The federal judge overseeing the federal Monsanto Roundup cancer multidistrict litigation (MDL) denied Monsanto’s motion for summary judgment on non-causation grounds, finding that the plaintiffs’ claims in three bellwether cases are backed by sufficient evidence and are not preempted.
Hundreds of Roundup cancer cases are pending in the Monsanto Roundup MDL, all alleging that Monsanto’s glyphosate-based herbicides caused plaintiffs to develop non-Hodgkin’s lymphoma (NHL) and that Monsanto failed to warn consumers of the dangerous health risks.
Last year, U.S. District Court Judge Vince Chhabria decided on three bellwether cases from the MDL to proceed to trial. The three cases, which will set the stage for future litigation, include:
Stevick v. Monsanto Co., et al., 3:16-cv-02341
Gebeyehou v. Monsanto Co., et al., 3:16-cv-05813-VC
In his order issued today, Judge Chhabria shot down Monsanto’s arguments that the three bellwether plaintiffs’ claims are preempted, and that the evidence is not sufficient to support a jury verdict for the plaintiffs on their failure-to-warn claims. Judge Chhabria also denied Monsanto’s contention that the plaintiffs’ evidence is not sufficient to support a punitive damages award.
According to Judge Chhabria’s order, “there is strong evidence from which a jury could conclude that Monsanto does not particularly care whether its product is in fact giving people cancer, focusing instead on manipulating public opinion and undermining anyone who raises genuine and legitimate concerns about the issue.”
Attorneys for the plaintiffs applauded today’s order.
“Judge Chhabria got it right on this one,” said Baum Hedlund Aristei & Goldman attorney, R. Brent Wisner, who is part of the trial team representing Edwin Hardeman.
“Monsanto has lost this preemption argument almost a dozen times now. Courts around the country have routinely refused to apply drug preemption law to pesticides, and for good reason. The regulatory and statutory frameworks make it clear that states like California have an absolute right to ban or restrict pesticides, whether through direct regulation or personal injury lawsuits.”
Roundup Cancer Lawsuits Are Not Preempted by Federal or State Laws
In its motion for summary judgment on non-causation grounds, Monsanto argued that the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) preempts the plaintiffs’ claims that Monsanto did not provide adequate safety warnings on its glyphosate-based herbicides. Judge Chhabria’s order rejected Monsanto’s argument, noting that FIFRA does allow for states to make their own pesticide labeling rules, which is what California did for glyphosate.
Judge Chhabria also rejected Monsanto’s assertion that the plaintiffs’ state law warning and design defect claims are preempted because the company is not allowed to change its label or product formulation without the U.S. Environmental Protection Agency’s (EPA) approval. Judge Chhabria disagreed saying, “if California can stop Monsanto from selling Roundup entirely, surely it can impose state-law duties that might require Monsanto to seek EPA approval before selling an altered version of Roundup in California.”
Federal Judge States: Monsanto Has Not Taken a Responsible, Objective Approach to the Safety of its Products
Monsanto also argued that the plaintiffs failed to present “competent evidence” that any risk from glyphosate was “known or knowable” by the scientific community at the time the plaintiffs used the herbicide. To make this claim, Monsanto relied almost entirely on the epidemiological data in its motion for summary judgment.
But the epidemiology is “far from undisputed,” according to Judge Chhabria, who noted in his order that data from DeRoos (2003) “supports a conclusion that glyphosate is a risk factor for NHL.” Monsanto’s motion for summary judgment made no mention of the DeRoos paper. “Monsanto cannot prevail on a motion for summary judgment by simply ignoring large swaths of evidence,” Judge Chhabria wrote.
As to the issue of whether there is evidence that the cancer risks associated with glyphosate were knowable at the time that plaintiffs used Roundup, Judge Chhabria stated that the plaintiffs have submitted “a great deal of evidence that Monsanto has not taken a responsible, objective approach to the safety of its product.” According to the plaintiffs’ opposition to Monsanto’s motion for summary judgment, the risks associated with exposure to Roundup were known or knowable to the scientific community as far back as the 1980s.
If a jury should find that Roundup is capable of causing NHL, there is sufficient evidence for the plaintiffs to argue that Monsanto could have known of the health risks if the company chose to investigate the issue, per the judge’s order.
Plaintiff in First Federal Roundup Cancer Trial Used Herbicide for Nearly 30 Years
Judge Chhabria’s order comes only days after Edwin Hardeman testified before the jury in the first federal Roundup case to proceed to trial. On Tuesday, Hardeman told the jury that he sprayed Roundup every month for nearly 30 years, occasionally getting the chemical on his skin.
Using Roundup was a regular part of his property maintenance, Hardeman said, as he demonstrated how he used a two-gallon sprayer around his 56-acre property in Santa Rosa, California.
Hardeman stopped using Roundup in 2012. On Christmas Day of 2015, he discovered a swollen lymph node on his neck, which was diagnosed the following year as NHL.
According to Dr. Dennis Weisenburger, a noted pathologist who testified before the jury, Mr. Hardeman’s cancer was “more likely than not” caused by exposure to Roundup.
If the jury is unanimous in Mr. Hardeman’s favor, then the Hardeman trial is expected to last another two or three weeks.