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Bayer bets on defense in roundup suits, experts see hurdles



(Reuters) – Bayer AG plans to argue that a $ 2 billion jury award and thousands of US lawsuits claiming its glyphosate-based weed killer roundup causes cancer The Herbicide is not a public health risk. Bayer has a better shot in business-friendly U.S. Supreme Court takes up the case, experts said, Bayer has come under intensifying pressure after a third consecutive U.S. jury on Monday found Roundup to be carcinogenic, awarding more than $ 2 billion to a couple who used the chemical on their property – the largest verdict in the glyphosate litigation to date. [BayerwhichinheritedtheRounduplitigationwithits$63billionacquisitionofMonsantolastyearfaceslawsuitsbymorethan13400plaintiffsnationwideallegedlytheproductcausescancer

The Germany-based company's shares have been hammered since the first Roundup cancer verdict against the last August, wiping out some 40 billion euros ( $ 44.76 billion in Bayer worth less than the price it paid for Monsanto.

Bayer denies that Roundup causes cancer, saying decades of studies have shown glyphosate and the weed killer to be safe. the company said it will argue that the lawsuits, which are brought under state law, conflict with guidance from a federal agency, the US Environmental Protection Agency

On April 30, the EPA reaffirmed prior guidance saying that glyphosate is not a carcinogen and not a risk to public health when used in accordance with its current label

Citing the EPA decision, Bayer has repeatedly rebuked plaintiffs' calls to add to cancer warning to roundup, saying the agency would reject that change.

Under the legal doctrine of preemption, state law claims are violated if they conflict with federal law.

"We have very strong arguments that the claims are preempted … and the recent EPA registration decision is an important aspect of that defense, "William Hoffman, one of Bayer's lawyers, said during a call with reporters on Wednesday. Mr. Hoffman said the argument applied to all U.S. Roundup lawsuits

Prevention is generally regarded as a "silver bullet defense" because it stops claims across the board, said Adam Zimmerman, a law professor at Loyola Law School in Los Angeles.

But Mr. Zimmerman and three other legal experts agreed that Bayer faces a big hurdle convincing appeals that the EPA on glyphosate shields it from state law claims. [C] Supreme Court ruling that the EPA's approval of a product does not necessarily imply state law claims. The ruling, Bates v. Dow Agrosciences gives broad leeway to juries to decide on such claims, they said.

Judges in the three roundup cases that have gone to trial against Monsanto all rejected the 's preemption argument, citing this ruling.

Zimmerman said.

Bayer also said it would argue on appeal that trial courts improperly admitted evidence that was not backed up by science.

'Sore thumb' Lars Noah, a law professor at the University of Florida, said Bayer's chances of success would increase significantly if the Supreme Court takes up the roundup appeals

The high court only accepts around 70 cases each year, but a business-friendly majority on the court could be inclined to hear the dispute, said Alexandra Lahav, a law professor at the University of Connecticut

Since 2005, the high court has decided at least three preemption cases in favor of companies, none of which involved the EPA.

The Supreme Court will soon rule in another case that rests on whether a US Food and Drug Administration approval of claims.

In that case, plaintiffs sued Merck & Co. about the company's alleged failure of the risk of serious bone fractures associated with its osteoporosis drug Fosamax.

Merck, which denies the allegations, argued the lawsuits should be preempted because the FDA did not require an additional fracture warning in the drug's prescribing information.

Bayer in a statement on Thursday said it does not believe the 2005 Bates ruling a barrier for the appellate courts due to other Supreme Court rulings since then.

] Mr. Noah agreed that the court has more recently signaled its appetite for limit lawsuits that contradict opinions by experts at regulatory agencies. "" The Bates decision by now sticks out like a thumb, " Noah said. "Bayer has more than enough ammunition in recent Supreme Court cases to show the trial court judges got it wrong."


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