Saddled with more than 18,400 lawsuits alleging its weed killer Roundup causes cancer, and having lost all three of the cases that have gone to trial thus far, Bayer is in the midst of mediation to potentially offer a settlement. But reaching a viable agreement is particularly tricky, legal experts say.

Bayer acquired Roundup maker Monsanto more than a year ago, and shortly thereafter ended up in the courtroom for the first trial alleging exposure to the active ingredient in Roundup – glyphosate – caused a school groundskeeper to develop non-Hodgkin’s lymphoma. Both Bayer and Monsanto have maintained that glyphosate is safe, and the U.S. Environmental Protection Agency (EPA) has refused to label it as dangerous.

However, in 2015, the World Health Organization’s International Agency for Research on Cancer  (IARC) classified glyphosate as a probable carcinogen, and pointed to studies that linked farmers with non-Hodgkin’s lymphoma to their heavy use of glyphosate.

Mediation to settle the lawsuits is still in its early stages, and the obstacles are just beginning to pop up. For starters, settlements involving medical drugs or devices, or even consumer products, often require the company to place a warning label on the product, issue a recall, or pull the product from the market – measures Bayer doesn’t want to take. What the company has done is announce it would pony up $5.6 billion to invest in research to find suitable alternatives to glyphosate.

One challenge to that is that Roundup is widely used worldwide. And many farmers use it in combination with the company’s seeds, which have been genetically modified to withstand the effects of glyphosate.

Another challenge is that non-Hodgkin’s lymphoma takes, on average, about a decade to develop. Which means that claims may continue to pour in for years after the litigation settles. The fund will have to have an end date years in advance that a court would find reasonable to approve. As long as Roundup is sold without a warning label, plaintiffs may continue to sue the company.

Parties would also need to set criteria for receiving compensation from the fund, which could include factors such as frequency of Roundup use and severity of their disease. But defining those groups could get muddled since the cause of non-Hodgkin’s lymphoma isn’t limited to glyphosate exposure. (For example, mesothelioma is a disease that has been definitively linked to asbestos exposure.)

We are investigating cases involving non-Hodgkin lymphoma related to the commercial application of Roundup/glyphosate. For more information or to discuss a possible claim, contact John Tomlinson or Rhon Jones.

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