Judicial limits on glyphosate and climate ‘jackpot justice’ litigation

It was an important victory amid numerous lawsuits against the company for allegedly knowing this chemical is carcinogenic but failing to warn consumers. In fact, by 2020, mass tort litigation firms had lined up over 22,000 “corporate victims,” and San Francisco area juries had awarded several plaintiffs $78 million to $1 billion per person in compensatory and punitive damages!

One firm’s website even claimed the requisite exposure to Roundup could involve simply “living near a farm where the potentially dangerous herbicide is used.” The victim could thereby be afflicted with lymphoma, non-Hodgkin lymphoma, Parkinson disease, multiple sclerosis, lung, brain or thyroid cancer, heart disease or six other diseases. This is the warzone Monsanto had been dragged into.

The awards were subsequently reduced to “mere” tens of millions. However, faced with seemingly endless litigation, clever lawyers, and sympathetic jurors with limited grasp of science or medicine, in 2020 Bayer-Monsanto paid nearly $11 billion to a half-dozen law firms to settle most of the lawsuits.

It’s hardly surprising Monsanto settled and took glyphosate out of its US home lawn and garden Roundup formulation. But firms and plaintiffs not part of the settlement are still suing.

Peter and Cathy Engilis were among them. Unfortunately for them, their lawyers relied on the testimony of a board-certified oncologist who reviewed various possible causes of Mr. Engilis’s cancer, ruled out obesity as a contributing factor, and concluded that glyphosate was the most likely cause.

His testimony was the only evidence plaintiffs presented. The district court excluded it as unreliable, since the expert had failed to employ a scientific analysis to rule out obesity as a cause.

The Ninth Circuit agreed, ruling that an expert’s conclusions or opinions are not enough. Under Federal Rule of Evidence 72, experts must provide scientifically sound reasons for ruling out alternative causes and do so by a preponderance of actual evidence. Conclusory assertions are insufficient, unless supported by facts, data or studies, not merely knowledge or experience.

The US Supreme Court underscored these points in Daubert v. Merrell Dow Pharmaceuticals. Plaintiffs must prove the scientific evidence presented is relevant and reliable, the Court said. It must have been tested and peer-reviewed against prevailing standards; be accepted in the applicable scientific community; and show more than just circumstantial links between an injury and alleged cause.

Experts must also show how they reached their conclusions and point to objective sources that demonstrate they followed scientific methods practiced by at least a recognized minority in their field.

This is basic common sense and something law students learn in Evidence 101. As I argued in a medical journal article, it is especially vital in glyphosate litigation – and other complex, emotionalized cases, including lawsuits alleging damages from climate and weather events supposedly caused by fossil fuel production, refining, or use in transportation or manufacturing.

The jackpot justice Roundup cases rely on so much speculative “evidence” that they should all be dismissed, based on Daubert, Engilis, common sense, and the endless list of carcinogens we encounter during our lifetimes.

Glyphosate was introduced in 1974, is licensed in 130 countries, and is used every year by millions of homeowners, gardeners and farmers to control weeds. Studies and reviews by the US Environmental Protection Agency, European Food Safety Authority, UN Food and Agriculture Organization, Health Canada and dozens of other experts have found it safe and non-carcinogenic.

The US Agricultural Health Study has followed some 52,000 licensed private pesticide applicators (mostly farmers) and more than 32,000 of their spouses for nearly three decades. More than 80% of these test subjects used glyphosate. The study has found no glyphosate-cancer link.

Only one agency, the France-based International Agency for Cancer Research, says otherwise. In 2015, IARC ruled that glyphosate is a “probable” human carcinogen – based primarily on two mice studies, which multiple investigators said manipulated data while ignoring studies that contradicted IARC’s preferred conclusion.

Instead of doing research, IARC classifies chemicals as definitely, probably or possibly carcinogenic based on reviews of other organizations’ research – and by applying “exposure” or “hazard” tests that many epidemiologists view as antiquated and of limited value. Those tests use laboratory animals to determine whether a chemical might cause cancer, even if only at extremely high levels that no animal or human would be exposed to in the real world.

Indeed, epidemiologists and toxicity experts say some chemicals may cause cancer or other serious health problems at extremely high doses but be harmless at levels encountered in our daily lives. Others may be harmful at high doses but beneficial or essential at low or very low doses.

IARC’s Group 1 carcinogens (“definitely carcinogenic”) include 120 chemicals, substances and industrial processes: plutonium, sunlight, aflatoxin, asbestos, cadmium, tobacco, welding, processed meats and more.

Group 2A (“probably carcinogenic”) lists 80+ chemicals, substances and processes, including glyphosate, dieldrin, malathion, acetaldehyde in bread, anabolic steroids, emissions from high-temperature food frying, red meat, drinking “very hot” beverages and working as a hairdresser.

Group 2B “possibly carcinogenic” materials and processes show “limited evidence” of carcinogenicity but includes diesel fuel, pickled vegetables, carpentry work, caffeic acid in coffee, nutritious foods like apples and broccoli, and over 300 other substances and occupations.

IARC carcinogen claims seem to be such outliers, so beneath scientific norms, so tainted by conflicts of interest and misconduct, so unrelated to actual risks, so deceptive and even fraudulent – that they should never be admitted as evidence in any glyphosate trial. But from a jackpot justice plaintiff or lawyer perspective, they are central to nearly every case.

Roundup carcinogen allegations should also be excluded from evidence and testimony because it is impossible to differentiate alleged effects of glyphosate from those of countless other chemicals, substances, occupations and industrial processes plaintiffs may have been exposed to or engaged in over the course of their lives. The lists presented above represent a tiny sample.

The same principles apply to climate lawsuits in state and international courts.

The lawsuits involve computer models with zero predictive capability; conclusory assertions devoid of actual supportive evidence; and refusal to recognize Earth’s tumultuous climate history, powerful natural forces that caused momentous climate changes long before the fossil fuel era, written records and data over the past 200 years showing no unprecedented changes or trends in climate or weather, and an inability to separate natural from alleged human causes.

Evidence Rule 72, the Daubert and Engilis decisions, and basic scientific principles demand summary judgments in favor of fossil fuel producers every single time.