In what Bayer’s legal team called one of the most important developments in seven years of Roundup litigation, the 11th U.S. Circuit Court of Appeals agreed to review a three-judge panel’s ruling that found that Roundup weedkiller was responsible for causing a Georgia man’s cancer, Turfnet.com reported.
The federal appeals court ruling reopens a lawsuit filed by John Carson whose medical records show he was diagnosed with cancer in 2016. Carson claimed that he had used Roundup weedkiller for 30 years.
On Oct. 28, 2022, a three-judge panel for the 11th Circuit Court ruled in favor of Carson. However, on Jan. 6, 2023, the 11th Circuit said that its entire panel of judges—there are 12 authorized active judgeships on the 11th Circuit—granted Bayer’s rehearing petition, which vacated its earlier ruling.
The central issue the 11th Circuit will look at in reviewing Carson’s case against Monsanto, which Bayer AG purchased in 2018 for $63 billion, is whether Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) labeling laws preempt failure to warn claims at the state level.
The three-judge panel within the 11th Circuit ruled that FIFRA does not preempt state failure-to-warn claims, ostensibly agreeing with Carson's attorneys that Roundup weedkiller products should have a cancer warning on the product label.
In 2015, a cancer research arm of the WHO, the International Agency for Research on Cancer (IARC) designated glyphosate, the active ingredient in Roundup as Group 2A, meaning “probably carcinogenic to humans” based on “limited” evidence of cancer in humans (from real-world exposures that actually occurred) and “sufficient” evidence of cancer in experimental animals (from studies of “pure” glyphosate).
However, the EPA has said there is insufficient proof that glyphosate causes cancer.
After juries awarded multi-million-dollar awards to plaintiffs in the first three consumer Roundup trials, which took place in 2018 and 2019, Bayer settled approximately 95,000 Roundup cancer lawsuits for $11 billion in 2020. Another 30,000 cases remain unresolved.
Should the 11th Circuit return a split decision in the Carson case, the U.S. Supreme Court may decide to hear it, despite refusing to revisit two of the three aforementioned Roundup trials last year.