As someone who's spent a good portion of my professional life asking questions, I marvel at the interrogatory skill of some judges. 

U.S. District Judge Vince Chhabria, who is overseeing the multidistrict litigation over claims that the herbicide Roundup causes cancer, is one of such judges who can craft a question that will waylay even the best lawyer. He notably got an attorney for Facebook to say that users have "no privacy interest" in their postings marked as private during a testy oral argument in a separate MDL he's handling over the social media company's Cambridge Analytica fiasco.

So it was of little surprise to me that lawyers who had sought preliminary sign off from Chhabria on a proposed $1.1 billion class action settlement designed to resolve all future cancer-causing claims against Bayer, the parent company of Roundup maker Monsanto, that he'd have some doozies for them. I just didn't expect him to air them before any hearing on the proposed settlement, and for his questions to have the almost immediate effect of prompting the parties to withdraw their proposed deal and go back to the drawing board.

Let's back up a bit. The proposed $1.1 billion deal in front of Chhabria was just a portion of the coordinated settlements Bayer announced in Roundup cases last month—deals that could tally as much as $10.9 billion to settle current and future claims brought on behalf people who claim that glyphosate, the active ingredient in the wildly popular weedkiller, causes non-Hodgkin's lymphoma. While the majority of the settlements that are part of the package involve individually filed cases or cases set to be filed by individuals who have already retained a lawyer, the proposed class action deal sought to cover a class of people have developed cancer but haven't yet sued or users who don't yet have cancer, but develop it down the road.

I imagine the fact that the proposed class counsel called it "an unusual settlement for an unusual class" in their preliminary approval papers, set Chhabria's wheels turning. 

In a pithy four-page order issued Monday, Chhabria made it clear that he takes seriously his role under Rule 23 of the Federal Rules of Civil Procedure to scrutinize the deal. Responding to other lawyers who had asked for additional time to file oppositions to the proposed deal, Chhabria declined to delay. He wrote, "if the motion would already be denied on the current record, it would be a waste of time and money to wait for hundreds of pages of briefing from dozens of lawyers and law professors from around the country, no matter how interesting those briefs would be."  

Zing. 

At the heart of Chhabria's concern was a mechanism proposed in the settlement for a panel of five experts agreed upon by both sides to determine whether glyphosate causes non-Hodgkin lymphoma. Chhabria wrote that regardless of the settling parties' wishes, it was "questionable whether it would be constitutional (or otherwise lawful)" to have a panel of scientists decide general causation for all future cases.

Even if it were lawful, the judge openly questioned the wisdom of that approach for plaintiffs, especially since the deal would limit potential payouts to compensatory damages. "Thus far, judges have been allowing these cases to go to juries, and juries have been reaching verdicts in favor of the plaintiffs, awarding significant compensatory and punitive damages," he wrote. "Why would a potential class member want to replace a jury trial and the right to seek punitive damages with the process contemplated by the settlement agreement?" 

Good question.

And he followed that up with this: "In an area where the science may be evolving, how could it be appropriate to lock in a decision from a panel of scientists for all future cases?" The judge posited the hypothetical of the scientific panel determining in 2023 that Roundup doesn't cause cancer, only to have it's conclusion undermined five years later by a credible study reaching a contradictory conclusion. "If a Roundup user is diagnosed with NHL in 2030, is it appropriate to tell them that they're bound by the 2023 decision of the panel because they did not opt out of a settlement in 2020?"

Another good question.

The proposed class counsel and Bayer seemingly acknowledged as much Wednesday as they withdrew the proposed deal rather than bring their motion before Chhabria for what was bound to be a skeptical hearing later this month. 

"The withdrawal will enable the parties to more comprehensively address the questions recently raised," Bayer said in a statement. "Mass tort settlements agreements like this are complex and may require some adjustments along the way, but the company continues to believe that a settlement on appropriate terms is in the best interest of Bayer and all of its stakeholders."

The question that I am left with is whether Chhabria's order forestalled a potentially messy, internecine fight between those attempting to settle the future claims via the class action vehicle and the mass torts lawyers who have been gathering and working the Roundup cases one-by-one? Among the dozen or so firms asking Chhabria for more time to respond to the proposed deal was Napoli Shkolnik, which had brought on Constitutional law specialist Thomas Goldstein and his firm Goldstein & Russell as co-counsel. 

Whether Chhabria's early prodding of the proposed deal ultimately results in a more workable solution for everybody or just inspires further scrutiny from those left on the sidelines of the negotiations is an open question. And a good one.