SAN FRANCISCO — Judge Vince Chhabria of the U.S. District Court for the Northern District of California entered a pretrial order in the Roundup litigation last month, asking the parties to submit briefs addressing the flaws or biases within the Environmental Protection Agency and the International Agency for Research on Cancer.
The parties differed as to how they felt the court should view the causation issues in the litigation.
In October 2016, a judge ordered the consolidation of the 37 lawsuits filed across the country claiming that use of the weed killer known as Roundup caused cancer. The cases are pending in California’s Northern District.
The allegations in all the claims are that Monsanto knew that Roundup, which contains a chemical called glyphosate, causes non-Hodgkins lymphoma, or NHL. Monsanto failed to warn consumers of that risk.
Both sides submitted briefs. The plaintiff’s brief stated at the outset that the IARC and the EPA function differently, and that the “...IARC performs a 'hazard assessment' — can glyphosate and/or Roundup cause NHL — while the EPA makes a 'risk assessment'— at what level is there a risk of cancer and is that an acceptable risk. In addition, the IARC considers studies of both glyphosate and the formulated product while the EPA considers only glyphosate. In a legal sense, the IARC performs a general causation assessment.”
The plaintiffs’ brief goes on to state that the IARC is a respected body and its monographs are “generally recognized as authoritative.” However, they claim that the EPA is problematic “... because the EPA does not actually review the carcinogenicity of the Roundup formulation and because there are substantial flaws and biases in its procedures and methods to determine whether glyphosate can cause non-Hodgkin lymphoma ('NHL'), EPA’s ad hoc conclusions are neither reliable nor relevant to support issues of general causation.”
The defendants’ brief says neither the EPA nor the IARC assessments address causation and concludes “... any alleged flaws or biases in the assessments conducted by EPA and IARC are not relevant to the general causation issue before this court.” The defendants argued that the standard of proof as set out in the Daubert case “... requires a different evaluation of the scientific evidence than is conducted by the IARC and the EPA.”
Deborah Sivas, a professor of environmental law and director of the Stanford Environmental Law Clinic, is familiar with the briefs filed by both sides in the litigation.
“The defendants are saying there are these two competing methodologies, but the plaintiffs in a civil lawsuit have the burden of showing causation, and neither of these reports are going to make your case for you,” she told the Northern California Record. “We don’t think you can really rely on the reports. You can’t say our product caused your clients harm.”
“The plaintiffs are saying that IARC methodology is the sound methodology and there are problems with the EPA one,” Sivas said. “We are entitled under the Daubert standard to our experts. We’re entitled to rely on the literature and these two reports are part of the literature that supports what our experts are going to say.”
Sivas feels that the judge, in asking for these briefs, is trying to narrow the case. She also thinks Monsanto wants some of the exhibits kept sealed from public viewing because “Monsanto is wanting some documents to not be disclosed to the public because they think they are prejudicial to them. These documents also have confidential business information. I don’t think that they’re asserting any kind of privilege, like attorney/client privilege. The plaintiffs can see them.”
Sivas feels the cases were rightfully consolidated by the Multi-District Litigation Panel because “[t]hey have the same basic issue at their core: Did Roundup cause non-Hodgkins lymphoma?”