monsanto in February 2016, alleging his cancer was caused by his long-term exposure to Roundup.
In 2017, the jury found that “Mr. Hardeman prove[d] by a preponderance of the evidence that his exposure to Roundup was a substantial factor in causing his non-Hodgkin’s lymphoma,” that Monsanto failed to warn of Roundup’s risks, and that Mr. Hardeman proved by “clear and convincing evidence that he is entitled to punitive damages.” The jury awarded Hardeman roughly $5 million in, compensatory damages and $75 million in punitive damages due to Monsanto’s “reprehensible” conduct —later remitted to $20 million, bringing the total verdict to roughly $25 million.
Bayer/Monsanto appealed the case to the Ninth Circuit Court of Appeals, who rejected the company’s arguments. The company then filed a petition for certiorari to the U.S. Supreme Court, which then explicitly asked the U.S. Solicitor General for her opinion about whether the appeal should be accepted by the Supreme Court.
The Solicitor General’s brief, filed Tuesday, May 10, 2022, stated: “In light of the court of appeals’ decision and the change in Administration, the United States has reexamined the arguments it made below.” She added: “Although some aspects of EPA-approved labeling may preempt particular state-law requirements, EPA’s approval of labeling that does not warn about particular chronic risks does not by itself preempt a state-law requirement to provide such warnings.”
The significance of the change in position is a positive development for consumers. Two years ago, when the matter was pending before the Ninth Circuit, the Department of Justice under President Donald Trump, sided with Bayer in the case. The petition has to date attracted six amicus briefs from groups such as the U.S. Chamber of Commerce and Lawyers for Civil Justice. “We applaud the Solicitor General for taking a position that benefits and protects consumers,” said Brueckner.
Currently, the Bailey Glasser Trial Team made up of Brian Glasser, Leslie Brueckner, David Selby, Todd Mathews and Christina Hutchins along with David Wool are preparing to try the next Roundup case in St. Louis City. That case, currently set for trial in mid-July, will be the first case to be tried in Monsanto’s back yard. The case is Nathaniel Evans v. Monsanto.