The Next Roundup Cancer Lawsuit on Deck

U.S. District Judge Vince Chhabria will preside hold the first glyphosate cancer case in federal court on February 25, 2019. It will be the first of over 600 cases that are in federal litigation to go to trial.

First Federal Trial Involving Roundup

courthouse1-300x189This lawsuit involves a California man who claims that his long-term exposure to Roundup resulted in him receiving large B-cell non-Hodgkins lymphoma. His exposure stems from using Roundup to control poison oak and weed growth on his property since the 1980s. The complaint was filed in February 2016, about one year after his cancer diagnosis in 2015. The lawsuit alleges that the Monsanto, Roundup’s manufacturer, failed to exercise with care with respect to testing, manufacturing, and marketing it. It also alleges that Monsanto was being deceptive by claiming that Roundup was as safe as table salt.

Number of Claims Against Bayer

Bayer currently faces over 9,000 product liability lawsuits against them. These lawsuits were filed by individuals who claim they receive non-Hodgkin’s lymphoma and other cancers from Roundup exposure. By purchasing Monsanto, they have become the defendant in future trials.  (Bayer seems to love buying companies with litigation risks.  Along these lines… I have a question.  How much money does Bayer have to pay in settlements and verdicts to make the numbers work on the purchase?  You know they did that calculation.) Around 600 of these cases were centralized in the federal court system in the Northern District of California.

Centralization of Roundup Cases in Federal Court

In October 2016, the Multi-district litigation panel agreed that the Roundup cases should be consolidated. The panel notes that there were common questions of fact in each case, making centralization appropriate. They also felt that these cases should be in the Northern District of California under Judge Vince Chhabria. The panel chose this district because it was where the initial Roundup lawsuits were filed.

Johnson Verdict

The first Roundup lawsuit to go to trial in U.S. courts was in California. It involved a Bay Area man who was initially awarded a whopping $289 million against Monsanto. This ruling came in August 2018. The plaintiff in this lawsuit claimed that exposure to Roundup while on the job resulted in his cancer. He was a former school groundskeeper who used Roundup to control weeds. The plaintiff experienced skin lesions throughout his body as a result of his cancer. His doctors note that he may only have a few months to live. The plaintiff’s wife had to take another job to pay for his medical bills. The jury initially ruled that Monsanto “acted with malice or oppression.” This ruling does not implicate that Roundup was the direct cause of the plaintiff’s cancer. Instead, the jury ruled that Monsanto had failed to warn the plaintiff of Roundup’s potential dangers. This is what the lawsuit entails.

Two months after the verdict, a California judge ruled that settlement was too high and reduced it to $49 million. The judge also issued a new trial for the case. She argued that the plaintiff and his legal team did not provide conclusive evidence that Monsanto had in fact acted with malice intent with respect to Roundup.

The AHS Study on Roundup

In the comments in our last glyphosate post, much is made by the pro-defense commentators about the AHS study that “proves” that Roundup does not cause cancer. In fact, the AHS study does not necessarily prove this. Dr. Blair, a lead investigator of the AHS study, has said that glyphosate is a probable human carcinogen. Dr. Blair says there are real weaknesses in the AHS study, including a lack of follow-up which is bound to be fatal to a toxic exposure study.  It is also worth noting that Dr. Donna Farmer, Monsanto’s head toxicologist, prepared a presentation in 1999 characterizing the AHS as a flawed study that was junk science.  Sure, there is more data today for the study than in 1999.  But it underscores the selective acceptance of studies that look at glyphosate and cancer risk.

More Bayer’s Argument

Bayer argues that more recent studies on Roundup’s potential links to cancer appear to be contradictory and inconclusive. In 2015, the World Health Organization’s (WHO) International Agency for Research on Cancer (IARC) reported that glyphosate is likely to be carcinogenic. By contrast, an article published in a 2016 supplemental issue of Critical Reviews in Toxicology refutes the IARC’s conclusion. It found that glyphosates were not linked to cancer.

These contradictory studies appear questionable as well. Reuters reported in October 2017 that the WHO omitted information contradicting the IARC’s conclusion that glyphosates may cause cancer. However, even the Critical Reviews in Toxicology article seems questionable as well. An attorney suing Monsanto revealed emails between them and an independent firm who helped write the study. The emails note that the firm’s drafts were to be reviewed by employees of Monsanto.

What Is the Answer?

Who should you believe?  I know I learned a lot in by reading the comments in the last Roundup post that I did.  Let’s not pretend there are not strong arguments on both sides.  That said,  I think the evidence and common sense leads us to believe that the glyphosates cause cancer.  I’m a plaintiff’s lawyer so it is easy to wonder whether I’m biased in favor of the assumption of liability.  But the jury’s verdict also reassured me.  Another verdict in this MDL trial would be another step in that direction (and, again, a huge tell as to the settlement value of the remaining 9,000 cases).   It is a big deal and the result will give clues as to where this litigation is going.