It’s been touted as the next asbestos and compared to the cover-ups by big tobacco companies last century, but agribusiness giant Monsanto insists Roundup doesn’t cause cancer.
Three US juries disagree, and the company is facing 13,400 plaintiffs who claim the most commonly used herbicide in the world is the reason they have non-Hodgkin’s lymphoma.
It’s what’s called a mass tort litigation, with lawsuits involving multiple plaintiffs against one defendant, in this case Monsanto, and involves multiple trials in different jurisdictions.
Unlike a class action, injuries suffered by the plaintiffs in mass torts aren’t always the same; they are usually similar but can be wider ranging and individualized.
In the US, mass torts against pharmaceutical companies are the most common, but other well-known mass torts include cases like asbestos.
So far Monsanto has been ordered to pay four cancer patients, with the most recent verdict ordering a payout of $US2 billion ($2.89 billion). All the cases are expected to be appealed.
Acting with malice
Professor Richard Stevens from the University of Connecticut’s School of Medicine said the key point in the trials had not been about proving that glyphosate caused cancer.
“The really important part of this trial is the misbehavior of Monsanto, a company that did everything wrong in terms of how to handle a potential hazard.
“It’s something like the tobacco companies, how they tried to stifle any criticism at all of their product.”
Professor Stevens has spent his career researching why people get cancer and said it was unclear whether glyphosate had the capacity to cause cancer in humans.
Following the latest trial, Brent Wiessner, the lawyer for the plaintiffs, also highlighted the importance of Monsanto’s behavior in the jury’s verdict.
“We had a unanimous verdict in Johnson, unanimous verdict in Hardeman and this verdict [the Pilliods] was essentially unanimous.
“We had 100 per cent, 12 jurors on all the important questions, specifically, ‘Did Monsanto act with malice?’ Every single juror agreed.”
The plaintiffs’ lawyers have relied on what are called the Monsanto Papers: millions of internal documents that reveal the company’s long-running aggressive campaign to protect Roundup.
Can a jury decide on science?
Monsanto’s case throughout the three trials has been simple: it has repeatedly argued that the science says glyphosate is safe, as do regulators across the world.
Rakesh Kilaru, the lawyer for Bayer, Monsanto’s parent company, said he strongly disagreed on the finding that Monsanto had acted with malice and with the notion that the science was uncertain.
“We’re disappointed in the verdict to be sure, but I think it’s very early in the litigation.
“There have been three trials, but none of the cases have proceeded to a final judgement. There are still appeals in all of the cases.”
The focus of Monsanto’s appeals will be on what science was presented to the juries and if it should have been allowed.
“I think across the cases there’s a concern that the methodology they’re using is a methodology the jury should not even be hearing in the first place,” Mr Kilaru said.
“Because it involves picking and choosing certain parts of the science, rather than looking at the whole picture.”
The Monsanto trials have raised the question of whether a jury can or should decide on science.
Proving that glyphosate has caused a specific person’s cancer is difficult; in fact, Professor Stevens said “specific causation” for cancer could almost never be proven.
Despite that, he believed product litigation cases were important.
“It’s a complicated kind of a democracy. We don’t have perfect knowledge of anything,” Professor Stevens said.
“What has been proven in science or in law can always be unproven with new evidence or new experts.”
The next asbestos?
Professor Stevens believed there were two likely scenarios for the future of glyphosate and its maker Monsanto.
The first was that it could follow the path of asbestos, which is now regarded as causing lung cancer.
“The Johns Manville Company back in the ’60s marketed asbestos products [as] the miracle product, it doesn’t wear out, it doesn’t burn, [has a] high insulation factor,” Professor Stevens said.
“They’ve had so many lawsuits, Johns Manville’s been run out of business.”
The second option is that it goes the way of saccharine, an artificial sweetener that in the 1970s was thought to cause bladder cancer but that was later disproven and the product is still widely used.
More trials to come
So far, two of the verdicts against Monsanto have been in the Californian state court and one in the federal court.
There are three core areas of litigation unfolding: there is a set of cases in the Californian state court, there is a set of proceedings in the federal court where basically all the cases filed throughout the country have been put together and consolidated in front of one judge, and there is a set of cases that has been filed in the Missouri state court.
The next case to be heard will be in August, in the Missouri state court at St Louis, where Monsanto is based.
Despite Bayer’s losses in the first three trials, Mr Kilaru said the company would continue to focus on science as its key defence.
“In St Louis, Monsanto is located there and so there may be some more witnesses who testify, but I think that exactly who testifies and when is something we can’t really know until we get to trial,” he said.
But as the first three trials have shown, juries aren’t convinced by Monsanto’s version of the science and have been more swayed by the evidence of its corporate misbehaviour.
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