Federal Judge Bars Plaintiff’s Evidence in Roundup Trial

Last week I read speculation that the Roundup lawsuits might bankrupt Bayer because the cost of the settlements and verdicts they will have to pay will destroy the company.  Do I believe this?  No.  But, boy, it makes me more interested in every tidbit of information about the Roundup lawsuits pending in federal court.

court-of-appeals-199x300The judge overseeing all of the federal lawsuits involving the weed killer Roundup has granted Bayer’s request to have an upcoming trial split into two phases. This order prevents plaintiffs from introducing evidence that the company tried to influence regulators and manipulate the public into thinking that glyphosate, the active ingredient in Roundup, was safe. Roundup plaintiffs’ attorneys opposed Bayer’s proposals because they felt that their evidence proves Monsanto’s intent and misconduct.

Upcoming trial in February 2019

The upcoming trial is scheduled to begin around late February. The case involves a California man who used Roundup since the 1980s to control poison oak and weeds growing on his property. The complaint had been filed in February 2016, about a year after being diagnosed with cancer. The lawsuit claims that Monsanto did not carefully test, manufacture, and market Roundup. It also claims that Monsanto deceived the public by claiming that their product was just as safe as table salt.

The plaintiff’s attorneys argue that the evidence blocked by the judge show the company acted inappropriately. They also argued that the evidence was crucial to a California state court ruling, which awarded $289 million to a man who developed lymphoma after many years of using Roundup on the job. The verdict resulted in hurt Bayer shares.

Why was the plaintiff’s evidence barred from the jury?

The judge ruled that the evidence barred from the jury would only be allowed if Roundup directly caused the plaintiff’s cancer. He also noted that Monsanto’s influence and manipulation was relevant to damages and liability questions. However, he said Monsanto’s actions were “mostly a distraction,” with regard to whether or not glyphosate causes cancer.

What does Bayer have to say about this issue?

Of course, Bayer welcomed the judge’s decision. Their statement interprets the court’s decision as keeping the trial’s focus on “extensive science relevant to human health.” They requested that some of the evidence introduced by the plaintiffs be excluded because they have no scientific basis. One such study they felt had no scientific basis includes a World Health Organization finding which concluded that glyphosate is “probably carcinogenic.”

Bayer continues to deny that glyphosate, the active ingredient in Roundup, causes cancer. They argue that many independent studies show no evidence that it is dangerous to humans.

Roundup lawsuit in San Francisco court

One of the first Roundup lawsuits to go to trial in the United States involved a Bay Area man who was awarded $289 million around August 2018. In the lawsuit, the plaintiff alleges that using Roundup on the job as a school groundskeeper likely resulted in his cancer. The jury awarded $289 million because they felt Monsanto acted maliciously by not warning the plaintiff and the overall public that Roundup may be harmful. This does not mean that the jury ruled that Monsanto was linked to cancer. An important factor was that the WHO’s study, which has been frequently referenced in many Roundup cases. However, the awarded amount was lowered to $78 million and is currently facing appeal.  Whether it is $289 million or $78 million, it was a mistake for Bayer to let this case go to trial.  Now it may be heading for another mistake next month.

What do these Roundup studies show?

What exactly do the studies show?  There are two sides to this story and they are told very differently. The World Health Organization’s International Agency for Research on Cancer (IARC) published a report in 2015 that concluded that glyphosate was “probably carcinogenic to humans.” The IARC categorized it as a Group 2a carcinogen. They also note that non-Hodgkin lymphoma and other cancers related to blood cells are most associated with Roundup exposure. The American Cancer Society also considers glyphosate to be a carcinogen as well.

Monsanto, which has since been bought by Bayer for a discounted price because of the litigation risk, has tried to influence public opinion by influencing reports that show no connection between glyphosate and cancer. This can be seen in a report found in Critical Reviews in Toxicology. In 2017, plaintiffs’ lawyers suing Monsanto released emails between Monsanto employees. They disclosed that the agriculture giant worked with an independent consulting firm to help Critical Reviews in Toxicology write a report that shows no link between glyphosate and cancer. The emails reveal that Monsanto consulted scientists from outside the company to write that glyphosate are safe to use.

What does this all mean? One take is that Bayer wants to suppress information that links glyphosate to cancer. The other more charitable take is that Bayer believes the product is safe and wants to let its view of the science be known.  You may have your view on this and you probably know mine.  But what is really going to matter is what a California jury thinks of it all next month.

One interesting update in this case that came after I wrote this post is that Moms Across America, which opposes pesticides reports that Costco is no longer selling glyphosate-based weed killers. If this report is correct, it is a big deal and another blow to Monsanto’s pocketbook.