Bayer put out a product some years ago named “Roundup®.” It was a weed-killer. Allegedly it causes cancer in some, and Bayer allegedly failed to warn purchasers about this danger. There have been many, many lawsuits and more are on the way.  Bayer has agreed to pay as much as $11.6 billion to settle existing cases from about 125,000 customers.

“Enough is enough” Bayer has “whispered.” Thus it wants a High Court ruling on a key aspect of the pattern cases.  To do this, Bayer is financing an appeal against itself. One John Carson, M.D., of Georgia, is the appellant.  I am not clear how or how much Bayer is paying or to whom. Maybe it’s simply paying costs and fees, or maybe it’s paying Dr. Carson himself something, and maybe Dr. Carson will be entitled to recompense(s) if he prevails on his appeal(s).

Whatever their agreement is in totality, Carson will have to pay a penalty if he drops out of the appeal.

Leaders of “the Plaintiff’s Bar” focused on bringing these cases don’t like the Bayer-Carson arrangement one little bit. They denounce it as being a “brazen manipulation of our judicial system.” (I doubt “brazen” is the right word here since Bayer has been, at least pretty, up-front with the appellate court as to what is going on.)

At the same time, what the Bayer-Carson “team” is doing doesn’t fit well into the idea that what we have is an “adversarial system”–something which is celebrated in all parts of the bar over and over again.

“Our adversary system of justice generally depends ‘on the parties to frame the issues for decisions and assigns to courts the role of neutral arbiter  of matters the parties present.'” Greenlaw v. United States, 554 U.S. 237, 243 (2008)


Then again, we have two parties who have conflicts of various sorts arising out of the state of affairs continuing with litigation even though they have solved some, many, or most of their dispute.

At the same time, however, I’d bet that Bayer will be in control of the appellate litigation. I would think that Carson would have a sort of indemnity agreement to protect himself if Bayer were to act contrary to his real interests.

The Bayer-Carson arrangement is really better described as a kind of “political” move. It is a move to intentionally obtain a sweeping restructuring of the Roundup Legal Battle Field by getting a single selected case to the Highest Court, thereby antecedently limiting the rights of other plaintiffs.

“But what’s the real problem here?” one might be heard to ask. The rule of stare decisis permits encourages, entails, and demands that this sort of thing happen, and the application of that rule frequently depends on a single case.

Maybe the problem is that cases that are said to be binding precedent should be–and often are–thoroughly fought through as well as carefully thought through. That cannot happen here. It is also important to remember that a stare decisis rule is always to be viewed in a narrow. That is the opposite of what Bayer hopes to achieve.