Bayer Appeals Roundup Lawsuits to U.S. Supreme Court Again

Third Supreme Court appeal comes as the company continues to lobby various states to pass laws that would shield it from liability in Roundup lawsuits.

Bayer is making a third attempt to get the U.S. Supreme Court to hear an appeal that seeks to prevent Roundup lawsuits from being pursued by former users diagnosed with non-Hodgkin’s lymphoma, while the company is still trying to convince a number of state legislatures to pass laws that would grant it immunity for failing to warn about potential side effects from the weedkiller.

Over the past decade Bayer, and its Monsanto subsidiary, have faced more than 120,000 Roundup cancer lawsuits, each alleging that the manufacturer failed to disclose that the active ingredient glyphosate may cause users to develop non-Hodgkin’s lymphoma and other injuries.

While the company has paid more than $10 billion in Roundup settlements over the past few years, Bayer and Monsanto continue to face thousands of active lawsuits being pursued throughout the U.S. court system, and new claims continue to be brought as former users of the weed killer develop non-Hodgkin’s lymphoma.

On Friday, Bayer filed a Writ of Certiorari (PDF), petitioning the U.S. Supreme Court to decide whether all Roundup failure-to-warn claims should be dismissed based on federal preemption, arguing that the company could not have updated the product’s labels without approval from the U.S. Environmental Protection Agency (EPA), which, to date, has stated that glyphosate is not a cancer-causing chemical.

That position is in contradiction to determinations made by the World Health Organization’s International Agency for Research on Cancer (IARC), which decided to classify glyphosate in Roundup as a probable cancer-causing agent in 2015.

This is the company’s third attempt to get the U.S. Supreme Court to weigh in on the litigation, with the petition coming after the Missouri Supreme Court rejected a similar Roundup appeal in February over a jury verdict handed down in October 2023, which awarded John Durnell $1.25 million in damages. 

Durnell indicated at trial that he began using Roundup in 1966, as part of the Soulard Restoration Project in St. Louis. As a direct result of the exposure, he claimed that he was diagnosed with non-Hodgkin’s lymphoma several years later, and a state court jury agreed.

Bayer indicates that differences of opinion between the Ninth and Eleventh Circuit Courts, and the Missouri Supreme Court, makes Durnell’s case ripe for review by the U.S. Supreme Court.

“The company argues that a split among federal circuit courts in the Roundup personal injury litigation, on the cross-cutting question of whether federal law preempts state-based failure-to-warn claims, warrants review and resolution by the country’s top court,” according to a press release issued by Bayer on April 4. “The stakes could not be higher as tens of thousands of Roundup cases are pending in state and federal courts, all of which rest on state-based failure-to-warn claims that should be preempted by federal law.”

Third Supreme Court Attempt

The Supreme Court has already rejected Bayer’s Roundup appeals before. The company petitioned the Court to review another Roundup trial defeat, involving an $87 million verdict awarded to a California couple, Alva and Alberta Pilliod in May 2019. However, the Supreme Court refused to review the case in June 2022. 

This followed a previous refusal to review another Roundup appeal in March 2019. The Court provided no comment about the reasons why the petitions were rejected in either case, which is not uncommon.

At the time, Bayer indicated it disagreed with the ruling and that it would look for future opportunities to bring the litigation before the high court. The company now indicates that recent differences of opinion between the Ninth and Eleventh Circuit Courts has provided that opportunity.

Bayer Lobbies States for Roundup Lawsuit Immunity

While seeking Supreme Court review, Bayer is also continuing with efforts to convince state lawmakers to pass legislation that would shield the company from Roundup cancer lawsuits.

On April 2, the Tennessee General Assembly’s Senate passed SB 0527, voting 21-7 to make pesticide companies immune from civil liability lawsuits in that state. The bill still needs to be passed by the state House, which will hold a judiciary committee hearing on the measure on April 9. If it makes it through the house, it would then need to be signed into law by the governor.

The Tennessee version of the bill indicates that manufacturers of pesticides approved by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) are not liable to civil actions linked to its labeling, if that label was approved by the EPA. At least 300 Roundup lawsuits have been filed in Tennessee.

However, the day the bill was passed, an amendment was added that indicates the protections do not apply “if a determination has been made by the EPA that a manufacturer knowingly withheld, concealed, misrepresented, or destroyed material information regarding the human health risks of such pesticide in order to obtain or maintain approval of its label by the EPA.”

Tennessee is just one of 17 states lobbyists for Bayer have convinced to pursue new laws that would ban citizens’ abilities to pursue product liability lawsuits. Of those, only Georgia has passed the litigation through both its state houses and awaits the governor’s signature.

At least 10 states currently have similar bills under debate. Six other states have rejected the proposals.