In an attempt to get a case to the Supreme Court, Bayer AG has entered into a deal with Georgia doctor John Carson where he is required to appeal his Roundup case and continue fighting against the company.
Carson sued Bayer in 2017, and after Judge R. Stan Baker in Savannah did not throw the case out at the company’s request, litigation moved forward. Baker decided in December 2020 that Bayer had no duty to warn Roundup users about its cancer risk because the Environmental Protection Agency (EPA) had approved the product’s label. Other U.S judges have rejected this type of claim, known as a preemption claim.
For Judge Baker’s decision to impact other Roundup lawsuit cases, Bayer needs a federal appeals court to agree. The company entered into a settlement with John Carson’s lawyer, Ashleigh Madison, in order to ensure that Carson appeals. Bayer will be paying Carson as long as he follows through with appealing the preemptive question to the U.S. Court of Appeals in Atlanta. Carson must also surrender any claims that he won.
Bayer defends its settlement, explaining in a statement that it will pay Carson an undisclosed sum. However, Carson will receive more money if he wins on appeal according to court records.
“The parties have reached an agreement to resolve the Carson case on confidential terms contingent on the outcome of future appellate review of the district court’s dismissal of his failure-to-warn claims on federal preemption grounds,” Bayer said.
If Bayer succeeds in Atlanta and then has a case heard by the Supreme Court, the company could potentially save hundreds of millions of dollars. The Supreme Court is likely to only hear Bayer’s case if there is a contradictory decision in a different appeals court. Before any of this can occur, Bayer must first win in Atlanta. The company has shown confidence in its argument, stating in a legal brief that laws and regulations “make clear” that the EPA’s approval of a Roundup label without a warning should decide the case.
A Loyola Law School professor, Adam Zimmerman, also agrees that a favorable Supreme Court ruling on preemption could curb the steady stream of Roundup lawsuits.
“If you win on preemption, and you win at the Supreme Court, that’s a win that works in federal court, in different circuits and across the state courts in a way that can finally bring an end to a significant piece of the litigation,” Zimmerman said.
Madison has declined to comment, and Carson has not returned calls to his office. Reportedly Madison has shared with other lawyers that the settlement is the “best possible outcome” for Carson and that, under the deal’s terms, the appeal is in his “best interest.”
Reference: Joel Rosenblatt. “Bayer Deal Pays Roundup Plaintiff to Keep Fighting in Court.” Bloomberg, www.bloomberg.com/news/articles/2021-04-21/bayer-deal-pays-roundup-plaintiff-to-keep-fighting-it-in-court.