This week marks the second time a jury has found the key ingredient in Roundup to have caused cancer, as Monsanto Corporation faces hundreds of similar cases in federal multidistrict litigation and in various state courts across the country. All allege Roundup’s main ingredient, glyphosate, caused the development of non-Hodgkins lymphoma. The most recent blow to Monsanto comes from the first of three bellwether cases in the Northern California MDL. In the causation phase of a bifurcated trial for seventy year old Edwin Hardeman, the jury unanimously found Monsanto’s Roundup weed killer to have been a substantial factor in the causation of his non-Hodgkins lymphoma. His case has now proceeded to phase two of the trial for a determination of liability and damages.
In the first case alleging the link between glyphosate and non-Hodgkins lymphoma, decided last August, a state court jury awarded former groundskeeper Dewayne Johnson $280 million, which included $250 million in punitive damages. A judge later reduced the award to $78 million, which represented a one to one ratio of compensatory to punitive damages. Though he had the option for a new trial instead, Johnson chose to accept the reduced award.
Monsanto Corporation, which was recently acquired by Bayer, continues to strongly argue that glyphosate is safe. Proponents of the chemical compare the toxicity of glyphosate to that of salt or aspirin. Glyphosate was developed by Monsanto in in the mid-1970’s and became the key ingredient in the company’s leading herbicide, Roundup.Even though it now faces competition from products claiming to be organic and natural, Roundup is still widely used throughout the United States and in over 150 countries worldwide.
The controversy over glyphosate’s safety really began to mount after the chemical was determined to be a probable human carcinogen in 2015 by the International Agency for Research on Cancer, which is part of the World Health Organization.Shortly thereafter, California became the first state to deem glyphosate as a carcinogen, citing the state’s Proposition 65, which “requires the State of California to maintain and update a list of chemicals that can cause cancer, birth defects or other reproductive harm.” An injunction was issued in early 2018 that barred enforcement of the “inherently misleading” warning provision, but after subsequent litigation on the issue, glyphosate remains on the Prop 65 list.
In contrast, there are numerous studies, reports, and findings supporting Monsanto’s position. These include a 2016 determination by the World Health Organization itself that “glyphosate is unlikely to pose a carcinogenic risk to humans from exposure through the diet.” Also noteworthy, the United States’ Environmental Protection Agency has said the chemical is safe when used in accordance with the directions of the manufacturer’s label and European regulatory agencies have declined to label it as a carcinogen.
The science is extremely important in these cases. Studies on the health effects of glyphosate are ongoing and experts have reached differing opinions. Judge Chhabria, who presides over the glyphosate MDL, has conducted numerous Daubert hearings on issues related to both general and case-specific causation.Though he has commented that the link between Roundup and non-Hodgkins lymphoma “seems fairly weak,” he has been reluctant to bar expert testimony, citing the Ninth’s Circuit’s precedential “toleran[ce]of shaky expert opinions.”