Judge Cuts $2 Billion Verdict Against Bayer in Tentative Ruling on Weed-Killer Case

Judge Cuts $2 Billion Verdict Against Bayer in Tentative Ruling on Weed-Killer Case

(Bloomberg) -- Bayer AG is poised for a reduction of more than 90% in the $2 billion verdict it was hit with in the most recent trial over its Roundup weedkiller.

After a jury concluded the company’s herbicide caused cancer in a husband and wife, a California state judge said in a tentative ruling late Thursday that she won’t throw out the verdict entirely.

But the Oakland judge said she’s inclined to whack the couple’s 10-figure punitive damage awards because they’re beyond the limits allowed by legal precedent. Under her ruling, total damages could end up being in the range of $20 million to $100 million, according to a lawyer for the couple, Brent Wisner. That’s in line with what experts predicted. Bayer shares rose almost 1.5% in Frankfurt trading.

The German health-care and agricultural giant made arguments at a hearing Friday to try to convince the judge that it deserves a new trial. She didn’t issue any final rulings.

Even with the awards slashed, Bayer is still in trouble, said Anna Pavlik, senior counsel for special situations at United First Partners LLC in New York. More than 13,000 plaintiffs in the U.S. have sued Bayer, claiming Roundup causes cancer. The weedkiller was first marketed in the 1970s by St. Louis-based Monsanto Co., which was acquired by Bayer last year for $63 billion.

“As long as the per-plaintiff verdicts remain in the millions, the reductions in punitive damages still do not help Bayer when it is thinking about its ultimate litigation and settlement strategy,” Pavlik said before the tentative ruling was issued. “Without any wins under its belt, Bayer is still facing enormous per-plaintiff payouts.”

The Oakland verdict was the third straight loss for Bayer on Roundup since last summer. Meanwhile, dozens of new complaints are filed across the U.S. every month.

‘Unnecessarily Theatrical’

Bayer argued in a court filing that it deserves a new trial in the Oakland case due to misconduct by lawyers for the couple, Alva and Alberta Pilliod, that turned the courtroom “unnecessarily theatrical.” To scare jurors, a lead trial lawyer wore gloves to handle a Roundup bottle, Bayer says, adding the panel remained confused even after the judge pointed out there was only water inside.

The lawyers also participated in photo opportunities outside the jury room with celebrities Neil Young and Daryl Hannah, who are anti-Monsanto activists, according to the filing.

California Superior Court Judge Winifred Smith rejected Bayer’s claims in her tentative ruling, saying that while the plaintiffs’ counsel occasionally overstated matters and violated her orders, that didn’t create prejudice against the company.

The $2 billion jury award was the largest in the U.S. this year and the eighth-largest ever in a product-defect claim, according to data compiled by Bloomberg. Analysts’ estimates for the costs to settle all the lawsuits Bayer faces in the U.S. range from about $2.5 billion to $20 billion.

What Bloomberg Intelligence Says:

Bayer could be liable for hundreds of billions of dollars if verdicts delivered in August, March and May are repeated, given a reported 13,400 consumers have filed similar claims, though the company will likely pay less. Settlement value of cases could average $500,000 apiece, based on comparable mass-tort settlements, meaning the total payout may be around $6-7 billion. The number of cases has more than doubled since 2Q18.

Holly Froum, consumer litigation analyst

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The U.S. Supreme Court has ruled the Constitution requires that punitive damages be no higher than a single-digit multiple of damages awarded to compensate plaintiffs for pain, suffering and economic losses.

For the Pilliods that total was $55 million. Bayer argues even that was excessive -- and the judge seemed to agree, saying the pain and suffering awards for both wife and husband weren’t fully supported by the evidence at trial.

Bayer said in an emailed statement that the proposed damages reduction in Thursday’s order is a “step in the right direction.”

“Bayer has many strong arguments to challenge the verdicts and damages in these cases that we will raise on appeal,” company spokesman Chris Loder said in an email before the tentative ruling. “Mass torts require a long, multistep process, and there is not a single verdict that is final at this time. We will fully exercise our rights to defend our products through all stages of this litigation.”

Amy Alderfer, a lawyer who represents companies in product liability litigation, predicted Bayer will win a significant cut in the Pilliods’ damages. But she said the company has little chance of getting the judge to throw out the verdict because that’s tantamount to admitting an error.

Showing Resolve

“It’s a hard sell to convince a trial court judge to reverse herself,” Alderfer said.

Smith said in her ruling that Bayer is entitled to a new trial if the Pilliods refuse to accept the smaller damages award. After the first Roundup trial last summer, a school groundskeeper who was awarded $289 million in damages accepted a judge’s reduction to $78.6 million rather than allow Bayer a new trial.

Michael Miller, a lawyer for the Pilliods, declined to comment on any potential cuts to the damage awards.

Alderfer said there’s good reason for Bayer to keep fighting the Roundup lawsuits. Bayer’s attempts to undo its early defeats are an important show of resolve, she said.

“You continue to telegraph to plaintiffs and their lawyers that you’re disputing this, and you’re not going to just accept these verdicts,” the attorney said. “It shows you’re still willing to fight. Showing any position of strength you can leads you to a better settlement position.”

Pavlik said a ruling reducing damages “marginally helps” narrow the gap in settlement negotiations between what plaintiffs’ lawyers demand and what Bayer is willing to pay per plaintiff. What the company really needs is to overturn the verdicts or to win its next trial, she said.

Even though Bayer already has persuaded judges to knock down jury awards in the other two cases it lost, it’s a “moral win” for plaintiffs that jurors were convinced by the evidence against Bayer, Pavlik said.

“The juries believe Monsanto did something wrong,” she said. “That gives the plaintiffs an upper hand. Basically the juries are eating out of the plaintiffs’ lawyers’ hands, saying ‘You want two billion? We’ll give you two billion -- we’re that upset.’”

The Oakland case is Pilliod v. Monsanto Co., RG17862702, California Superior Court, County of Alameda (Oakland).

--With assistance from John Lauerman.

To contact the reporter on this story: Joel Rosenblatt in San Francisco at

To contact the editors responsible for this story: David Glovin at, Peter Blumberg, Joe Schneider

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