June 18 marked a milestone for former California school groundskeeper DeWayne “Lee” Johnson and thousands of other cancer patients who are suing Monsanto over herbicide Roundup, claiming the popular weed killer caused them to develop non-Hodgkin’s lymphoma. That was the day that Johnson’s case, the first such lawsuit, finally went to trial.
Johnson allegedly applied hundreds of gallons of Roundup – at least 20 to 30 times per year during his career as a pest manager for the school district in Benicia, California. After being diagnosed with cancer in 2014, Johnson underwent chemotherapy, but his oncologist gave him just six months to live.
Believing that long-term exposure to Roundup led to his deadly cancer, Johnson filed a product liability lawsuit against Monsanto in 2016, although his doctors didn’t believe that Johnson would live long enough to testify in court. But because California has the authority to grant dying plaintiffs expedited trials, he is finally getting his chance.
The questions that the court in DeWayne Johnson v. Monsanto Company, et al will soon attempt to answer are these: Does Roundup cause cancer and if so, did Monsanto fail to warn consumers about the weed killer’s cancer risk? There does not appear to be a conclusive answer, however.
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A March 2015 review of the weed killer conducted by the World Health Organization’s International Agency for Research on Cancer (IARC) and published in the International Journal of Environmental Research and Public Health stated that glyphosate (brand name Roundup) is “probably carcinogenic to humans.” In July 2017, glyphosate was added to California’s list of chemicals known to cause cancer, according to the state’s Office of Environmental Health Hazard Assessment (OEHHA).
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According to Monsanto, no regulatory agency in the world considers glyphosate to be a carcinogen, and the company cites more than 800 scientific studies to back up its claim, including the U.S. Agricultural Health Study, which is the largest study of the real-world use of pesticide formulations and health risks ever conducted. Published in November 2017 in the Journal of the National Cancer Institute (JNCI), the study followed the population that uses the most glyphosate products (farmers and growers) for 20 years and found no link between the use of formulated glyphosate products and cancer.
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The National Pesticide Information Center has said that studies on cancer rates in humans have produced “conflicting results on whether the use of glyphosate-containing products is associated with cancer,” but admits that “some studies have associated glyphosate use with non-Hodgkin lymphoma.”
Now a California jury will get to decide.
According to Brad Biren of Johnston Martineau in Des Moines, Iowa, the crux of the matter is whether Monsanto is guilty of negligent mislabeling or monitoring its product and if the answer to the first question is no, should Monsanto be held strictly liable. “Strict liability is an absolute standard – if you were in control of your own product, then you shall be held liable,” he said.
“But if information regarding the link between the product and cancer was not known at the time of sale, then they will almost undoubtedly not be held liable. If the risk WAS known, then they can possibly be held liable. But, the threshold for negligence is so high, that it may still not be enough. Strict liability doesn’t ask that question of knowledge–the legal thresholds will be merely if there is a connection.”
Glyphosate, first cleared for use in 1974, is one of the most popular and widely used weed killers in the U.S., where over 750 products containing the herbicide are currently for sale. Roundup accounted for approximately $4.8 billion in revenue for Monsanto in 2015, despite the fact that concerns about safety have been circulating for many years. To counteract bad press brought on by the lawsuits, the company increased its outreach efforts about Roundup and its alleged safety by 17% in the first quarter of 2018.
The German pharmaceutical company Bayer bought Monsanto in early June for $66 billion, at which time Roundup (and the herbicide’s litigation risk) became part of the Bayer portfolio. As of August 2017, Monsanto had set up a reserve fund of $277 million for environmental and litigation liability, according to a Bloomberg report.
The world is watching. Although the outcome of the Johnson case won’t be binding on thousands of other actions currently pending in St. Louis, more than 400 federal cases consolidated into multidistrict litigation in San Francisco, or the dozens of cases pending in Oakland, CA that all make similar claims, many see the trial as an indicator of what is yet to come.
The outcome of Johnson v. Monsanto is of the utmost importance to Biren, not only from a legal standpoint, but from a health one as well. “I’m an attorney in Iowa – also known as ‘Roundup country,’ and we are watching the California case closely,” he said.
“Iowa has so many farmers that have been affected. Our air, our water, our loved ones have all been hurt, likely from Roundup. I have a plant sciences degree, and it appeared that there was no effect on humans about 15 years ago. Then new data started coming in to the science journals. Now, we find ourselves here. We are waiting with bated breath here in Iowa to file the mass tort action,” said Biren.
But nobody thinks it will be easy to hold Monsanto accountable, including Rhon Jones, attorney at Beasley Allen Law Firm in Montgomery, Alabama. Jones heads up his firm’s toxic tort division and has litigated against Monsanto for many years, even securing a large settlement from the company in 2003. His firm is currently handling cases in the MDL and also in state court in Missouri.
“I don’t know what the outcome of the Johnson case will be, but Monsanto will contest it vigorously as they have every step of the way. Roundup is a very important product to Monsanto, and they will continue to fight even if a verdict is rendered against them,” Jones said. “They will appeal any adverse outcome. If they win, they will tout that through their extensive PR network. Regardless of the result, plaintiffs in this litigation have will have to work hard to prevail,” he said.
