RoundUp

Plaintiff’s $80 Million in Roundup Case Could Lead to Settlement Talks

Glyphosate is a herbicide and crop desiccant designed to quickly kill various plants and grasses. It was discovered by Monsanto chemist John Franz in 1970 and subsequently approved for use in the United States in 1974. Since then, glyphosate has become the world’s most widely used herbicide and is the key ingredient in Roundup, a popular weedkiller developed by Monsanto.

Glyphosate is absorbed through foliage and roots of actively growing plants and works by inhibiting a key plant-based enzyme involved in the synthesis of three amino acids: phenylalanine, tryptophan, and tyrosine.

Following its approval, glyphosate was quickly adopted for agricultural use. In 2007, it became the most widely used herbicide in the United States’ agricultural sector. Between 1970 and 2016, the use of glyphosate increased by a factor of 100.

Despite approval from many of the world’s key regulatory bodies, there are still concerns regarding glyphosate’s effects on humans. A 2013 toxicology review conducted by the German Federal Institute for Risk Assessment Technology concluded that much of the available data in regards to exposure to glyphosate and related formulations was contradictory at best. Conversely, a meta-analysis published one year later noted increased risks of non-Hodgkin lymphoma (NHL) in workers exposed to glyphosate formulations. Likewise, research conducted this year at the University of Washington concluded that exposure to Glyphosate increases the risk of some cancers, including NHL, by 40%.

In 2015, the World Health Organization’s International Agency for Research on Cancer (IARC) classified glyphosate as category 2A, or “likely carcinogenic to humans”. This conclusion was based on a combination of in vitro studies, epidemiological studies, and animal studies.

Unsurprisingly, the pervasiveness of glyphosate-based herbicides has resulted in a number of lawsuits, currently numbering in the thousands, against Monsanto. The first Roundup cancer lawsuit to move to trial was Dewayne Johnson v. Monsanto Company, which served as a bellwether for future litigation.

Dewayne Johnson v. Monsanto Company

Johnson, a former groundskeeper and pest-control manager for the Benicia Unified School District, was required to use Monsanto’s herbicides on a regular basis. In 2014, he began experiencing skin irritation and subsequently contacted Monsanto regarding the safety of their product. While his lawyers eventually discovered internal deliberations amongst company employees, no one at Monsanto ever responded to Johnson’s inquiry.

Later that year, Johnson was diagnosed with epidermotropic T-cell lymphoma. Regardless, he was still required to use Monsanto’s herbicides in accordance with standard protocol. Despite spending most of 2015 going through chemotherapy treatments, his cancer progressed. Two years later, in September 2017, a biopsy revealed NHL.

Johnson’s lawsuit commenced on July 9, 2018. Shortly thereafter, the jury unanimously ruled that Monsanto was liable and awarded Johnson $289 million in damages ($250 million in punitive and $39 million in compensatory). The punitive damages were later reduced to $39 million by a judge who subsequently rejected Monsanto’s request to overturn the verdict. Mr. Johnson accepted the decision, which prompted Monsanto to file an appeal.

During the trial, Monsanto disputed the notion that glyphosate causes cancer, citing the fact that the EPA has classified it as Group E, meaning there is no carcinogenic risk to humans. Johnson’s attorney, Timothy Litzenburg, countered this assertion by claiming that glyphosate itself was not the sole cause; rather, it produces a synergistic effect when combined with other ingredients in Roundup, which in turn causes carcinogenesis in humans.

In addition to agreeing that Roundup played a significant factor in Mr. Johnson’s diagnosis, the jury also concluded that Monsanto failed to warn of associated health hazards and acted with malice. These rulings would be echoed in future trials.

Edwin Hardeman v. Monsanto Company

In March 2019, a six-member jury ordered Monsanto to pay over $80 million in damages to Edwin Hardeman after determining that his cancer was partially caused by his use of Roundup. The verdict served as an important indicator of the direction the public debate is headed, particularly within the context of multi-district litigation (MDL) and judicial council coordination proceedings (JCCP).

Like Mr. Johnson, Mr. Hardeman was diagnosed with NHL after using Roundup over the course of several decades. Shortly after his diagnosis, the IARC alleged that glyphosate could be a carcinogen, which prompted Hardeman to file a lawsuit against Monsanto.

During the discovery portion of the trial, documents emerged showing how Monsanto engaged in covert tactics and spent millions of dollars to discredit the IARC. Specifically, internal Monsanto records revealed the company ghostwrote an article critical of the IARC. Additionally, they also worked to discredit Gilles-Éric Séralini, a French scientist who published his 2012 findings about rats that ingested water infused with Roundup.

In light of these findings, Judge Vince Chhabria issued restrictions pertaining to the admission of any post-2012 evidence, citing the fact that information relevant to Hardeman’s lawsuit would have occurred pre-2012. In Chhabria’s words, “conduct that occurred post-2012 that sheds light on what was happening pre-2012 should generally be admissible, potentially subject to a limiting instruction if Monsanto wants it.” However, he also stated that even if this conduct meets those stipulations that “there may be other reasons to exclude it.” This resulted in the barring of all evidence concerning Monsanto’s efforts to discredit both the IARC and Séralini.

Much like Mr. Johnson’s trial, the jury’s verdict asserted that Roundup was a “substantial factor” in regards to Mr. Hardeman’s contraction of NHL. Consequently, the jury awarded Mr. Hardeman $75 million in punitive damages and $5 million for past and future suffering for a total of $80 million.

JCCPs and MDLs

Last week, a third lawsuit against Monsanto went to trial. As with the previous two, the plaintiffs, Alva and Alberta Pilliod, alleged their frequent use of Roundup since the ‘70s played a significant factor in their contraction of NHL. Monsanto has since released a statement that indicates their defense strategy will remain largely the same. In their statement, they outright deny “that Plaintiffs sustained or will sustain any injury, damage or loss by reason of any act or omission of Monsanto.”

The trial is currently set to resume Tuesday, April 2, in Alameda County Superior Court in Oakland, California. Significantly, it is grouped with the California Roundup JCCP.

JCCPs are similar to MDLs, except they are consolidated in California state court rather than federal court. Like MDLs, JCCPs involve coordination between multiple civil cases in different counties where claims involving a common law have been filed. This allows for pre-trial discovery, motions, and an initial bellwether trial. JCCPs and MDLs promote efficient and economical case management with their close coordination, joint discovery, and occasional shared hearings.

The Roundup JCCP involves over 150 state-level lawsuits filed by agricultural workers, farmers, gardeners, and others who claim to have contracted NHL as a direct result of exposure to Roundup.

At this point, the aforementioned trials give the plaintiffs a clear advantage. Since the jury deliberations have consistently concluded that Monsanto acted maliciously and failed to warn consumers of the existential risks posed by their product, it is likely this precedent will continue and could prompt Monsanto to negotiate settlements rather than proceeding with thousands of trials that do not appear to be in their favor.

Sources:

https://www.epa.gov/sites/production/files/2015-10/documents/market_estimates2007.pdf
http://dar.efsa.europa.eu/dar-web/provision
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4025008/
https://medicalxpress.com/news/2019-02-exposure-chemical-roundup-cancer.html
https://www.nature.com/news/widely-used-herbicide-linked-to-cancer-1.17181
https://www.justicepesticides.org/en/juridic_case/dewayne-johnson-v-monsanto/
https://usrtk.org/monsanto-roundup-trial-tracker-index/
https://usrtk.org/wp-content/uploads/bsk-pdf-manager/2019/03/Trial-Transcript-The-Verdict-March-19-2019.pdf

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