The first of three federal bellweather trials (Hardeman) alleging that Monsanto’s glyphosate-containing Roundup weedkiller causes cancer got underway last week with the jury hearing opening statements last Monday and from expert witnesses throughout the week. In addition to the two sides setting out their conflicting trial themes, opening statements resulted in U.S District Court Judge Chhabria ordering sanctions against plaintiff Edward Hardeman’s attorney for violating pre-trial orders.

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 glysophate 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 bee 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 glysophate. 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 govenment 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 – Opening Statements & Sanctions

During opening statements, jurors heard from Edward Hardeman’s attorney about Mr. Hardeman’s use of Roundup to kill weeds and poison oak on his 56-acre property for more than 25 years. Counsel told jurors that during this use, mist from the spray fell on Hardeman’s skin and face and resulted in his development of non-Hodgkin lymphoma. Monsanto’s attorney, on the other hand, argued that Hardeman’s illness was not caused by Roundup, but more likely was caused by plaintiff’s weight, age and hepatitis C.

Previously, during pre-trial motion practice, Judge Chhabria granted Monsanto’s request for a bifurcated trial with phase one of trial to address causation and, if needed, phase two addressing liability and damages. The bifurcation was meant to limit phase one to scientific evidence without the jurors hearing about Monsanto’s alleged conduct seeking to influence the scientific record and knowledge of certain scientific findings.

Judge Chabbria’s interruptions during plaintiff’s opening statement and instructions that she move on from several topics demonstrated his intent to require all prior pre-trial rulings to be followed. His apparent frustration with plaintiff counsel’s discussion of off-limit topics resulted in a hearing outside the presence of the jury regarding whether sanctions would be ordered. Following the hearing, Judge Chhabria’s three-page written order sanctioning plaintiff counsel ordered her to pay $500 for mentioning six topics in her opening statement that he excluded from the first stage of trial.

Hardeman Case – Plaintiff’s Experts

After opening statements, the jury heard from plaintiff’s first expert witness, Beate Ritz, an epidemiologist from UCLA’s School of Public Health. In addition to offering her opinion that she “absolutely” believes that glyphosate (the active ingredient in Roundup) can cause cancer, her testimony also included criticism of the Agricultural Health Study that found no statistically significant associations with glyphosate use and cancer. Ritz pointed to the low response rate from the 52,000 farmers asked to complete a survey regarding their pesticide use, the inconsistent and unreliable questions asked, and peer-reviewed papers to conclude that the study has problematic data. On cross-examination Monsanto’s attorney inquired into why Ritz did not raise her criticisms of the study when she served on an advisory board to the researchers.

Jurors also heard from plaintiff’s expert witness, Dr. Christopher Portier, former director of the Office of Risk Assessment Research at the National Institute of Environmental Health Sciences. He testified, via a prerecorded video deposition, that based on his review of multiple animal studies and epidemiological studies, there is “very little uncertainty” that glyphosate can cause cancer. He also testified regarding the International Agency for Research on Cancer determination in 2015 that glyphosate is a “probable” human carcinogen.

The Dewayne Johnson Case

That the Hardeman trial is bifurcated is a key difference from the Dewayne Johnson, a state court case that went to trial last year, also in San Francisco, and resulted in a $289 million verdict against Monsanto (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 did 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.

Science on Trial in Hardeman Case

The first week of the Hardeman trial has proven interesting. We can expect to hear from additional experts this week as the debate on the science regarding glyphosate continues.

The high-profile nature of this trial and the glyphosate-litigation in general is already having an impact beyond California with a claim having recently been filed in Worcester, Massachusetts, in which Wendy Burdett alleges that her at-home use of Roundup for more than 13 years led to her diagnosis of non-Hodgkin’s lymphoma. Burdett alleges that despite IARC’s classification in 2015, Monsanto knew of the hazards of glyphosate for decades and did not warn. Burdett goes even further and claims that Monsanto “relied upon flawed industry-supported studies designed to protect [their] economic interests rather than [Burdett] and the consuming public.” For more information about this case, please read our prior article.

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 Michaela Lancer (email her or 617-279-8216) or John Gardella (email him or 617-279-8225).