Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud
Speaker 1: and on Bloomberg dot com slash podcasts. Buyer has lost
Speaker 1: a second trial over claims that it's round Up we'd
Speaker 1: killer causes cancer, and it was a big loss. The
Speaker 1: jury awarded eighty point three million dollars to Edwin Hardeman,
Speaker 1: who sprayed the herbicide on his property for decades and
Speaker 1: said it caused his non Hodgkins lymphoma. Seventy five million
Speaker 1: of that award was punitive damages. Buyer plans to appeal
Speaker 1: the verdict and vowed to keep defending round Up, which
Speaker 1: it says is safe, as it faces more than eleven
Speaker 1: thousand lawsuits joining me as Robert Hockett, a professor at
Speaker 1: Cornell Law School, Bob, what did the jury find here? Oh? So, yeah,
Speaker 1: it found a couple of things. Up. Of the first,
Speaker 1: there's several questions that kind of combine in a case
Speaker 1: like this, right, So the first sense to do with
Speaker 1: whether indeed there is a significant cancer risk associated with
Speaker 1: a particular product. Right. Another thing then is um was
Speaker 1: there some kind of culpability on the part of the
Speaker 1: firm in sort of failing to notify people of this
Speaker 1: danger or failing to look into whether there was a danger,
Speaker 1: failing to rectify it in some way. And then finally
Speaker 1: a third question is what is the precise relation between
Speaker 1: this sort of cancer causing agent within the round up
Speaker 1: we'd killer in this case on the one hand, and
Speaker 1: the particular plaintiff before the court on the other hand. Right, So,
Speaker 1: what the court found um uh at the first phase
Speaker 1: of the trial was that there is there does indeed
Speaker 1: appear to be uh this significant cancer risk that comes
Speaker 1: with round up. And what remains then to be decided
Speaker 1: um was well, to what degree is the company culpable
Speaker 1: right for not having um you know, not having done
Speaker 1: more to prevent the danger from occurring, or for not
Speaker 1: having done more to sort of warn the public about it. Now,
Speaker 1: that wouldn't be Buyer itself, of course, that would have
Speaker 1: been Monsanto. But Buyer, as the acquirer of mon Santo
Speaker 1: last June, basically succeeds mon Santo to its own its liabilities.
Speaker 1: Bob Buyer says, This verdict isn't a harbinger of others,
Speaker 1: because each trial has different facts and legal circumstances. But
Speaker 1: both juries found that round up caused cancer, and both
Speaker 1: found punitive damages based on Monsanto's past conduct. So do
Speaker 1: you agree with Buyer? UM? I think it's it's I
Speaker 1: can see why it wants to say what it's saying
Speaker 1: right now in order effectively, I think, to sort of
Speaker 1: calm fears on the part of its investors who might
Speaker 1: be worried that they're more liabilities, had more losses ahead,
Speaker 1: and so it's trying to make a little bit less
Speaker 1: worried I think about future liabilities and losses. UM. That
Speaker 1: being said, UM, I really very much hope that Buyer
Speaker 1: doesn't actually believe entirely what it's been saying, because if
Speaker 1: it does, then that suggests that it's going to adopt
Speaker 1: the strategy that I think is actually quite risky for
Speaker 1: the company. And the reason for that, in turn is that, well,
Speaker 1: you know, there does seem to be a pretty strong
Speaker 1: case to be made or to the effect that UM
Speaker 1: the chemical agent is indeed problematic. There also seems to
Speaker 1: be a pretty strong case to the effect that Monsanto
Speaker 1: tried to hide this fact. And what that means is
Speaker 1: that the only question remaining for buyer is the kind
Speaker 1: of plaintif by plaintiff question as to whether you know
Speaker 1: this plaintiff was affected, or whether there's a causal relation
Speaker 1: between this plaintiff's cancer and that agent, or that plaintiffs
Speaker 1: cancer and the agents and so on, and there you
Speaker 1: have a total crapshoot. It really depends on who the
Speaker 1: plaintiffs are. But most plankets aren't going to bring cases
Speaker 1: like this. It doesn't seem to be unless they can show,
Speaker 1: you know, significant exposure to that chemical agent. And these
Speaker 1: are just the first two cases out of about eleven thousand,
Speaker 1: two hundred. According to Bloomberg Intelligence, the settlement value of
Speaker 1: all round up cases could exceed five billion dollars. When
Speaker 1: does buyer begin to feel real pressure to settle these cases?
Speaker 1: I think I think it really it ought to be
Speaker 1: feeling that pressure now, right. It ought to be reading
Speaker 1: those previous decisions, I think very carefully. The one thing
Speaker 1: that it seems to be hanging its hat on, and
Speaker 1: maybe there are two things that's hanging its hat on.
Speaker 1: So there's another trial coming up up in San Francisco
Speaker 1: and Buyer appears to believe that the judge you will
Speaker 1: be hearing or presiding over that trial is himself a
Speaker 1: bit more skeptical about the claims of causation between the
Speaker 1: chemical agents presence on the one hand and people's developing
Speaker 1: cancer on the other. So Buyer seems to be very
Speaker 1: much betting on a favorable ruling from that judge is
Speaker 1: a little bit more skeptical about the causal link. If
Speaker 1: that judge were not to sort of demonstrate that skepticism,
Speaker 1: and if Buyer were to lose there, I would think
Speaker 1: that would be the finally on the coffin for them,
Speaker 1: and they would probably think, you know, decide that it's
Speaker 1: prudence to go ahead and settle across the board. If
Speaker 1: they win, I think it's probably still a bad idea
Speaker 1: not to settle, but at least they might think of
Speaker 1: themselves as being in the game a bit longer now.
Speaker 1: About this verdict was punitive damages, meaning to punish the
Speaker 1: company for conduct. What message was that jury sending to Buyer?
Speaker 1: It was sort of telling Buyer that, you know, you
Speaker 1: probably you might have done better in June too, have
Speaker 1: paid a little bit more attention to the perspective liability
Speaker 1: of liabilities of Monsanto before you bought it. My understanding
Speaker 1: is that right before the acquisition, most of the attention
Speaker 1: that was paid was paid to the regulatory concerns about
Speaker 1: whether right that the purchase would be permitted, and in consequence,
Speaker 1: I think there might have overlooked or maybe paid insufficient
Speaker 1: attention to the potential liability risk that would be coming
Speaker 1: along with Monsanto, because when you acquire a company like Monsanto,
Speaker 1: you do, of course acquire the bad along with the good,
Speaker 1: and they don't appear to have researched the bad quite
Speaker 1: as thoroughly as they might have done, maybe again, because
Speaker 1: they were preoccupied with whether it would be regulatorily allowed
Speaker 1: for them to purchase it at all. Hardeman's trial was
Speaker 1: split into two parts. It was a format that Buyer
Speaker 1: thought would give it the best chance. This verdict was
Speaker 1: less than the previous verdict, which was two nine million
Speaker 1: dollars and then knocked down by a judge to seventy
Speaker 1: eight point six. Is that random or is that the
Speaker 1: result of the two phase trial? Did it work for buyer?
Speaker 1: I'm inclined to think that it was random because buyer
Speaker 1: was hoping for is they were hoping that if we
Speaker 1: could kind of split up the well back up for
Speaker 1: one second a twilight. This basically implicates all three of
Speaker 1: the questions that I mentioned from the top right. Is
Speaker 1: the agent itself a cancer causing agent? Is there a
Speaker 1: cause of relation between the plaintiff's use of the chemical
Speaker 1: on the one hand and getting the cancer on the other,
Speaker 1: And then again, was there something problematic about the way
Speaker 1: Montanto dealt with the problem? Um? I think generally when
Speaker 1: all three of those things are loved together, the perception
Speaker 1: is that, well, there's a tendency for people to think, well,
Speaker 1: it all looks pretty bad, so let's just go ahead
Speaker 1: and cut some slack to the plaintiff there was hoping.
Speaker 1: I think that by splitting these things up, there might
Speaker 1: be some real question about one of those questions, like,
Speaker 1: for example, the causal relation between the plaintiff's injuries uh
Speaker 1: and the presence of the agent in the In the roundup, Um,
Speaker 1: that didn't work right that particular, that hope was not fulfilled.
Speaker 1: And given that, given that the very reason that they
Speaker 1: had for trying to get the split up turned out
Speaker 1: not to be a very good reason at all, I
Speaker 1: think it would be unwise for buyer to think that, well,
Speaker 1: the fact that the verdict was a little bit lower
Speaker 1: this time is itself the product of the you know,
Speaker 1: sort of uh divvying up of the of the case
Speaker 1: into distinct cases or distinct trials. So buyer is going
Speaker 1: to appeal this verdict and appeal the verdict in August,
Speaker 1: what are its chances on appeal besides getting the verdict
Speaker 1: knocked down a little bit? I am myself skeptical that
Speaker 1: there's much chance of getting those verdicts overturned or getting
Speaker 1: those those things changed. And again, I think it's because
Speaker 1: of the nature of the particular questions that were before
Speaker 1: the court and the nature of the findings with respect
Speaker 1: to those questions. There was nothing especially controversial or sort
Speaker 1: of you know, out of the ordinary or you know,
Speaker 1: outlier ish about those specific decisions, and it seems to
Speaker 1: me that Buyer then ought to read those decisions as
Speaker 1: indicating that it's really got an uphill climb if it's
Speaker 1: going to try to decouple in people's minds the relation
Speaker 1: between you know, the president of the alleged carcinogen and
Speaker 1: roundup on the one hand, and people's actually acquiring cancer
Speaker 1: or contracting cancer. On the other hand, all right, thanks Bob.
Speaker 1: Maybe they want Buyer wants to consider Elizabeth Warren's proposal
Speaker 1: to break up the Fireman Santo might be all right,
Speaker 1: thanks so much. That's reliability. Okay, thank you. That's Robert Hoggett,
Speaker 1: music professor at Cornell Law School. Thanks for listening to
Speaker 1: the Bloomberg Law Podcast. You can subscribe and listen to
Speaker 1: the show on Apple podcast, SoundCloud, and on Bloomberg dot
Speaker 1: com slash podcast. I'm June Brosso. This is Bloomberg