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May 4, 2021 — After Bayer AG entered into a deal with a plaintiff to keep him fighting the company in court, lawyers for the tens of thousands of other plaintiffs in the Roundup multidistrict litigation are calling out the company’s ill-intentioned move.

Bayer is striving to attain a favorable ruling in the Roundup lawsuit litigation that claims exposure to its glyphosate-based herbicide leads to non- Hodgkin’s lymphoma.  The most recent step taken toward the company’s goal was entering into a deal with Georgia doctor, John Carson.  Bayer’s strategy is to win a decision from the Supreme Court that would undermine a key claim in the Roundup lawsuits and stop any more cancer cases from piling on top of the ones the company has already had to answer to.

Bayer defended its deal, informing the court that the structure of the accord has been approved by other appeals courts. “The company has been completely transparent about its desire to appeal Roundup failure-to-warn cases on federal preemption grounds, and this settlement, which the plaintiff voluntarily agreed to, is an appropriate path for such an appeal,” the company said in a statement.  

Roundup plaintiffs’ lawyers did not agree.  In a letter they penned to an Atlanta-based U.S. Court of Appeals on April 20, 2021, they wrote that Bayer’s actions were a manufactured “pay-to-appeal scheme” that will erode the U.S. system of justice if it’s permitted.  They also stated that, “The court should reject this brazen manipulation of our judicial system.”

While Bayer disclosed a few details of the deal in a notice to the Atlanta court, it did not mention what the plaintiffs’ lawyers described as an onerous $100,000 penalty Carson is required to pay if he backs out of his appeal.  Bayer’s omission is described in the letter to be “on its face misleading, and speaks to the deceptive nature of this appeal.”  The letter illustrates the insidious plan by explaining that Bayer is “paying Carson to appeal and then threatening him if he does not follow through,” according to the letter.

Carson has not responded to requests for comment and his lawyer, Ashleigh Madison, has declined to comment.

The case is Carson v. Monsanto Co., 21-10994, occurring in the U.S. Court of Appeals for the 11th Circuit (Atlanta).

Bayer has offered to pay up to $11.6 billion to resolve existing Roundup lawsuits from approximately 125,000 consumers in the U.S. and future claims. New lawsuits are being filed almost every day.

Reference:  Rosenblat, Joel. “Plaintiff Lawyers Accuse Bayer of ‘Pay to Appeal Scheme’ in Roundup Litigation.” Insurance Journal, 23 Apr. 2021, www.insurancejournal.com/news/national/2021/04/23/611263.htm.

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Gayle Gerling Pettinga

Born and raised in Evansville, Gayle is a respected, experienced lawyer and a valued community leader. She graduated near the top of her class at Indiana University’s prestigious Maurer School of Law. She’s practiced law with one of the largest firms in Indianapolis as well as one of the largest pharmaceutical companies in the world. And that means she knows how big law firms and big companies think and how they operate – and she will put that knowledge to work for you.

Gayle has received numerous awards and honors including Martindale-Hubbell — Peer Review Rated: AV®, American Institute of Personal Injury Attorneys 10 Best Attorneys in Indiana for Exceptional and Outstanding Client Service, and YWCA Evansville 100 Years, 100 Women Honoree, 2011.

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