Judge rules that evidence must be focused on science ahead of weedkiller trial

By John Breslin | Jan 14, 2019

SAN FRANCISCO - A federal judge has barred plaintiff lawyers in a bellwether case alleging a Monsanto weed killer causes cancer from introducing evidence in the initial trial that the company manipulated evidence, intimidated scientists and regulators.

As potential jurors are identified ahead of the trial, which is due to begin Feb. 25 at U.S. District Court for the Northern District of California, District Judge Vince Chhabria recently entered an order that likely will hurt the plaintiff's case.

Plaintiff Edward Hardeman accuses Monsanto, which was acquired by Bayer in June, of selling Roundup weedkiller that he claims caused his non-Hodgkin's Lymphoma.

The core of his argument is that the glyphosate contained in the weedkiller is carcinogenic.

Chhabria has decided to split it in to two parts, and will only allow scientific evidence that might prove a link between glyphosate-based weedkiller and the cancer.

He denied a motion by plaintiff attorney, R. Brent Wisner, asking him to review his earlier decision to bar documentation that could reveal Monsansto tried to manipulate public opinion when marketing Roundup weed killer.

Wisner described Chhabria's initial ruling as "unfair" because the scientific evidence is closely linked to Monsanto's alleged wrong doing.

"The science doesn’t exist in some isolated, untouched world,” Wisner told the court, according to a Reuters report. He argued that Monsanto’s alleged attempts to "manipulate, misrepresent and intimidate scientists" should be included.

He further argued that this evidence was key to a California state court jury award of $289 million to a plaintiff in a case that involved similar claims. Judgment was reduced to $78 million on appeal.

Chhabria was not persuaded, finding that any trial has to focus on the scientific evidence, and expressed concern that the plaintiff lawyers will "mis-characterize" statements made by Monsanto employees.

The federal judge is presiding over 625 cases out of close of 10,000 nationwide. The Hardeman action is the first of three bellwether cases that will likely deliver a road map for the others on his docket.

Chhabria said those claims will only be allowed to be aired if the jury finds that the glyphosate-based product caused the cancer. Damage assessment would follow finding of fault.

Wisner did not respond to a request for comment from the Northern California Record.

Charla Marie Lord, senior communications manager with Bayer Science Crop, now the parent company of Monsanto following a $60 billion merger, provided the following statement:

“The Court’s decision to keep the focus of the trial on the extensive science relevant to human health is encouraging.

"Bayer is confident that this science demonstrates our glyphosate-based herbicides are safe for use and believes it will ultimately be determinative in this litigation.

"Glyphosate-based herbicides have been used safely and successfully for over four decades worldwide and are a valuable tool to help farmers deliver crops to markets and practice sustainable farming by reducing soil tillage, soil erosion and carbon emissions."

Lord cited what she described as an "extensive body of research" that reveals the products are safe. She said that more than 800 studies were submitted to Environmental Protection Agency, and to European and other regulators.

These confirm "that these products are safe when used as directed," she added.

"Notably, the largest and most recent epidemiologic study – the 2018 independent National Cancer Institute long-term study that followed over 50,000 pesticide applicators and was published after the IARC monograph – found no association between glyphosate-based herbicides and cancer," she stated.

"Additionally, EPA’s 2017 post-IARC cancer risk assessment examined more than 100 studies the agency considered relevant and concluded that glyphosate is ‘not likely to be carcinogenic to humans,’ its most favorable rating."

The International Agency for Research on Cancer (IARC), an arm of the World Health Organization, found that glyphosate is "probably carcinogenic," but did not specify to what extent or identify any particular type.

In earlier remarks in court, Chhabria said the testimony of two plaintiffs' experts, Dr. Beate Ritz and Dr. Christopher Portier, was "shaky" and went beyond the findings of the National Cancer Institute and even the IARC, whose conclusions were criticized by Monsanto.

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