Roundup Litigation Daubert Hearings Postponed Until March 2018

The U.S. District Judge presiding over all federal Roundup lawsuits has postponed hearings originally scheduled for this month, at which time the court was set to consider the admissibility of expert witness testimony on the link between the popular weedkiller and non-Hodgkins lymphoma.

The Daubert hearings were delayed until March 2018, following the publication of a study last month that questioned the link between Roundup exposure and cancer, to allow the parties to submit supplemental expert reports and conduct further depositions on the findings.

There are currently several hundred product liability lawsuits pending in the federal court system against Monsanto, each raising similar allegations that the manufacturer failed to warn farmers, landscapers and other consumers about the risks associated with exposure to Roundup and the weedkiller’s active ingredient glyphosate.

Given similar questions of fact and law raised in the Roundup litigation, the federal cases are all centralized before U.S. District Judge Vince Chhabria for coordinated discovery and pretrial proceedings in the Northern District of California.

As part of the coordinated management, Judge Chhabri previously bifurcated the proceedings, indicating that the Court will first address the general causation link between Roundup and cancer, before considering any case-specific issues about whether the weedkiller caused any individual plaintiff’s diagnosis.

The Court was scheduled to hold Daubert hearings this month, considering each side’s challenges to the admissibility of expert testimony, and the reliability of studies used by those experts to form the basis of their opinions. However, a new report was published in November in the Journal of the National Cancer Institute, which indicated that there was no statistically significant link between glyphosate contained in Roundup and the development of cancer.

Following publication of that study, defendants argued that the findings warranted a delay, suggesting that the report erodes the plaintiffs’ cases. Although plaintiffs argued that there was nothing new about the report, pointing out that the results have already been included in their general causation analysis, Judge Chhabri agreed to delay the Daubert hearings.

In a pretrial order (PDF) issued last month, Judge Chhabri agreed to postpone the hearings for about three months, allowing each side to file a supplemental brief regarding the findings, which is not to exceed 15 pages.

“The witness testimony will take place throughout the week of March 5, 2018, with argument from counsel to take place during the week of March 12 or the week of March 19,” the judge ordered. “Any expert who wishes to testify about the study published on November 9, 2017 in the Journal of the National Cancer Institute must submit a supplemental report by December 21, 2017, and must submit to a further deposition, not to exceed 2.5 hours, by January 23, 2018.”

The new report used data from the Agricultural Health Study, as a follow-up to findings published several years earlier, which came to the same conclusion. Therefore, plaintiffs note that they already have an expert witness who has pointed out various flaws in the study, and that it does not outweigh the evidence of a number of epidemiological reports presented by plaintiffs which do, in fact, show the likelihood of a causal link between Roundup exposure and cancer.

Roundup Litigation

The Roundup cancer litigation emerged after the World Health Organization’s International Agency for Research on Cancer (IARC) warned that glyphosate contained in the weedkiller is a probable carcinogen, which was issued in mid-2015.

Since then, a growing number of farmers, landscapers, agricultural workers and others regularly exposed to the herbicide have filed complaints alleging that Monsanto failed to adequately warn that Roundup exposure may increase the risk of cancer.

With Roundup cancer lawyers continuing to review and file new claims, it is ultimately expected that hundreds, if not thousands, of lawsuits will be added to the MDL over the coming months and years.

Following the conclusion of the general causation phase of the litigation, if the cases are not dismissed or Roundup settlements are not reached by the parties, it is expected that Judge Chhabri will establish a “bellwether” program, where a small group of representative cases will be prepared to go to trial.

While the outcome of these early cases will not be binding on other plaintiffs, they will be closely watched and monitored, as they may help the parties gauge how juries will respond to certain evidence and testimony that is likely to be repeated throughout the litigation.