In August of 2018, the first Roundup cancer trial resulted in a San Francisco jury awarding a former groundskeeper $289.2 million who maintained that his non-Hodgkin lymphoma was caused by repeated exposure to two Bayer weedkillers. A U.S. District Court Judge reduced the damages to $78 million, but rejected Monsanto’s appeal to overturn the verdict.
For decades, the U.S. Environmental Protection Agency has maintained that glyphosate, the primary chemical in a weedkiller called Roundup, is not likely to be carcinogenic to humans. However, in 2015, the International Agency for Research on Cancer designated glyphosate as “probably carcinogenic to humans.” This declaration opened the flood gates of litigation and companies’ worst fear materialized: the uphill battle of junk science.
One such case currently set to be heard in the San Francisco U.S. District Court involves the case of a 70 year old California Resident who claims that his exposure to Roundup caused his cancer. This case is very significant because it is what is called a “bellwether trial.” The outcome of bellwether cases help attorneys dealing with similar cases to decide whether to take the case to court or to settle. A jury verdict in favor of plaintiffs would mean a stronger bargaining position in over 9,300 and counting similar law suits being brought by home gardeners, landscapers, and agricultural workers.
The silver lining for agribusiness is that U.S. District Judge Vince Chahhbria approved Bayer’s request to break the trial up into two phases. The first phase will deal with the science-meaning the jurors will first have to assess the credibility of competing studies on complex topics like cell mutations and genotoxicity, before they can assess negligence. This unusual split-trial approach is a set-back for plaintiffs counsel, who commonly distract from the hard science by attacking the company’s behavior. Further, the split-trial approach means the jurors won’t simultaneously hear allegations that the company hid dangers about its products from the public. Only if the jurors find plaintiff’s claims as valid based on the science, will they move on to the question of negligence and make arguments for punitive damages.
The novel approach of breaking a trial down into two distinct and separate phases is good news for companies because this sets the bar higher to tighten the floodgates of litigation based on bogus claims or junk science. This approach is an indicator that the Judge will narrow his focus to methodology used by experts and the underlying data. However, Judge Chahhbria will have to make some tough calls as he determines what evidence will be heard in the first part of the trial. For instance, would internal emails that purportedly show either side influencing a scientist’s research or the opinions of regulators make the cut? It seems that Judge Chahhbria is intent in paving the way to maintain the integrity of the split-trial approach. In an extraordinary move on February 25, 2019, Judge Chahhbria threatened to shut down Plaintiff’s attorney because she violated the Judge’s ban on talking about Monsanto’s influence on government regulators and cancer research. This ruling is crucial as it means that the Judge is putting his money where his mouth is. Jurors must narrowly consider only the studies surrounding Roundup’s cancer risks before moving on to the second phase of assessing liability and damages.
We will continue to monitor this case for pertinent rulings and outcomes.