After being asked in December 2021 to weigh in on whether the U.S. Supreme Court should take up Monsanto’s petition to review a $25 million Roundup cancer verdict, the U.S. Department of Justice (DOJ) has recommended that the lower court verdict be allowed to stand, potentially dashing Monsanto’s owner Bayer AG’s hopes that the nation’s high court would dismiss tens of thousands of similar lawsuits.
U.S. Solicitor General, Elizabeth B. Prelogar, the fourth-highest ranking official in the DOJ, said in an opinion filed with the Supreme Court on May 10 that Roundup cancer claims are not barred by federal law, Law360.com reported. The solicitor general is the Department of Justice’s officer responsible for representing the federal government before the Supreme Court.
If the Supreme Court agrees with the DOJ’s opinion, the 2021, 6-0 unanimous decision by California’s Ninth Circuit Court of Appeals in the case of Hardeman v. Monsanto would be upheld. Edwin Hardeman sued Monsanto in 2016, claiming that he developed non-Hodgkin’s lymphoma because he was exposed to Roundup for many years. A 2019 jury finding awarded Hardeman $80 million in damages, $75 million of which was punitive for Monsanto’s alleged manipulation of data and hiding the risks of exposure to glyphosate, the main active compound in the herbicide.
Hardeman’s award was later reduced to $25 million, but the Ninth Circuit ruled that the Environmental Protection Agency’s (EPA) approval of Roundup does not grant immunity to Monsanto from liability in personal injury cases.
Bayer petitioned the Supreme Court to review the Ninth Circuit’s ruling, arguing that the Federal Insecticide, Fungicide and Rodenticide Act, or FIFRA, preempts California state labeling laws.
According to the DOJ, The United States is involved in approximately two-thirds of all the cases that the U.S. Supreme Court decides each year. The Supreme Court does not always follow the DOJ’s recommendation, although it does the majority of the time. Out of 27 “Calls for the Views of the Solicitor General” (CVSGs) filed between May 20, 2016, and May 23, 2017, the Supreme Court followed the solicitor general’s recommendation 85 percent of the time (23 cases), data provided by the National Immigration Law Center reveals.
Bayer is also awaiting a Supreme Court decision on whether to review another Roundup personal injury bellwether trial that awarded a California couple, Alva and Alberta Pilliod, $87 million. The company is facing approximately 30,000 similar lawsuits and has already spent billions of dollars on Roundup litigation.