On Tuesday, a federal jury found that Monsanto’s popular weed-killer, Roundup, contributed to one man’s cancer. In the second such verdict, the San Francisco jury decided the herbicide was a “substantial factor” in causing Edwin Hardeman’s non-Hodgkins lymphoma. The 70-year-old Sonoma County resident used the weed-killer on his property for 26 years, the New York Times reports.
This marks a big setback for Bayer, which bought Monsanto last year and maintains that its product does not cause cancer. “It’s a very important key ruling for this case,” which Jean Eggen, a law professor at Widener University, calls a “bellwether” for the hundreds more to come in this multi-district litigation. Eggen specializes in personal injury lawsuits concerning exposure to chemicals or dangerous substances. “But also it may indicate some things about what’s come to in the subsequent litigation,” she adds.
In the second half of the two-part case, Hardeman’s lawyers will seek to prove that Bayer knew about the risks and failed to warn him. Another favorable verdict would hold the company liable for the product. Here’s what this could mean long-term.
We Could See (Even More) Lawsuits Over Roundup
Hundreds of cases over Roundup have been consolidated in San Francisco’s federal court, NPR reports—and there are thousands more (11,200 as of February, according to the New York Times). Now, Eggen says you can expect that number to rise.
After a similar verdict last year, when the jury awarded a former groundskeeper with cancer $289 million in damages, there was an uptick in Roundup lawsuits. “Many of the plaintiffs fit the same kind of disease profile and exposure profile,” Eggen says. “It’s not good news for Bayer.”
Other companies might change their legal strategy after such a loss, but Eggens says a large, multi-national corporation like Bayer can take the hit. “It seems as though they’re dug in on fighting these cases, and fighting them on a very individual basis … like the tobacco companies did a decade or so ago,” Eggen says. In this case, lawyers for Bayer argued that Hardeman’s hepatitis C caused his cancer, not Roundup.
The Case Won’t Set a Precedent, But It Could Be a Turning Point
While new plaintiffs might be able to bring up this decision in future cases, Eggen says this move is unlikely, since judges have a lot of discretion. However, it could mark the beginning of a trend. “When we move on to other cases with other juries, it may bode well for other plaintiffs on the general causation,” she says, meaning whether or not Roundup is capable of causing cancer.
That doesn’t mean that everyone suing Bayer over Roundup will secure the same verdict. Eggen explains that these kinds of civil cases require a plaintiff to prove two things: The substance is capable of causing the cancer that the plaintiff has, and the substance caused this particular person’s cancer. The second point could be more difficult, she says, since future plaintiffs will have different personal histories and lengths of exposure—all factors that the jury would consider. However, if the jury decides in favor of the plaintiff on the issue of corporate negligence in the second part of the case, that decision could have even broader consequences.
It’s Not Settled Science
San Francisco’s federal jury did find that Roundup caused cancer—or as is the standard in civil cases, that it was “more likely than not” a substantial factor. Between regulators, though, there’s still disagreement on Roundup: The World Health Organization declared in 2015 that its active ingredient, glyphosate, could probably cause cancer in humans; other agencies, including the United States Environmental Protection Agency, have denied this link, finding “no other meaningful risks to human health when the product is used according to the pesticide label.”
Eggen says that, in a case like this one, toxicologists or chemists who are brought in as experts must base their testimony on studies. Often, these studies (and scientists) don’t agree. “If anything, there seems to be even less certainty [in this case],” Eggen says. “The studies are all sort of problematic.” Some have found associations between cancer and glyphosate, and others haven’t. Court documents reported by the New York Times show Monsanto hired academics to “ghostwrite” favorable studies, and that the EPA may have had doubts about its safety assessment. On both sides, scientists have acknowledged the need for more research on the issue.
But even if the science itself isn’t settled, the issue is for Hardeman: This particular jury delivered the verdict that Roundup caused cancer, even after the judge limited the evidence allowed.
