Bayer Rips ‘Pay To Appeal’ Charge In 11th Circ. Roundup Case

Monsanto on Wednesday asked the Eleventh Circuit to disregard a letter sent by three third-party attorneys aiming to stop an appeal in one of the suits alleging its Roundup weedkiller caused cancer, saying they have no grounds to torpedo a settlement that led to the appeal.

In the response brief, Monsanto Co., a subsidiary of Bayer AG, defended its settlement deal with John Carson, saying the “high-low” settlement, in which Carson receives $100,000 at minimum, with a substantial increase should his appeal prevail, is a normal and accepted practice, not a clandestine bid to manipulate the legal system as the third-party attorneys alleged.

Under the deal, Carson agreed to appeal the dismissal of his failure to warn claims on federal preemption grounds, according to court documents, a question that is at issue in numerous cases against Monsanto over the weedkiller.

The attorneys, who represent Roundup plaintiffs in other cases, say their clients’ cases, and numerous others across the country, hinge on this issue of failure to warn. Carson’s case is the first time that Bayer has won on these grounds, the attorneys claim, and a favorable decision at the Eleventh Circuit would give Monsanto an advantage in those other cases.

The company further argued that it is not dictating Carson’s litigation strategy, as Carson was free to reject the settlement offer and continue to pursue his claims in court, but chose to take the deal after consideration with his own attorney. Carson appealed with his own financial interests in mind, rather than being manipulated by Monsanto for the company’s benefit, Monsanto claims.

David J. Wool of Andrus Wagstaff PC, who represents another plaintiff and signed the letter, said that Monsanto openly admitted that it paid Carson to appeal the ruling that it won at trial court.

“Monsanto’s response proves what we wrote in our letter: that the plaintiff wasn’t paid a penny for anything other than to bring an appeal against Monsanto,” he said. “Pay-to-appeal schemes like this one have no place in our justice system.”

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