Roundup Cancer Claim Goes Before Federal Jury, With Restrictions on Evidence in First Phase

Jury selection is set to begin today in a California federal court, involving the first bellwether trial over claims that Roundup exposure causes non-Hodgkin’s lymphoma and other cancers.

The trial will involve an unorthodox format, with the U.S. District Judge presiding over the litigation previously deciding to split the case into two separate phases, with the jury first considering whether the weedkiller caused the plaintiff’s cancer, before determining whether Monsanto should be held liable for withholding safety warnings and instructions from consumers.

As a result, the scope of evidence that will be permitted in the first phase will be restricted, keeping out much of the inflammatory evidence that suggests Monsanto has known their weedkiller increases the risk of cancer for decades, yet continued to market the product as safe.

In a pretrial order (PDF) issued on February 24, the court denied Monsanto’s last attempt to dismiss a series of three federal bellwether claims, indicating that plaintiff’s specific causation experts may testify at trial that exposure to glyphosate contained in Roundup caused their diagnosis of non-Hodgkins lymphoma.

As a result of the ruling, jury selection is expected to begin as scheduled today in San Francisco, involving a complaint (PDF) filed by Edward Hardeman, who claims that his 2015 diagnosis of large B-cell non-Hodgkins lymphoma was caused by Roundup used on his property to control poison oak and weeds since the 1980s.

The trial will be closely watched by other plaintiffs, lawyers and investors, as a sign for how juries may respond to similar evidence that may be presented in more than 10,000 other Roundup cancer claims pending in courts nationwide.

Each of the cases involve similar allegations that glyphosate and other ingredients contained in the widely used herbicide resulted in a diagnosis of non-Hodgkins lymphoma, which may have been avoided if Monsanto had provided adequate warnings and safety instructions for consumers.

The Haderman claim will be the second to go before a U.S. jury, after a California state-court lawsuit filed by a former school groundskeeper diagnosed with non-Hodgkins lymphoma went to trial over the summer. After initially resulting in a jury award of $289 million, including $39 million in compensatory damages and $250 million in punitive damages designed to punish Monsanto for recklessly disregarding the safety of consumers, the trial judge issued a reduced judgment of $78.5 million in that case, which was granted an expedited trial date in California state court since the plaintiff is dying.

Trial Split Into Two Phases

The federal court’s rare decision to split the next bellwether Roundup trial into multiple phases was aggressively opposed by plaintiffs, who argued that it would confuse the jury and limit the usefulness of any verdict in the claim.

While evidence presented during this first phase will be restricted, last month the judge presiding over the litigation rejected a request by Monsanto to exclude all evidence that the manufacturer tried to manipulate the science to make the weed killer appear safe, calling evidence and internal documents indicating the company had manipulated allegedly independent studies and regulators “super relevant” to the plaintiff’s claims that glyphosate causes non-Hodgkins lymphoma.

In another pretrial order (PDF) issued on February 18, the court did grant a number of motions in Limine filed by Monsanto, which will exclude a monograph by the International Agency for Research on Cancer (IARC), from the first phase of the trial.

The IARC, which is part of the World Health Organization, determined in March 2015 that glyphosate was a probable human carcinogen, linking it to an increased risk of non-Hodgkin’s lymphoma, and sparking much of the current litigation. The ruling bars the monograph by the respected cancer organization, describing it as a review of other studies, and not evidence itself. However, expert witnesses are still allowed to discuss and describe to the jury the IARC’s classification and meta-analysis.

The Judge also granted a request by Monsanto to exclude evidence that the company had ghostwritten some studies from the first phase of the trial, but indicated that evidence will be allowed in the second phase, if the jury finds that the plaintiff met the necessary burden of proof in the first phase.

Following this case and at least two other federal bellwether claims scheduled for trial this year, as well as a number of other state court trial dates set throughout 2019, if Monsanto fails to negotiate Roundup settlements or otherwise resolve the litigation, the company is likely to face an increasing number of individual trial dates in courts nationwide in the coming years.