Mining out Monsanto and Bayer for Roundup cancer

“Monsanto Has to Pay $289 Million in Damages in First Roundup Cancer Trial” (Fortune) sounds like mostly a bad day for Bayer AG shareholders (the German company acquired Monsanto just a couple of months ago and now they have their first gift from the U.S. legal system!).

But, assuming that Roundup does cause cancer, maybe this is actually a bad day for people with cancer?

Bayer is worth only about $86 billion. At $289 million per cancer-stricken person, fewer than 300 people can be compensated before all of the value in Bayer is consumed. But Roundup is one of the most widely used products in the world. So if it does cause cancer then tens or hundreds of thousands of people should be affected (anyone who hates poison ivy, for example!).

Readers: Why are folks on Facebook celebrating this? Don’t they see that at $289 million per victim the funds run out pretty quickly? The same folks are concerned about inequality and yet they don’t seemed tuned into a situation where the later litigants are on track to get nothing. If someone who has cancer today gets $289 million and someone who is not diagnosed with cancer until 2020 gets $0, how is that fair?

Related:

  • “The Cost of a Human Life, Statistically Speaking” (Globalist), which notes that “As of 2011, the Environmental Protection Agency set the value of a human life at $9.1 million. Meanwhile, the Food and Drug Administration put it at $7.9 million — and the Department of Transportation figure was around $6 million.”

17 Comments

  1. Viking

    August 13, 2018 @ 1:49 pm

    1

    This also adds to inequality in happiness, Nasim Taleb gets way happier than me from this:

    https://twitter.com/search?q=nntaleb%20monsanto&src=typd

  2. Jackie

    August 13, 2018 @ 2:26 pm

    2

    It’s no problem. Once shareholder value has been driven to zero by the lawsuits, then Bayer will declare bankruptcy and what remains will be equitably divided between the remaining victims and their lawyers. Yes, the first few plaintiffs come out ahead for their pioneering work but once it becomes clear that the lawsuits will never end the carcass gets split up fairly.

  3. paddy

    August 13, 2018 @ 2:32 pm

    3

    There are 2 issues:

    1) Monsanto being forced to acknowledge the danger to Roundup

    2) Monsanto losing in court.

    People know that the award amount will be greatly reduced, but that 1) will remain.

  4. Jernej

    August 13, 2018 @ 2:40 pm

    4

    Except there’s apparently no evidence it does any real harm to humans. Since you like Facebook, try this for voices from the other side of the argument:
    https://www.facebook.com/892778157420170/posts/1964738910224084/

  5. philg

    August 13, 2018 @ 4:10 pm

    5

    Paddy: “People know that the award amount will be greatly reduced”.

    The $39 million in actual losses that this groundskeeper suffered should not be subject to reduction unless the entire outcome is reversed. It is only the $250 million in punitive damages that can be touched by an appeals court as potentially excessive. So even if no plaintiff gets even $1 of punitive damages, at $39 million per plaintiff it won’t be long before Bayer/Monsanto is wiped out and nothing remains for future plaintiffs.

    Jackie: I don’t see how it will be possible to split up the carcass fairly. There is a huge amount of Roundup in the environment after 40 years of application (during which time human lifespan kept getting extended to the point that all of our pension funds are insolvent!). So if Roundup does cause cancer there will be people getting Roundup-related cancers decades from now. If the carcass is consumed by current plaintiffs then necessarily there isn’t anything left for future plaintiffs.

    Viking: Thanks for that link. I like this one: “Bayer CEO: Monsanto deal will create $1.2 billion in synergies” looks like he forgot the minus sign ?

    Another good tweet: Now that #Monsanto is owned by #Bayer a German company, it is not surprising [that] US justice finally starts condemning Monsanto

    Jernej: That’s the miracle of the U.S. judicial system. The hardest scientific questions are put to a jury of people with no training or experience in science! The litigators that I’ve worked with say that juries are better than judges at figuring out which witnesses are telling the truth, but when the available science doesn’t support a “truth” the jury system kind of falls apart.

  6. Alex

    August 13, 2018 @ 4:16 pm

    6

    As I suspect you know, most people aren’t able to think about issues beyond the first pattern-match to one of their core positions. In this case, the woke are immediately pattern-matching to “corporations bad, people good, therefore this is good because it harms a corporation and benefits a person”. Especially since it’s a corporation that has frequently been a target of the daily two minute hate.

    You are right that the woke seem to have…interesting, shall we say…thought processes around acceptable vs. unacceptable ways to get rich. Getting rich by inventing or developing products, starting businesses that employ people and provide useful goods and services, are generally not seen as valid reasons to have vastly more wealth than the average people. Winning a large lawsuit against an evil corporation is okay.

    $250M of that $289M was punitive damages, so the justice system apparently thinks that $39M was enough to compensate the plaintiff for the damages in question, but the way it works, the plaintiff will also get the $250 in purely punitive damages, after the lawyers and the IRS take their cut, of course. One has to wonder why punitive damages don’t just go into the government’s coffers since they’re not about compensating the plaintiff, but rather about punishing the evildoer. Or, perhaps, punitive damages from an individual lawsuit should go into a trust fund held in the expectation of the (perhaps) inevitable class-action lawsuit to follow.

  7. Darren

    August 13, 2018 @ 6:35 pm

    7

    Honestly, at least in my circle of friends, I think people are just happy that this may spell the end of a product (Roundup/glypohosate) they’ve long had concerns about. While they’re sympathetic to the victims, it’s more about punishing a company they believe has been falsifying studies and knowingly pushing a dangerous product onto farmers and the public just to make money.

  8. philg

    August 13, 2018 @ 6:48 pm

    8

    Darren: How is it the end of this product? https://en.wikipedia.org/wiki/Glyphosate says that “Monsanto’s last commercially relevant United States patent expired in 2000”. If Americans manage to sue Monsanto/Bayer into insolvency, won’t the chemical still be available from other companies? What’s Monsanto’s market share for glyphosate currently?

    Example generic: https://amzn.to/2P64Ryw

  9. SuperMike

    August 13, 2018 @ 9:16 pm

    9

    Either the good folks at Monsanto have been making a concerted, successful effort to sanitize the wikipedia page, or there’s scant scientific evidence that roundup is harmful. Did this jury get the crazies?

  10. Fazal Majid

    August 13, 2018 @ 9:20 pm

    10

    Monsanto actually makes money from selling “Roundup-ready” (i.e. glyphosate-resistant) seeds, more than the Roundup itself, so farmers plant those seeds and spray with Roundup for a 2-for-1. The Roundup-ready seeds are sterile and do not produce seeds themselves, which means farmers who buy into Monsanto are basically locked in and need to keep buying the seeds forever, thus profitable recurring revenues for Monsanto.

    One can’t help but wonder if the flood of lawsuits have only been allowed to proceed now that Bayer was suckered into buying Monsanto and it’s no longer a US company. Certainly, it’s a very influential company, e.g. Justice Clarence Thomas was a lawyer for them, and chose not to recuse himself in decisions that concerned them.

  11. Trust Fund Boi

    August 13, 2018 @ 9:28 pm

    11

    Guess we will have to set up a Glyphosate Trust fund and a Talcum Powder Trust Fund just like the Asbestos Trust Fund.

  12. Jack

    August 13, 2018 @ 11:04 pm

    12

    I am not an expert on civil procedure law in California, as Phil apparently is, which governs the power of the trial judge or an appellate court to review a jury’s calculation of “actual damages” even if the “actual damages” are (hypothetically) not supported by the evidence but it seems dubious that neither the trial court nor an appellate court cannot review the calculation of damages separate from its review of e.g. whether roundup caused the plaintiff’s cancer — that does not strike me as a sensible way to organize a legal system. Since according to news reports the market has marked down the value of Bayer by 10% today it seems that the market does not buy Phil’s analysis and and some of those buyers and sellers today probably consulted California lawyers who know the answer to the question about the power of the trial or the appellate court to review the jury’s verdict.

  13. philg

    August 14, 2018 @ 12:40 am

    13

    Jack: I did not mean to imply that I am an expert on California law (though I did contribute to http://www.realworlddivorce.com/California , which shows that there are plenty of ways to collect $289 million in California without suffering from cancer… (e.g., Ellen Pao could have gotten $238 million))

    But just as a general rule appeals courts are supposed to look for errors in law, not in findings of fact. So if the jury finds that someone has suffered $X in economic or pain and suffering damages that is a “fact”. Appeals courts have cut back punitive damages as “excessive as a matter of law.” I think appeals courts have also recalculated damages sometimes if there was an arithmetic error made or if something that was supposed to be subtracted as a matter of law wasn’t subtracted (and there were findings of fact as to the amounts available to the appeals court).

    An appeals court could say “As a matter of law, the trial court improperly excluded Witness X who might have persuaded the jury that the damages should be a different number and therefore we order a new trial.” But it is tough for the appeals court to generate its own fact findings, e.g., damages should be $Y instead of $X.

    Bayer is down $8 billion and you think that is a sign the markets are optimistic about Bayer’s chances of winning an appeal of this $289 million judgment? What would pessimism look like?

  14. George A.

    August 14, 2018 @ 8:55 am

    14

    Any product has some sort of side effect, some more than other, and some will take years and decades if not more to know the full impact. Furthermore, it’s not just the product, it is how the product is used and many variables around the product; i.e.: some of us are sensitive to the sun, others are not, some of us have allergies to food / medicine, others don’t.

    It is a fair game to punish a company when it intentionally breaks misleads [1], or keeps selling a product that it knows is harmful [2]. But punishing a company like Roundup just opens the doors to do the same for many other products. Heck, for all I know, one can come up with a study that sitting for long hours can cause colon cancer so why not sue all chair makers? And what do you know, there is such a study [3] so where is the lawsuit against those nasty companies that make sofas, chairs, et. al.? Right, as society, we lost our common sense.

    [1] https://en.wikipedia.org/wiki/Volkswagen_emissions_scandal
    [2] https://en.wikipedia.org/wiki/Health_effects_of_tobacco
    [3] https://www.webmd.com/cancer/news/20140616/study-ties-too-much-sitting-to-risks-for-certain-cancers#1

  15. Jack D

    August 14, 2018 @ 10:09 am

    15

    “The Roundup-ready seeds are sterile and do not produce seeds themselves, which means farmers who buy into Monsanto are basically locked in and need to keep buying the seeds forever, thus profitable recurring revenues for Monsanto.”

    This is false. The soybeans with the Roundup Ready genes in them are fully capable of reproduction. But because they are patented, if you plant them without paying the royalties to Monsanto, they will sue you and win if they find out.

    https://en.wikipedia.org/wiki/Bowman_v._Monsanto_Co.

  16. philg

    August 14, 2018 @ 10:58 am

    16

    Jack: https://www.technologyreview.com/s/539746/as-patents-expire-farmers-plant-generic-gmos/ is from 2015 and says “Monsanto no longer controls one of the biggest innovations in the history of agriculture.” (subhead should actually be “one of the biggest innovations in the history of litigation”?)

    So that gets back to my response above… even if all $86 billion (now $78 billion?) of value in Bayer is delivered to the first few hundred cancer plaintiffs, how does that stop the use of glypohosate and glypohosate-resistant crops?

  17. superMike

    August 16, 2018 @ 2:26 pm

    17

    Re: my earlier comment. This seems to be a case of tort law gone wild. https://reason.com/blog/2018/08/14/289-million-dollar-verdict-against-monsa

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