In the first decision of its kind, a California jury last Friday determined that the agricultural chemicals company Monsanto is liable for causing a man’s Non-Hodgkin Lymphoma (NHL). The jury ordered Monsanto (recently acquired by Bayer) to pay the plaintiff DeWayne Johnson $289 million dollars for his injuries: $39 million in compensatory damages and $250 million in punitive damages. The eye-popping award follows from the jury’s belief that Mr. Johnson’s chronic and accidental exposure to glyphosate as a school groundskeeper over a two-year period caused his NHL and that Monsanto knew about the possible risk of cancer, failed to warn him of the risk, and sought to suppress scientific evidence linking its widely-used pesticide with cancer.
Praedicat has been tracking the science around glyphosate and a range of harms, including NHL, since we first formed as a company in 2012. According to our model, aggregate scientific support for the hypothesis that glyphosate causes blood cancers like NHL peaked in 2014, a year before the International Agency for Research on Cancer (IARC) declared glyphosate to be probably carcinogenic in humans (2A) and about two years before Mr. Johnson filed his lawsuit. Since 2014, there have been a number of negative human studies published, including ongoing evaluations of some 54,000 pesticide applicators in the Agricultural Health Study that have found no statistically significant correlation between glyphosate exposure and cancer.
Even in 2014, though, the scientific community was largely surprised by IARC’s determination given the mixed evidence published to date in both animals and humans. IARC’s mission is to answer the question of whether an agent is capable of causing cancer without regard to exposure. Such agents are referred to as cancer hazards. By contrast, an evaluation of cancer risk — evaluations that IARC explicitly does not conduct — estimates whether real-world exposures elevate the risk of cancer. While much of the scientific community doubts that glyphosate is even a probable cancer hazard, scientific consensus is even more aligned against the likelihood that glyphosate poses a meaningful cancer risk for those exposed under normal circumstances.
So how are we to make sense of the jury’s decision last Friday? One possibility is that the distinction between hazard and risk gets lost in the heat of competing arguments about the science; perhaps all the more so when the defendant is accused of waging a campaign against science itself and unduly influencing regulators like the Environmental Protection Agency and European Food Safety Authority, both of whom have determined glyphosate does not pose a cancer risk in humans, either for those applying glyphosate according to regulatory guidelines or for those consuming trace quantities in food.
It is possible too that IARC’s decision to classify glyphosate as a probable cancer hazard made it more likely that the judge would admit expert testimony to this effect even in the presence of murky science supporting glyphosate as a cancer risk. On appeal, though, the courts might ultimately find the hazard-focused testimony insufficient to prove causation. In this scenario, Monsanto and Bayer will incur significant defense costs while paying no indemnity. How regulatory actions can lead to “defense cost only” litigation is something that Praedicat is working to incorporate in its next generation litigation dynamics model.
All attention now turns to the federal court overseeing multidistrict litigation (MDL) in hundreds of claims against Monsanto alleging glyphosate exposure causes NHL. Plaintiffs in that case recently survived a Daubert hearing as to the admissibility of expert testimony on the effects of glyphosate on cancer. The court ruled that while expert testimony on behalf of plaintiffs’ argument that there is a causal link between glyphosate exposure and NHL is “rather weak” and “shaky” it is nonetheless admissible. The MDL court warned, however, that plaintiffs’ expert testimony must go beyond the IARC determination of hazard and address whether glyphosate exposure meaningfully increases the risk of NHL. The MDL court further added “Given how close the question is at the general causation phase, the plaintiffs appear to face a daunting challenge at the next phase.”
Monsanto has already announced that they will appeal this stunning jury decision. Under similar circumstances, Johnson & Johnson was successful in overturning a $417 million California jury decision in October of last year. Comparably “weak” and “shaky” scientific evidence linking talcum powder use and ovarian cancer caused the judge in that case to reject the jury’s conclusion that the evidence presented in court was sufficient to prove causation. That was a bold move by a trial judge, but one that we could see repeated here where the jury seems also to have been persuaded by expert testimony that likely spoke more to glyphosate as a hazard than as a risk.