Bayer Assails Criticism of its Strategy to Get Roundup Court Win

Bayer AG defended its strategy to get a favorable ruling in its Roundup litigation, saying that plaintiffs’ lawyers who accused the company of deceiving a court are “simply wrong.”

In response to criticism of Bayer’s deal to pay a Georgia man to keep fighting it in court, the company told the Atlanta-based federal appeals court Wednesday that lawyers leading the nationwide litigation over the weed killer are distorting the terms of the agreement.

Saying that it’s been “transparent” about what it’s doing, Bayer accused the lawyers who have complained of trying to “torpedo an arms-length settlement between two parties.”

Bayer has defended its confidential settlement with Georgia doctor John Carson, telling the court that the accord is structured in a way that’s been approved by other appeals courts. Bayer’s ultimate goal is to win a decision from the nation’s high court that would undermine a key claim in the lawsuits alleging Roundup causes cancer and curb a steady stream of new cases on top of the tens of thousands of claims the company has already resolved.

Wednesday’s filing, which urged the court to find that it has jurisdiction to take up Carson’s appeal, revealed that Bayer already has paid him $100,000, which he keeps if Bayer wins his appeal of a ruling the company already won at a lower court. If Carson didn’t go forward with the appeal, he was obligated to return the money, according to the filing.

Plaintiffs lawyers have wrongly described that aspect of the settlement as a “penalty clause,” Bayer argued. “There is no ‘penalty’ for failing to appeal,” the company argues. “Dr. Carson would just have to ‘reimburse’ the money Monsanto paid him under the settlement.”

Carson stands to win “substantially more” than $100,000 if he wins the appeal, according to the filing. Legal experts have said the doctor stands little chance of winning on his argument that the company had a duty to warn Roundup users about its cancer risk despite the product’s label having previously been approved by the U.S. Environmental Protection Agency. Bayer didn’t say how much more Carson gets if he prevails on appeal.

“These lawyers represent thousands of Roundup plaintiffs, and are evidently concerned that this court might decide the preemption issue in a way that could harm their other cases,” Bayer said.

Jennifer Moore, one of the plaintiffs’ lawyers asking the Atlanta appeals court to dismiss the Carson case, said the company’s response proves what she’s complaining about.

“The plaintiff wasn’t paid a penny for anything other than to bring an appeal against Monsanto,” she said. “Pay to appeal schemes like this one have no place in our justice system.”

The case is Carson v. Monsanto Co., 21-10994, U.S. Court of Appeals for the 11th Circuit (Atlanta).

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