Case 3:16-md-02741-VC Document 13115 Filed 05/26/21 Page 1 of 6
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`IN RE: ROUNDUP PRODUCTS
`LIABILITY LITIGATION
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`This document relates to:
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`Ramirez, et al. v. Monsanto Co.
`Case No. 3:19-cv-02224
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`MDL No. 2741
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`Case No. 16-md-02741-VC
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`PRETRIAL ORDER NO. 235:
`DENYING THE MOTION FOR
`PRELIMINARY APPROVAL
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`Re: Dkt. No. 12531
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`Attorneys for certain individual plaintiffs in the MDL have negotiated a class action
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`settlement with Monsanto that would cover potential future lawsuits. Those attorneys now seek
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`preliminary approval of the proposed settlement. This ruling assumes that the reader has
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`reviewed a transcript of the hearing on the motion for preliminary approval and is familiar with
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`the briefs and the legal standard for preliminary approval of class action settlements.
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`The people covered by the agreement are divided into two groups. The first group
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`consists of Roundup users who have been diagnosed with NHL but who have not yet sued and
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`have not yet hired a lawyer to sue. The second group consists of people who used Roundup
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`before February 2021 but who have not been diagnosed with NHL. The settlement is a package
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`deal; the Court has not been asked to approve the deal for one group if the deal is deemed
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`unreasonable for the other.
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`It is unnecessary to evaluate whether the settlement is reasonable for the first group
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`because it is clearly unreasonable for the second group—the Roundup users who have not been
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`diagnosed with NHL. This ruling merely discusses some of the most glaring flaws with the
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`proposed settlement and the plaintiffs’ presentation in support of it.
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`Case 3:16-md-02741-VC Document 13115 Filed 05/26/21 Page 2 of 6
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`If Roundup users who have not been diagnosed with NHL do not opt out of the class after
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`notice is disseminated, the settlement purports to offer them two primary benefits. First, a
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`medical monitoring program would be available for roughly four years. The program is
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`ostensibly designed to increase the chances that class members’ NHL (if they get it at all) will be
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`diagnosed early. Second, the settlement provides for a compensation fund, which is designed to
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`last roughly four years. If a class member is diagnosed with NHL during that four-year period,
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`they can make a claim to the fund, with a likelihood of receiving somewhere between $10,000
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`and $60,000 (and in rare cases, up to $200,000).
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`The benefits of the medical monitoring program are far less meaningful than the
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`attorneys suggest. In this MDL, both sides’ experts have testified that NHL has a long latency
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`period, particularly when caused by something like an herbicide (as opposed to a more jarring
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`intrusion on the body, such as chemotherapy). According to this testimony, people can
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`reasonably expect to wait 10 or 15 years after exposure before developing the disease. Moreover,
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`the Court’s understanding is that NHL is primarily contracted by older people—more than half
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`the people with the disease are diagnosed after age 65. Finally, the Court’s understanding from
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`the litigation is that doctors generally cannot perform tests on patients to detect NHL before
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`patients start experiencing symptoms. This is in contrast, for example, to the Diet Drugs case,
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`where medical monitoring involved an echocardiogram that would immediately detect a heart
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`disease that typically has no latency period. In re Diet Drugs, 2000 WL 1222042, at *46-47, *57
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`(E.D. Pa. Aug. 28, 2000). The attorneys filing this motion have provided no information that
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`contradicts the Court’s understanding on these points. The motion thus appears to greatly
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`exaggerate the potential benefits of four front-end years’ worth of vaguely described medical
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`monitoring for those without NHL.1
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`The benefits of the compensation fund are also vastly overstated for the second group.
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`1 This is not to say that the proposed medical monitoring program is worthless. As the motion
`notes, the program would serve the benefit of educating people about how to recognize
`symptoms of NHL early, thereby increasing their chances of catching the disease before it
`progresses.
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`2
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`Case 3:16-md-02741-VC Document 13115 Filed 05/26/21 Page 3 of 6
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`The fund is designed to last only four years. It may even be exhausted earlier by claims from
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`people already diagnosed with NHL. Since many people in the second group will likely receive
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`their diagnosis more than four years down the line (with or without medical monitoring), they
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`will not be able to request compensation from the fund. Monsanto has the option to add to the
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`fund and extend its duration with the approval of class counsel and the Court, but there is no
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`requirement to do so, and Monsanto would merely incur a relatively minor “exit fee” if it
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`decided to end the program. Accordingly, the Court cannot assume (and a class member certainly
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`could not assume) that money will be available for longer than four years.
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`In exchange for these tenuous benefits, the proposed agreement calls upon class members
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`to make two major sacrifices. First, although class members retain the ability to sue Monsanto
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`upon diagnosis if they choose to forego compensation from the fund or if the fund has expired,
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`they lose the right to seek punitive damages. Second, in any trial where class members seek
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`compensatory damages, they must stipulate to the admission of the opinion of a seven-member
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`science panel about whether Roundup can cause NHL.
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`It may well be true, as the attorneys pushing this deal asserted at the hearing, that a
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`punitive damages award for a Roundup plaintiff who sues Monsanto 15 years from now is not
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`likely to exceed a 1:1 ratio compared to compensatory damages. But punitive damages would
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`presumably still be available because Monsanto continues to sell Roundup, and it insists on
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`doing so without any real warning label.2 Moreover, compensatory damage awards in these trials
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`2 Rather than working proactively to craft a warning label that the EPA would likely approve,
`Monsanto repeatedly points to the fact that the “Proposition 65” warning label California
`attempted to require for Roundup has been enjoined by a federal court and criticized by the EPA.
`As discussed more fully at the hearing, it’s true that the Proposition 65 warning label is
`misleading, and it’s clear that the EPA would not currently approve such a label. But it is equally
`misleading for Monsanto to invoke Proposition 65 to assert that Monsanto could never get a
`meaningful label approved by the EPA. A label that alerts users to the contrasting positions taken
`by the EPA and IARC on the safety of glyphosate, points users to the literature produced by
`these two agencies, and reminds users to employ protective gear and take other appropriate
`precautions when spraying Roundup, would be a meaningful one—and one that is not misleading
`like the Proposition 65 warning. There’s no apparent reason for the EPA to reject a label like
`that, and it’s hard to imagine why a federal agency that believes a product is not dangerous
`would be unwilling to allow the producer of the product to include a purely factual label that
`might help limit liability in the future.
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`3
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`have been quite high. For example, Hardeman’s was roughly $5 million, even though he had
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`made a full recovery from NHL by the time of trial. Thus, even if punitive damages awards
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`consistently fall to levels below compensatory damages in future lawsuits, that’s still a lot of
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`money to be giving up.3
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`The attorneys pushing this deal repeatedly intone that it will be difficult for Roundup
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`users who are diagnosed with NHL in the future to get a trial, given the limited capacity of courts
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`and given that many plaintiffs will be “in line” ahead of them. This means, the attorneys imply,
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`that relinquishing the ability to seek punitive damages at trial is no big deal. Surely counsel must
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`know that this misses the most important issue, which is that class members, by waiving punitive
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`damages, would be greatly diminishing the future settlement value of their claims. This is not a
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`situation where the defendant is at risk of going bankrupt, such that only the first set of plaintiffs
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`will be able to recover. Bayer (which recently acquired Monsanto) is a massive, wealthy
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`company, and it continues to make money specifically from Roundup sales. Nor is there any
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`indication that the company will cease its efforts to settle cases. As recently as last week, Bayer
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`stated publicly that it remains committed to settling Monsanto’s Roundup litigation. This is not
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`surprising because the alternative to settling—continuing to lose trials left and right—is not
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`attractive.4
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`As for the science panel, on the surface this concession does not seem so great, at least so
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`long as the Court can ensure that the panel’s inquiry is fair and unbiased. But the reason
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`Monsanto wants a science panel so badly is that the company has lost the “battle of the experts”
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`in three trials. At present, the playing field on the issue of expert testimony related to causation is
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`3It’s worth noting that class members—who may continue to be exposed to Roundup—would be
`relinquishing their punitive damages claims without knowing how egregious Monsanto’s
`conduct will be with respect to Roundup in the future.
`4 More generally, absent from the voluminous presentation in support of this motion for
`preliminary approval is any meaningful analysis of the various litigation risks that class members
`would face absent a settlement. The motion could have been denied on this basis alone. See, e.g.,
`Hunt v. VEP Healthcare, Inc., 2017 WL 3608297, at *1 (N.D. Cal. Aug. 22, 2017); Eddings v.
`DS Services of America, Inc., 2016 WL 3390477, at *1 (N.D. Cal. May 20, 2016); see also
`Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998).
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`4
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`slanted heavily in favor of plaintiffs. Thus, agreeing in advance to admit the opinion of a court-
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`blessed panel that might undercut the opinions of the plaintiffs’ experts is a significant
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`concession for the class members—one that could greatly reduce their chances of winning. And
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`again, it would reduce settlement value.
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`In sum, the settlement proposed by these attorneys would accomplish a lot for Monsanto.
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`It would substantially diminish the company’s settlement exposure and litigation exposure at the
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`back end, eliminating punitive damages and potentially increasing its chances of winning trials
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`on compensatory damages. It would accomplish far less for the Roundup users who have not
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`been diagnosed with NHL—and not nearly as much as the attorneys pushing this deal contend.
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`These deficiencies are bad enough on their own. But they are exacerbated by the
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`difficulties with effectively notifying people of the right to opt out of the class at the front end.
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`Let’s assume, for argument’s sake, that an opt-out class notice could ever be adequate in a
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`situation like this—that is, class notice that is mostly by advertisement for a massive, diffuse, and
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`largely transient population of people who have not gotten sick and may not even know of their
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`exposure, and therefore have no immediate interest in putting considerable effort into educating
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`themselves on an exceedingly complex settlement agreement. If notice in this situation could
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`ever be adequate, it would need to communicate the settlement’s message very clearly and offer
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`something sufficiently valuable and tangible to make it worth the potential class members’
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`attention.
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`This settlement, and the proposed program for publicizing it, do not come close to
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`accomplishing that. Indeed, for people who have not been diagnosed with NHL, the notice’s
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`message is so garbled that they are likely to ignore it. Consider the first three sentences of the
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`proposed “short form” publication notice: “Exposed to weed killers? You could benefit from a
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`$2 billion settlement. People diagnosed with Non-Hodgkin’s Lymphoma could receive up to
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`$200,000.” This might catch the eye of the people in the first group—those who have already
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`been diagnosed. But if you’re trying to grab the attention of someone who has not been
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`diagnosed with NHL, this is not the way to do it.
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`5
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`Counsel’s response at the hearing was simply that they hired experts and trusted them to
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`craft an appropriate notice. That is not an adequate response. It should be obvious to any expert
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`or layperson that the proposed notice does a disservice to the group that has not been diagnosed
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`with NHL, potentially misleading them into disregarding a message about a settlement that could
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`substantially diminish their rights if they eventually get sick.
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`One final note. At the hearing, the Court signaled that a fair amount of time might pass
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`before it issued a ruling on this motion. This was based partly on the assumption that the parties
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`might decide to submit revisions to the agreement in light of the discussion that took place. On
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`reflection, from the standpoint of transparency and procedural fairness, this would not be a good
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`approach. The parties already made significant changes to the agreement between the time when
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`the motion for preliminary approval was filed in February 2021 and the time when the reply was
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`filed in April 2021.5 It was difficult enough to wade through the briefs and determine which
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`arguments still applied to the revised agreement. To entertain further revisions in the context of
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`this motion would be unfair to objectors and interested members of the public who are
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`attempting to follow developments and potentially weigh in on this consequential matter.
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`Especially since mere tweaks cannot salvage the agreement. If a settlement that reasonably
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`protects the interests of Roundup users who have not been diagnosed with NHL can be reached,
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`that agreement must be presented on a new motion for preliminary approval. This motion,
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`however, is denied.
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`IT IS SO ORDERED.
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`Dated: May 26, 2021
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`______________________________________
`VINCE CHHABRIA
`United States District Judge
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`5 As bad as the current version of the agreement is from the class members’ standpoint, the
`version submitted with the original motion in February 2021 was quite a bit worse. For example,
`in their original motion, the attorneys proposed to force class members to relinquish a potentially
`large percentage of compensatory damages as well. See Opposition Brief for the National Black
`Farmers Association at 28-29, In re Roundup Products Liability Litigation, No. 16-md-2741
`(N.D. Cal. Mar. 4, 2021), ECF No. 12678.
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`6
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