After nearly a week of deliberations, the jury reached a verdict yesterday in the Hardeman case finding that  glyphosate-containing Roundup weed killer was a substantial factor in causing Edwin Hardeman’s non-Hodgkin’s lymphoma. That was the single question that the six jurors had to reach a unanimous decision on in phase one of the trial before the damages portion of the trial could proceed. Prior to rendering their verdict, the jury asked to have plaintiff’s testimony read back. Hardeman previously testified regarding his use of Roundup to kill weeds and poison oak on his 56-acre property for more than 25 years. He testified that during this use, he sometimes felt the mist from the spray blowing onto his skin. Hardeman was diagnosed with non-Hodgkin lymphoma in February of 2015, which the jury has now determined was caused by his use of glyphosate-containing Roundup.

What is Glyphosate?

Glyphosate is a man-made chemical, first synthesized by a Swiss chemist in 1950. It was independently discovered by scientists at Monsanto in the United States in 1970, when the company asked its scientists to develop an effective herbicide compound for consumers to use as a weed killer. The product was brought to market in 1974 under the brand name Roundup.

It was quickly realized that glyphosate was one of the most effective weed killing agents on the market, as it inhibits photosynthesis in plants, which ensures that plant cells are not able to regenerate, thereby killing the plant that glyphosate is applied to.  Roundup soon became one of the most widely used weed killing agents by consumers for use on residential and commercial properties, by landscaping companies, and the government (primarily for use by groundskeepers at public schools). In the agricultural sector, glyphosate’s use was not so readily adapted, as it was so effective that it killed not only weeds, but the crops themselves. It was not until 1996 with the advent of genetically modified crops that were resistant to glyphosate that the product became widely used on farms. Genetically modified crops led to a 15-fold increase in the use of glyphosate in the agricultural sector. According to the U.S. Environmental Protection Agency (EPA), in 2007, glyphosate was the most used herbicide in the United States agricultural sector, with 180 to 185 million pounds applied, the second-most used in home and garden with 5 to 8 million pounds used, and the U.S. government applied 13 to 15 million pounds in industry and commerce.

Is Glyphosate Harmful To Human Health?

Glyphosate studies have been conducted for years prior to the Johnson verdict in July of 2018. The majority of the initial studies were conducted on rats. For example, one trial in the United Kingdom, in which rats were fed low levels of glyphosate throughout their lives, found that the chemical contributed to a higher risk of nonalcoholic fatty liver disease, a condition in which fat accumulates in the liver and contributes to inflammation and scarring of the tissue. Studies have also been conducted on other mammals, such as rabbits, aquatic fauna, plants, and soil bacteria.

Based on these studies, in 2013 a review of over 1,000 epidemiological studies, animal studies, and in vitro studies were reviewed by the German Institute for Risk Assessment. It found that “no classification and labelling for carcinogenicity is warranted” and did not recommend a carcinogen classification.  The results were given to the European Food and Safety Authority (EFSA) and in November of 2015, the EFSA published its own conclusion of the available studies, stating that glyphosate was “unlikely to pose a carcinogenic hazard to humans.”

In the U.S., in 1993, the Environmental Protection Agency (EPA) studied whether glyphosate was hazardous to human health and concluded that the chemical was not carcinogenic. In its review, the EPA considered a “worst case” dietary risk model of an individual eating a lifetime of food derived entirely from glyphosate-sprayed fields with residues at their maximum levels. This model indicated that no adverse health effects would be expected under such conditions. In 2015, the EPA initiated another review of glyphosate’s toxicity and in 2016 reported that glyphosate is likely not carcinogenic.

However, in March 2015, the World Health Organization’s International Agency for Research on Cancer (IARC) concluded its own analysis of the available epidemiological studies and found that glyphosate , is “probably carcinogenic to humans.” “For the herbicide glyphosate , there was limited evidence of carcinogenicity in humans for non-Hodgkin lymphoma,” the report stated. “The evidence in humans is from studies of exposures, mostly agricultural, in the USA, Canada, and Sweden published since 2001. In addition, there is convincing evidence that glyphosate also can cause cancer in laboratory animals.”

The IARC report was criticized for not considering all of the available literature on glyphosate. However, IARC admitted that it disregarded any studies that had any connection to the agricultural industry (e.g., studies funded by the industry). This was in contrast to prior government agencies, who considered such studies while adjusting for potential biases. Nevertheless, it was the IARC statement regarding the “probable” carcinogenicity in humans that sparked the glyphosate litigation. The cases were ultimately consolidated on a single docket, where now over a thousand plaintiffs have pending lawsuits alleging that glyphosate in Roundup week killer caused their cancer.

What’s Next in the Hardeman Case?

That Judge Chabbria granted Monsanto’s request for a bifurcated trial was viewed as a defense victory because it prevented jurors from hearing allegations about Monsanto’s alleged conduct seeking to influence the scientific findings regarding glyphosate. Bayer Science (which acquired Monsanto last year) maintains that there is no valid scientific evidence to contradict conclusions that glyphosate-based herbicides are not carcinogenic. Monsanto presumably hoped that if the jury were to hear only about the science, then they would be persuaded by findings such as the US Environmental Protection Agency’s conclusion that glyphosate is unlikely to cause cancer.  Despite the EPA conclusion and Monsanto’s criticisms of the studies offered by plaintiff, the jury found that plaintiff’s use of Roundup was a substantial contributing case of plaintiff’s illness. With the causation phase complete, the trial will move on to phase two where Monsanto’s liability will be determined and damages may be awarded to plaintiff. Opening arguments for the second phase of trial will take place today.

The Dewayne Johnson Case

While the Hardeman case is the first of the federal lawsuits to go trial, this is the second jury to find glyphosate was a substantial contributing cause for a plaintiff’s development of non-Hodgkin’s lymphoma.  Last year a jury in state court in San Francisco found Monsanto liable in the Dewayne Johnson case issuing a $289 million verdict against Monsanto which was later reduced to $78 million.

In the seminal glyphosate case, plaintiff Dewayne Johnson, age 46, alleged that his non-Hodgkin’s lymphoma was caused by mixing and spraying Roundup as the groundskeeper for a school district in California. Johnson was diagnosed with cancer in 2014. His case was expedited for trial, as his doctors confirmed that he does not have long to live. The trial took four weeks to conclude, during which time jurors heard testimony from statisticians, doctors, public health researchers and epidemiologists who disagreed on whether glyphosate can cause cancer.

The landmark California case concluded after three days of deliberations in which a 12-member jury found that Monsanto’s Roundup and Ranger Pro weed killing products were unsafe and the primary cause of plaintiff DeWayne Johnson’s rare form of non-Hodgkin’s lymphoma. The jury also found that Monsanto had failed to properly warn customers of the risks associated with using the products and that the company acted with malice, oppression or fraud.

The San Francisco jury, made up of five women and seven men, awarded Johnson $39.25 million in compensatory damages and $250 million in putative damages. The compensatory aspect included $2.25 million in economic loss and $37 million in noneconomic damages, one million for every year of plaintiff’s life lost due to cancer.

What’s Ahead in the Glyphosate Litigation?

The jury’s verdict in Hardeman will impact more than just the Edwin and Mary Hardeman.  Judge Chhabria previously designated the Hardemans’ lawsuit and two other federal suits as the first three to go to trial, as a way of showing both sides the possible outcomes. Hardeman’s lawsuit is the first to be tried in federal court and serves as a bellwether for over 700 similar cases filed in federal courts across the United States. Plaintiffs, the legal community, and investors have been watching the trial closely as the outcomes of the bellwether trials may serve as an indication of whether Monsanto should continue to fight the pending lawsuits or move closer to settlement. Judge Chhabria suggested in court that if there are three verdicts by May, he might “push the pause button” on the federal cases pending before him to allow the parties to discuss settlement. Pilliod v. Monsanto Company will be the next glyphosate trial.

The Alva and Alberta Pilliod Case

In addition to the federal suits, more than 250 cases in which plaintiffs allege that exposure to Monsanto’s Roundup caused them to develop non-Hodgkin lymphoma have been consolidated before Judge Winifred Smith in state court in California. The Pilliod case, set to start jury selection next week, will be the next case to test the validity of the science behind glyphosate’s potential carcinogenicity. The Pilliod suit involves two married plaintiffs, Alva and Alberta Pilliod, who both developed non-Hodgkin lymphoma at the same time and allege that glyphosate is the cause. Monsanto’s request that the Pilliod’s cases be tried separately was previously denied by Judge Smith and she reaffirmed that decision last week following Monsanto’s motion for reconsideration. Monsanto argued that there is an “inherent prejudice” if the cases are tried together and that the Pilliod’s development of different types of non-Hodgkin’s lymphoma warranted two different juries addressing the individual causation issues. Judge Smith was not persuaded, pointing out that even if there were two juries, they would still hear about each of the plaintiffs, as each spouse would want to testify in the other’s trial. Notably, the Pilliod trial, like the prior state trial, Johnson, will not be bifurcated into causation and liability phases as the Hardeman federal trial was, which means plaintiff will spend time reviewing Monsanto historical documents as part of their case.  Given the potential impact of this third trial on the glyphosate litigation overall, we will be following the case closely.

CMBG3 Law LLC has represented clients in products liability matters, especially with respect to allegedly toxic chemicals. We provide the most current legal advice to our clients by staying on top of developments in science, medicine, and regulations regarding a wide variety of substances and products used by consumers every day. If you have any questions or would like more information, please contact John Gardella (email him or 617-279-8225) or Michaela Lancer (email her or 617-279-8216).