Garden supply store shelf with containers of Roundup weed control. Photo: Shutterstock

Despite losing three verdicts in California over Roundup, including this week's $2 billion jury award, Bayer AG isn't backing down.

In fact, its lawyers say, the fight has just begun.

“Jury trials are complicated things, and unpredictable things,” said Bayer attorney William Hoffman, a partner at Arnold & Porter Kaye Scholer in Washington, D.C. “We think we have very strong arguments based on the science and on the regulatory determination. Some aspects of that defense were hamstrung by evidentiary decisions, and some aspects of our defense were weakened by the determination of the court to let some shaky evidence in. Those are the kinds of things that will be the focus of our appeal, and those errors are part of the explanation for what's happened.”

Hoffman, along with two other Bayer attorneys, Lee Marshall, a San Francisco partner at Bryan Cave Leighton Paisner, and Eric Lasker, of Washington, D.C.-based Hollingsworth LLP, spoke with reporters Wednesday about Monday's verdict, which included $2 billion in punitive damages and $55 million in compensatory damages awarded to two plaintiffs, Alva and Alberta Pilliod. The jury, in Oakland, California, is the third to find that Roundup caused plaintiffs to get non-Hodgkin lymphoma. Previous juries in San Francisco awarded $289 million and $80 million in similar trials against Monsanto Co., now owned by Bayer.

The trifecta of courtroom losses sent Bayer shares spiraling and fueled speculation about a possible settlement of more than 13,000 lawsuits brought over Roundup across the country. In fact, U.S. District Judge Vince Chhabria, who oversaw the second trial, which was part of the multidistrict litigation over Roundup, has scheduled a mediation for May 22.

But settling doesn't seem to be part of Bayer's game plan. Hoffman said its lawyers would participate “in good faith” at this month's conference, but Bayer's lawyers appeared far from conceding defeat.

“My sense with Bayer right now is they've really dug in on litigating every case individually, and that's because they really believe they have enough evidence showing that glyphosate and Roundup is safe, and they want to continue with their particular strategy about that,” said Jean Eggen, a professor at Widener University Delaware Law School. “If they can win on appeal, they'll continue to litigate. If they lose on appeal, that might be the trigger to decide whether to go forward or settle.”

The appellate arguments include scientific studies and regulatory decisions not admitted into trial, federal preemption defenses, and facts specific to the plaintiffs that cast doubt on whether Roundup caused them to get non-Hodgkin lymphoma.

Some of those arguments already came up in Bayer's appeal of the $289 million verdict that was filed April 23. In all three trials, plaintiffs lawyers have relied heavily on a 2015 decision by the International Agency for Research on Cancer (IARC), classifying Roundup ingredient glyphosate as carcinogenic. R. Brent Wisner of Baum Hedlund Aristei & Goldman in Los Angeles, who was lead trial counsel in the two Roundup trials with the largest verdicts, told Law.com that juries have been “across the board impressed with our experts.” He also credited the $2 billion verdict to depositions of Bayer employees that weren't in the first two trials.

Bayer, in each trial, has cited a host of regulatory agencies around the world that have found glyphosate to be safe. Some of those regulatory decisions and studies have come out since IARC's finding, most prominently a review by the U.S. Environmental Protection Agency released last month that Alameda County Superior Court Judge Winifred Smith refused to allow into this month's trial as evidence.

That EPA finding also is important to Bayer's preemption defense, according to its lawyers. Bayer plans to argue that it would have been impossible to change the safety label on Roundup given the EPA's position.

“The EPA is not going to allow Monsanto to warn about a risk that the EPA does not think exists,” Marshall said. “As a result, there's an impossible situation with companies being held liable under state law for something it cannot do under federal law.”

Other appellate arguments are specific to the Pilliods. Bayer plans to argue that Smith should have severed the claims of the couple, given that “plaintiffs were allowed to put on evidence of the odds of a married couple both getting lymphoma,” Marshall said. Bayer also intends to argue that plaintiffs' experts failed to prove Roundup specifically caused their non-Hodgkin lymphoma.

“Both types of lymphoma we're talking about here are primarily idiopathic—meaning, there is no known cause for the disease in approximately 80% or more of cases,” Marshall said.

And the Pilliods both had a lot of risk factors, he said.

Other appeal arguments are specific to California. Hoffman said that Smith, unlike Chhabria and San Francisco Superior Court Judge Suzanne Bolanos, in the first trial, allowed plaintiffs attorneys in the Pilliod case to introduce evidence of California's Proposition 65, which in 2017 added Roundup ingredient glyphosate to its list of carcinogens. Also, under California law, Bayer did not fail to warn given the prevailing state of the science at the time.

And, of course, there's the punitive damages, which Bayer plans to argue were excessive and unconstitutional. Should punitive damages remain in place, Marshall said, they should be equal to the amount of compensatory damages: $55 million.

Bolanos reduced the $289 million verdict to $78.5 million—twice the amount of compensatory damages.

Bayer also is pinning its prospects on future Roundup trials, the first of which is set for Aug. 19 in a new venue: Missouri. Aimee Wagstaff, of Andrus Wagstaff in Lakewood, Colorado, lead plaintiff's counsel for that trial, said that this week's $2 billion jury award could make a difference.

“This verdict impacts other venues in that this verdict is yet another message to Bayer that it needs to make some difficult decisions,” she wrote in an emailed statement.

Hoffman disagreed. He said that each case has individual facts.

“We assess each case from trial to trial and there are unique circumstances in each case, and some of the determinations made in one case are not made in another,” he said. “We have to take each case as it comes, and that's our intention.”