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May 28 2019

Rounding Up the Science Behind the Roundup Nuisance Litigation

by Jennifer C. Braceras

Despite substantial evidence that Roundup weed killer is safe and non-carcinogenic if used properly, a federal judge last week appointed attorney Kenneth Feinberg to oversee court-mandated settlement talks between Bayer AG (the company that owns Roundup's producer, Monsanto) and plaintiffs who claim that the product caused their non-Hodgkin's lymphoma. 

As Dan Fisher explains in Legalnewsline.com,

Feinberg is the big gun in mass settlements, having overseen billions of dollars in payouts over Agent Orange, the September 11th terrorist attacks, diesel Volkswagens and the BP Deepwater Horizon oil spill. If anybody can convince Bayer to start writing checks, it’s Feinberg.

But should they?

Almost all of the world’s leading chemical regulatory bodies have determined that glyphosate, the active ingredient in Roundup and one of the most commonly used herbicides, is not a human carcinogen. In an article published in The Conversation entitled, Stop Worrying and Trust the Evidence, Professor Ian Musgrave, a senior lecturer in Pharmacology at the University of Adelaide, notes that:

The European Food Safety Authority looked at 21 human studies and found no evidence for an association between cancer and glyphosate use. . . [The] Agricultural Health Study found no association between cancer and glyphosate in humans. And the 2016 review by Australia’s regulator concluded glyphosate was safe if used as directed.

In addition, the U.S. Environmental Protection Agency has twice asserted that glyphosate poses no public health risk. 

Only one agency, the International Agency for Research on Cancer has found, based on animal (not human) studies, that glyphosate may pose some degree of risk. According to Reuters, however, IARC scientists deliberately removed from the report studies that found glyphosate to be noncarcinogenic. 

Studies conducted after the IARC released its report have reaffirmed glyphosate’s safety for humans.

Nevertheless, thousands of state and federal lawsuits blaming Roundup for plaintiffs’ non-Hodgkin’s lymphoma are now pending in U.S. courts. In three recent cases, runaway juries found Bayer liable to the tune of $289 million, $80 million and $2 billion, respectively.

According to Fisher, 

[t]he Roundup verdicts so far illustrate a growing trend in mass tort litigation. After decades of experience handling such claims, especially over asbestos, plaintiff lawyers have developed the expertise to convince jurors that even if the scientific proof is disputed (and possibly lacking), jurors should award damages for what is, effectively, bad corporate behavior.

Professor David Bernstein, of George Mason University’s Antonin Scalia Law School, concurs. Bernstein argues that when trial attorneys juxtapose sympathetic plaintiffs with unsympathetic corporations — particularly those that lobbied for approval of their product — juries tend to assume that the corporation has something to hide. Juries then implicitly shift the burden of proof to the defendant, even though it is a plaintiff’s burden to prove that the product causes harm and that it caused the plaintiff’s specific injury.

Improper burden shifting by juries combined with improper admission by judges of speculative expert testimony has proved disastrous for Bayer. In the most recent case, for example, the trial judge allowed an expert to testify that Roundup caused the plaintiff’s non-Hodgkin’s lymphoma based solely on process of elimination -- since none of the known causes of non-Hodgkin’s lymphoma were present, then Roundup must be the culprit!

“This,” Bernstein writes, “isn't science, it's witchcraft, and the testimony should have been excluded entirely under [California law], which bars courts from admitting ‘speculative’ expert testimony.” 

Although Bayer is appealing the verdicts, the company’s stock has fallen dramatically as a result of these cases. (In mid-May Bayer’s stock price fell to $15.59 per share, nearly half its value prior to acquiring Monsanto.) The Wall Street Journal reports that some investors would like to see Bayer settle “to get clarity over the future of the company.” 

Bayer, of course, isn’t the first major company to be burned by runaway juries and junk science. But settling these cases will ensure they won’t be the last. 





Independent Women's Forum is an educational 501(c)(3) dedicated to developing and advancing policies that aren’t just well intended, but actually enhance people’s freedom, choices, and opportunities. IWF is the sister organization of the Independent Women’s Voice.​
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