The California federal judge overseeing the $2 billion settlement for future claims that Monsanto’s weedkiller Roundup causes cancer said that  he had serious concerns for consumers who have been exposed to the weedkiller but have not yet been found to have cancer, especially the potential for the U.S. Supreme Court to wipe out their claims.

While U.S. District Judge Vince Chhabria said he was coming around to the idea that the deal could be reasonable for one group of potential plaintiffs who have developed non-Hodgkin’s lymphoma but have not filed suit, he was much more concerned about those Roundup users, referred to as class two during the livestreamed hearing, who have been exposed to the alleged carcinogen in Roundup but not diagnosed with cancer.

The judge spent the morning and part of the afternoon addressing his concerns about what the $2 billion deal offers those users. Under the terms of the deal — which was reworked after Judge Chhabria was skeptical of a previous version’s fairness — there is a four-year compensation program that a Roundup user could opt out of and instead choose to sue Bayer AG’s subsidiary.

The most important thing to discuss in the hearing is the plaintiffs’ litigation risk, the judge said.

“It seems to me for the people not yet diagnosed with non-Hodgkin’s lymphoma, the biggest litigation risk is that the Supreme Court would rule at some point that these state law claims are preempted,” Judge Chhabria said.

In that event, they would have no way to recoup damages against Monsanto if they had opted out of the compensation program.

While the issue is not currently before the Supreme Court, the Ninth Circuit recently upheld a $25 million verdict in the only federal trial in the multidistrict litigation, finding that Edwin Hardeman’s California state failure-to-warn claims were not preempted by the Federal Insecticide, Fungicide and Rodenticide Act.

Bayer said the company was exploring its legal options, including petitioning the high court to review the decision.

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