Kenneth Feinberg Tapped for Monsanto Roundup Mediation

Published on May 23, 2019 by Sandy Liebhard

A federal judge has asked attorney Kenneth Feinberg to mediate talks aimed at settling thousands of Monsanto Roundup lawsuits that blame glyphosate for cancer.

U.S. District Judge Vince Chhabria of the Northern District of California appointed Feinberg after the parties’ counsel were unable to agree on a mediator. The prominent attorney will confer with both sides over the next two weeks before deciding whether to take on the Monsanto Roundup mediation.  (In re: Roundup Products Liability Litigation, MDL 2741, U.S. District Court, Northern District of California)

If Feinberg does accept the challenge, it won’t be the first time he’s agreed to referee a difficult negotiation. In fact, he previously led successful talks involving the September 11th Victim Compensation Fund, the BP Deepwater Horizon disaster, Volkswagen’s diesel emissions scandal, and the General Motors ignition switch litigation.

Monsanto Roundup and Cancer

Glyphosate, the active ingredient in Monsanto Roundup, is the most popular weed killer in the world.

Roundup cancer lawsuits began to mount in courts throughout the United States shortly after the World Health Organization’s International Agency for Research on Cancer (IARC) declared glyphosate a probable human carcinogen in March 2018. The group acted after its independent review linked occupational exposure to an increased risk of cancer, especially non-Hodgkin’s lymphoma or its various subtypes.

Bayer, which acquired Monsanto last year, denies any cancer link.

The U.S. Environmental Protection Agency (EPA) concluded glyphosate was safe for human use just last month. But weeks earlier, the U.S. Centers for Disease Control’s Agency for Toxic Substances and Disease Registry said it couldn’t rule out a cancer link and called for more research.

Bayer 0-for-3 in Monsanto Roundup Trials

Only three Monsanto Roundup lawsuits have gone to trial so far, and Bayer has yet to win a single case.

Earlier this month, a jury in California’s Alameda County Superior Court awarded more than $2 billion in compensatory and punitive damages to an elderly couple, both of whom were diagnosed with non-Hodgkin’s lymphoma just years apart. They had used Roundup for home gardening since the 1970s.

In March, Judge Chhabria presided over a Roundup cancer trial that resulted in an $80 million award for another home gardener suffering from non-Hodgkin’s lymphoma.

The litigation’s first trial concluded last August in San Francisco Superior Court, with a unanimous jury awarding $289 million in compensatory and punitive damages to a former groundskeeper with terminal non-Hodgkin’s lymphoma. However, the trial judge later reduced the punitive award, bringing the total judgment to $78 million.

Bayer is appealing all three verdicts and insists it remains focused on defending the costly litigation.

Monsanto Roundup Mediation Doesn’t Guarantee Settlement

Although the German conglomerate agreed to comply with the court-ordered settlement talks, there’s no guarantee the Monsanto Roundup mediation will result in an agreement – even with Feinberg leading the way.

According to Bloomberg News, Carl Tobias, a University of Richmond professor and product liability law expert, suggested Judge Chhabria might see Feinberg as a “powerful lever” that could nudge a less-than-enthusiastic Bayer towards settlement.

“In my experience, sometimes companies from outside the U.S. need to get hit in the head with a 2X4 so they’ll wake up and decide it’s time to settle,” he said. “Ken Feinberg might well be that 2X4.”

Tony Sebok, a law professor at Benjamin Cardozo School of Law in New York, noted Feinberg’s reputation for coming up with “creative and clever” solutions to resolve complex legal matters, as well a proven ability to convince even the most stubborn defendants to compromise.

“He’s known as a careful and thoughtful mediator who can bring people together,” he said.