58
Wisner’s client, a 46-year-old former school district
groundskeeper from California who was dying of cancer, said
his illness had been caused by spraying hundreds of gallons of
Monsanto Co.’s weedkiller, Roundup. Wisner’s team had com-
piled hundreds of documents backing the claims and demon-
strating that Monsanto may have acted in bad faith, cozying
up to officials in the U.S. Environmental Protection Agency
and undermining scientists who raised questions about the
safety of the company’s prized herbicide.
When Wisner found himself alone in a courtroom with two
of Bayer’s lawyers, he asked them, “What are you doing? Why
are you trying this case?” To clarify the question, he added,
“We’re going to win, and it’s going to make it much harder for
you to settle cases in the future.”
Bayer’s lawyers were unfazed. “They said, ‘Oh, Brent,
you know, there’s winning, and then there’s winning. And if
you think you’re going to win a couple million dollars, and you
think that’s a big win, that’s fine—but we don’t think you have
a chance at getting a very big verdict here,’” Wisner recalls.
Shocked, he told them, “I don’t know what you’re telling
your client, but I’m going to be asking for a stupid amount of
money.” (The lawyers for Bayer say they have no recollection
of the conversation.)
Bayer investors probably wish the company never let that
case get to trial. Or better yet, never bought St. Louis-based
Monsanto in the first place. After a four-week trial, a San
Francisco jury found that Roundup had caused Wisner’s client’s
non-Hodgkin lymphoma, and awarded him $289 million. (The
figure was later reduced to $79 million.) News of the judgment
wiped $10 billion off Bayer’s market value in a single day and
opened the door for countless more Roundup lawsuits.
Over the following nine months, Bayer lost two more trials
in the Bay Area. In the most recent, Wisner’s team represented
a California couple who used Roundup on several properties
during their almost 50 years of marriage before both contracted
non-Hodgkin lymphoma. This time the jury awarded the plain-
tiffs $2 billion, the largest verdict in the U.S. this year for a
product-defect claim. When a Bayer lawyer asked one juror
what the panel needed as proof that the Monsanto product was
safe, the juror replied, “I wanted you to get up and drink it.”
A judge later cut the award to $87 million to comply with
legal precedents, but refused to throw out the verdict as Bayer
requested. Now thousands more complaints are being filed each
month, and the number of plaintiffs lining up to sue Bayer has
climbed past 18,400. Meanwhile, the company’s shares have
tumbled about 33% since the deal closed, leaving its market
value at $68 billion, barely more than it paid to buy Monsanto.Analysts estimate that settling all the U.S. lawsuits could
cost from about $2.5 billion to $20 billion. Meanwhile, Wall
Street, retail investors, farmers, Bayer employees, and just
about everyone else is wondering, What was the company
thinking? Didn’t Bayer’s leaders anticipate trouble when they
decided to acquire Monsanto, long ranked by the Harris Poll
as one of America’s most hated companies? Did they truly
believe the Roundup litigation wouldn’t be a problem? And
can Bayer survive this self-inflicted wound?
“This whole thing could have been tucked away neatly,
quietly settled for less than a billion dollars three years ago—
even half of that,” Wisner marvels. “What I’ve seen in this
entire litigation from the very beginning is a level of hubris
that is staggering.”T
he man responsible for acquiring Monsanto is Werner
Baumann, Bayer’s chief executive officer. Fifty-six
years old, trim, cleanshaven, with close-cropped sil-
ver hair and rounded glasses, Baumann was just two weeks
into his tenure as CEO when he flew to St. Louis in May 2016
carrying a portable printer. At his hotel, he finalized an offi-
cial letter before taking a taxi to Monsanto’s headquarters to
make a secret bid.
At the time, Bayer rivaled software giant SAP SE as the most
valuable German company on the Frankfurt stock exchange.
The 156-year-old industrial titan, best known for inventing
aspirin, has long enjoyed a reputation for stability, trans-
parency, and scientific innovation. Its headquarters, just
north of Cologne in the sleepy midsize city of Leverkusen,
are marked by a 164-foot-tall illuminated logo known as the
Bayer Cross. It recently sold the sprawl of chemical plants
along the Rhine River, but it still owns Bayer Leverkusen, a
soccer team started for employees in 1904 that now com-
petes in Europe’s Champions League, along with the team’s
30,000-seat stadium. Other holdings around town include
an 800-seat “rest and recuperation house” that hosts theater
productions and concerts by the company-sponsored Bayer
Philharmonic Orchestra, plus restaurants, a four-star hotel,
and an 80,000-bottle wine cellar.
Until the early 2000s, Bayer operated as an unfettered old-
school conglomerate with as many as 30 separate businesses,
including pharmaceuticals, animal health, plastics, rubber,
basic and fine chemicals, and photographic products. Then
it haltingly began bending to modern investors’ demands to
sharpen its focus. In 2014, Baumann’s predecessor, Dutch-
American Marijn Dekkers, christened Bayer an “integrated
life science company” dedicated to caring for plants, animals,I
n July 2018, a baby-faced lawyer named R. Brent Wisner seized the opportunity
to ask his legal opponent a question that had been bugging him. Through a seriesof accidents, Wisner had found himself co-leading a monumental case against
Bayer AG, the German chemicals giant that had recently acquired Monsanto for $63 bil-lion. Two weeks into the heated courtroom battle, he felt fairly certain he was going
to win big and inflict lasting damage on the company. So he wanted to know: Why on
earth wasn’t Bayer settling?