The jury has started their deliberations in phase one of the Hardeman trial after testimony from Monsanto’s experts on Monday and hearing closing arguments from both sides yesterday. This is the first of three bellwether trials in federal court alleging that Monsanto’s glyphosate-containing Roundup weed killer causes cancer. The trial was previously bifurcated into two phases with phase one addressing causation. With the presentation of evidence complete in phase one, the jury is currently deliberating to decide whether Mr. Hardeman has proven by a preponderance of the evidence that glyphosate was a substantial factor in causing his non-Hodgkin’s lymphoma.

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.

Hardeman Trial – Defense Case

On Monday, Monsanto’s expert witness, Dr. Alexandra Levine, a hematologist and oncologist, resumed her testimony after taking the stand briefly on Friday afternoon. Dr. Levine testified that there is no medical evidence that Monsanto’s Roundup caused Hardeman’s cancer and that it was likely caused by chronic hepatitis C. Dr. Levine testified that approximately 75,000 people are diagnosed in the United States annually with more than 60 different types of non-Hodgkin lymphoma, the most common of which is what Hardeman has, diffuse large B-cell lymphoma. Although in most cases a cause is not determined, Dr. Levine found Hardeman’s cancer was likely caused by his chronic hepatitis which she testified he had for so long that the virus could have caused cellular mutations at any time, even after Hardeman was told he was cured in 2006. On cross-examination Dr. Levine conceded that she does not specialize in pesticides and that she typically does not ask her patients if they’ve been exposed to pesticides.

Hardeman Trial – Closing Arguments

The jury heard closing arguments from both sides on Tuesday, with plaintiff’s attorneys arguing that Hardeman’s use of Roundup to kill weeds and poison oak on his property for several years caused his cancer and Monsanto arguing that there is no way to know the cause. Plaintiff’s attorney reminded the jurors of the years of experience plaintiff’s experts had studying pesticides’ link to cancer and pointed to a number of studies that conclude Roundup causes genetic damage in blood and to the “Parry Report,” a report authored by a consultant hired by Monsanto in the 1990s in which he recommended that Monsanto do additional studies to “clarify potential genotoxic activity” of glyphosate. Monsanto’s attorney criticized the studies relied up by plaintiff for being made up of small sample sizes and for being conducted too soon after Roundup was first sold, before the subject could have developed non-Hodgkin lymphoma from glyphosate exposure, based on the 20-year latency period. Monsanto also defended the 2018 Agricultural Health Study which concluded that no association was apparent between glyphosate and malignancies overall, including non-Hodgkin lymphoma.

Hardeman Trial – What’s Next?

Hardeman is the first in a series of bellwether cases to go trial in federal court. The second bellwether trial in the federal multidistrict litigation is scheduled to start in May. However, before that, the Pilliod v. Monsanto trial is scheduled to begin later this month in state court in Oakland, California. Plaintiffs Alva and Alberta Pilliod allege that their use of Monsanto’s Roundup and Ranger Pro herbicides gave them cancer.

Meanwhile, jury deliberations will continue today in phase one of the Hardeman trial, following two hours of deliberations on Tuesday afternoon. If the jury finds glyphosate caused Mr. Hardeman’s cancer, the trial will proceed into phase two, where Hardeman’s lawyers are expected to present evidence allegedly showing Monsanto’s efforts to influence scientists, regulators and the public about the safety of its products.

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 (617-279-8225) or Michaela Lancer (617-279-8216).