Monsanto Roundup trial win overturned by Oregon court
The court found that
the trial judge in the case improperly barred key evidence about the US
Environmental Protection Agency (EPA) from being presented to the jury, which
could have led the jury to find in favor of the plaintiff.
And, notably, the court rejected arguments by the company
that claims about the dangers of its products should be barred because those
products carry the EPA’s stamp of approval.
Other courts have similarly rejected so-called
“preemption” arguments by Bayer, which bought Monsanto in 2018. But after
failing to get court backing, Bayer has been pushing state and
federal lawmakers to give it and other pesticide makers the
protection the courts have rejected.
A proposed measure is being considered by lawmakers for
inclusion in the US Farm Bill. Monsanto unsuccessfully argued to the appeals
court that the case never should have even gone to a jury because the claims
should have been preempted.
In a statement issued following the ruling, Bayer said it
disagreed with the court’s ruling and was considering its legal options. “We
remain confident that Roundup was not responsible for the alleged injuries in
this case based on the overwhelming weight of scientific research and
assessments by leading health regulators and scientists worldwide, including
both the EPA and the EU, that support the safety of glyphosate-based products,”
the company said in the statement. Bayer said it has “achieved favorable
outcomes in 13 of the last 19 trials, including the last four, and has resolved
the overwhelming majority of claims in this litigation.
Attorney Andrew Kirkendall, who represented the plaintiff
in the case, said he welcomed the court’s decision and was eager to retry the
case with the evidence about the EPA included.
“Not harmless”
The testimony that the trial judge refused to allow was
to have come from Charles Benbrook, a former research professor who served at
one time as executive director of the National Academy of Sciences board on
agriculture. Benbrook has authored papers critical of the EPA’s handling of
glyphosate herbicides, noting that the agency has given little weight to
independent research regarding the actual products sold into the marketplace
and used by millions of people around the world. Instead, the EPA has mostly
relied on studies paid for by Monsanto and other companies selling glyphosate
herbicides that found no cancer concerns.
“There is important new science to share with the jury
that clarifies why and how Roundup can cause cancer,” Benbrook said this week
after learning of the court ruling.
Excluding Benbrook’s testimony was an error that “was not
harmless,” the appellate court said in its decision.
“Monsanto defended itself by claiming it satisfied the
EPA regulations, and Dr. Benbrook’s testimony would have helped the jury
understand the applicable regulatory framework—what the EPA does and does not
do, what manufacturers like Monsanto are obligated to do, etc. Because Dr.
Benbrook was excluded, no witness for Plaintiff addressed the regulatory
framework. Such testimony would have been relevant to Plaintiff’s theory of the
case and qualitatively different from the other evidence presented,” the Oregon
appellate court found.
Bayer said in its post-ruling statement that it continues
to believe Benbrook’s exclusion was was proper. Bayer “does not believe he is
qualified to testify about scientific issues or the EPA’s regulatory process,”
the company said.
The EPA’s handling of Monsanto and its glyphosate
products has been the subject of much scrutiny in recent years, as internal
documents have revealed many questionable interactions and secretive dealings
that critics say undermine the credibility of the agency’s oversight.
In 2022, a federal court found that
the EPA had failed to follow established guidelines for determining cancer
risk, ignored important studies, and discounted expert advice from a scientific
advisory panel in its oversight of glyphosate.
Preemption issue
The case at the heart of the new ruling is but one
of more than 100,000 brought
in US courts by people who allege their use of Monsanto herbicides made with a
chemical called glyphosate caused them to develop non-Hodgkin lymphoma (NHL).
The litigation started after the International Agency for Research on Cancer (IARC) classified
glyphosate as a probable human carcinogen, finding “strong” evidence of
genotoxicity and a “statistically significant association between non-Hodgkin
lymphoma and exposure to glyphosate”.
Over the last few years, Bayer has either been ordered by
juries – or agreed in settlements – to pay out billions of dollars in damages
to many of the plaintiffs.
But the company has also won several cases at trial,
including the Oregon case that
is the subject of this week’s ruling. The plaintiff in that case is Oregon
resident Larry Johnson, who started using glyphosate-based Roundup in the 1990s
to kill weeds around his home. Johnson continued using Roundup for more than 20
years until being diagnosed with NHL in 2019, according to the lawsuit.
Johnson alleged, as have other plaintiffs in the ongoing
Roundup litigation, that Monsanto long knew of scientific studies connecting
its glyphosate-based herbicides to cancer and should have warned customers
about the risks. The lawsuits claim that Monsanto engaged in a number of
fraudulent activities to conceal evidence of the cancer connection, including
ghostwriting studies to perpetuate its claims that the products are safe and
engaging in secret dealings with the EPA to protect its ability to sell glyphosate-based
products.
Monsanto cites the EPA’s determination that glyphosate
is “not likely” to cause cancer in
its defense and asserts that the Federal Insecticide,
Fungicide, and Rodenticide Act (FIFRA) preempts state-law claims because the
EPA has approved the labels on Roundup and other glyphosate products label
without the need for a cancer warning.
But the appeals court became the latest of several courts
to rebuff that argument by Monsanto.
Monsanto “relies on the EPA’s approval of the Roundup
label and asserts that that approval – which does not include a cancer warning
– preempts plaintiff’s claims,” the court states in its ruling. “But, in our
view… the EPA’s approval of a label under FIFRA does not preempt state law
claims.” FIFRA specifically allows for states to have a role in pesticide
regulation for products sold within their boundaries, unless the use of the
product is prohibited by FIFRA, the court said.
The court noted that along with banning Benbrook’s
testimony, the trial judge – at Monsanto’s request – specifically instructed
the jury in the case to take EPA oversight into account. The court ordered that
the trial win for Monsanto was “reversed and remanded.”
A new trial is not automatically triggered by the ruling
– Monsanto owner Bayer can ask for reconsideration by the appellate court and
could seek a review by the Oregon Supreme Court. But Kirkendall said he was
confident his client would get another day in court.
“Once we get past those hurdles, then Mr. Johnson gets a
new trial,” he said.
