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A jury continues to hear testimony in the first federal “bellwether” trial over the cancer risk from spraying Roundup, with the plaintiff testifying this week that the glyphosate-based weed killer regularly got on his skin during decades of use before he was diagnosed with non-Hodgkins lymphoma, and an expert indicating that is a substantial cause of cancer among those frequently exposed to the herbicide.
A lawsuit filed by Edwin Hardeman was selected by the U.S. District judge presiding over the federal Roundup litigation as the first in a series of “bellwether” cases to go to trial, which are designed to help the parties gauge how juries may respond to certain evidence and testimony that may be repeated throughout the other lawsuits brought by former users of the weed killer diagnosed with non-Hodgkins lymphoma.
In an unusual move, the trial is split into two phase, with the jury first determining whether the plaintiff present sufficient evidence to establish Roundup caused his cancer diagnosis, before moving onto a second phase, where the jury will consider whether Monsanto should be required to pay damages to the plaintiff for withholding safety warnings and instructions from consumers.
The structure of the trial has resulted in orders limiting the evidence the jury will hear in the first phase, and wrangling between the judge and plaintiffs attorneys over where the line is drawn.
To start the second week of trial, the jury heard testimony from the plaintiff, Edwin Hardeman, who indicated that spray from Roundup got on his skin regularly during nearly 30 years of exposure to the weedkiller around his home. Hardeman, 70, said he typically sprayed for several hours a day, and that the containers often leaked the weed killer on his skin, and that the wind frequently blew Roundup back onto his body and caused him to breathe it in. He stopped using Roundup in 2012, and was diagnosed with non-Hodgkin’s lymphoma in 2016.
Following about an hour of direct examination, attorneys for Monsanto declined to question Hardeman during the sixth day of trial on Tuesday.
The rest of the day involved testimony from one of the plaintiff’s experts, Dr. Dennis Weisenburger, a pathologist who testified about his research on glyphosate, the active ingredient in Roundup, and indicated that the chemical can penetrate the cells of the skin and get into the blood, indicating that it is his medical opinion that glyphosate is a substantial cause of cancer among individuals regularly spraying Roundup.
Monsanto is expected to begin presenting its case later this week, and the jury will consider what damages to award during the second phase if the plaintiffs prevail on the preliminary question of causation.
The trial is being closely watched by other plaintiffs, lawyers and investors, as Bayer’s Monsanto unit faces more than 10,000 other Roundup lawsuits pending in courts nationwide, each involving nearly identical allegations.
While the Hardeman case is the first to go before a federal trial, a California state-court jury awarded $289 million last year to a former school groundskeeper diagnosed with non-Hodgkins lymphoma after regularly spraying Roundup for years. The initial jury award included $39 million in compensatory damages and $250 million in punitive damages, which were designed to punish Monsanto for recklessly disregarding the safety of consumers.
While the trial judge issued a reduced the amount of the punitive damages during post-trial motions, a final judgment of $78.5 million was entered against the manufacturer, sending a strong signal to Bayer and investors about how other juries may respond to similar evidence that suggests Monsanto has covered up the Roundup cancer risk for decades.
Following trial in the Hardeman case, and at least two other federal bellwether claims are expected to go before juries this year, as well as a number of other state court trial dates set throughout 2019, unless Bayer negotiates Roundup settlements or otherwise resolves the litigation.