Judge Vince Chhabria of the California Northern District denied a motion for preliminary approval for a settlement in a multidistrict litigation matter involving allegations that the herbicide Roundup led to users developing non-Hodgkin’s lymphoma. The Order, filed on Wednesday, specifically rejected the settlement for potential future plaintiffs, both individuals diagnosed with non-Hodgkins lymphoma and those yet to be diagnosed.
“It is unnecessary to evaluate whether the settlement is reasonable for the first group because it is clearly unreasonable for the second group—the Roundup users who have not been diagnosed with NHL,” the judge said. “This ruling merely discusses some of the most glaring flaws with the proposed settlement and the plaintiffs’ presentation in support of it.”
Chhabria explained that under the settlement, Roundup users who are not diagnosed with non-hodgkins lymphoma would be provided medical monitoring for four years and a compensation fund, which is projected to last four years. If they are diagnosed within four years they will be able to make a claim.
The judge said that the benefits of the medical monitoring are “far less meaningful than the attorneys suggest,” because of the long latency period the disease has when it comes from herbicide use, reportedly 10-15 years after exposure. The judge further ruled that because the fund is designed to last four years, and the funds could be used sooner, the benefits of this fund are “vastly overstated.”
The order explained that “in exchange for these tenuous benefits, the proposed agreement calls upon class members to make two major sacrifices. First, although class members retain the ability to sue Monsanto upon diagnosis if they choose to forego compensation from the fund or if the fund has expired, they lose the right to seek punitive damages. Second, in any trial where class members seek compensatory damages, they must stipulate to the admission of the opinion of a seven-member science panel about whether Roundup can cause NHL.”
Reportedly, punitive damages in individual Roundup cases have been high; the Order cited one case where the plaintiff was awarded $5 million in punitive damages despite that the plaintiff had recovered by the trial, so the future plaintiffs could be losing significant money by giving up the ability to seek punitive damages.
“The attorneys pushing this deal repeatedly intone that it will be difficult for Roundup users who are diagnosed with NHL in the future to get a trial, given the limited capacity of courts and given that many plaintiffs will be ‘in line’ ahead of them. This means, the attorneys imply, that relinquishing the ability to seek punitive damages at trial is no big deal,” the order said. “This is not a situation where the defendant is at risk of going bankrupt, such that only the first set of plaintiffs will be able to recover. Bayer (which recently acquired Monsanto) is a massive, wealthy company, and it continues to make money specifically from Roundup sales.”
Chhabria claimed that the proposed settlement would do a lot for Monsanto, diminishing settlement exposure and litigation, but would not do much for Roundup users and their attorneys pushing for the settlement.
The court noted that at the hearing on settlement approval last week it hinted that a ruling on the motion might take some time, but that this was based on an assumption that the parties may submit revisions to the settlement. The order explained that it later determined that “mere tweaks cannot salvage the agreement.” It said that if the settlement is altered to protect the interests of Roundup users who are not yet diagnosed, a new motion for preliminary approval can be filed.