Sheller v. Bayer AG

Background

Aaron Sheller, identified in the opinion as an Indiana farmer, moved to appoint Fegan Scott LLC as interim counsel for a proposed class of all people who used Roundup for agricultural or other commercial purposes in 16 states and the District of Columbia. Sheller had not been diagnosed with cancer. He alleged that Monsanto and Bayer were negligent and sought medical-monitoring costs to address the increased cancer risk he attributed to Roundup exposure. The proposed class included millions of absent class members.

Legal standard

Federal Rule of Civil Procedure 23(g) addresses appointment of class counsel. The court first considered whether Fegan Scott could fairly and adequately represent the proposed class, including the firm’s work investigating potential claims, its experience with class actions, and the types of claims involved. The court found no reason to doubt the firm’s qualifications on that issue.

The court separately considered whether it should use its discretion to appoint interim class counsel before deciding whether the case was suitable for class treatment. Rule 23 permits that appointment before class certification, but the court explained that appointment is generally considered after certification unless a special justification exists. The relevant question was whether early appointment was necessary to protect the proposed class’s interests.

Court’s analysis

The court recognized that the interests of people with exposure-only claims may differ from the interests of people already diagnosed with cancer. Those diagnosed may seek immediate payments, while people seeking medical monitoring may want to preserve an adequately funded source of future compensation.

Fegan Scott asked for a role in court-ordered mediation to protect the interests of absent members of the proposed medical-monitoring class. The court found, however, that the motion gave no reason to believe negotiations between Monsanto and people currently suffering from cancer would affect future negotiations involving the proposed medical-monitoring class. Unlike certain asbestos cases, the motion offered no evidence that the groups were competing for diminishing assets that might be insufficient to satisfy potential liability. The motion also identified no other interest justifying a departure from the usual sequence for class actions.

Disposition

The court denied without prejudice the motion to appoint Fegan Scott as class counsel. The opinion did not decide whether the proposed class should be certified or whether Sheller’s underlying negligence and medical-monitoring claims would succeed.