Recently, a San Francisco jury found in favor of Dewayne Johnson, against Roundup maker, Monsanto. After a month-long trial, the jury awarded the 46-year-old former groundskeeper $289 million in damages as compensation for his terminal cancer diagnosis. This award included past and future economic losses, as well as punitive damages.
The jury determined that Monsanto’s Roundup weed killer was the cause of Mr. Johnson’s cancer. Further, the jury found that Monsanto failed to warn Mr. Johnson of the health hazards associated with exposure to Roundup, and that Monsanto “acted with malice or oppression.” While Mr. Johnson’s case was the first to go to trial, it likely will not be the last. There are more than 8,000 similar cases filed in courthouses across the United States.
San Francisco Superior Court Judge Suzanne Bolanos denied Monsanto’s motion to overturn the landmark jury verdict. However, the award amount was substantially reduced to $78 million.
Battle of the Experts
This case involved a battle of the experts, with Mr. Johnson’s attorneys arguing Roundup caused his cancer, and attorneys for Monsanto disputing this claim. In 2015, The World Health Organization’s International Agency for Research on Cancer (IARC) classified glyphosate as “probably carcinogenic to humans.” IARC uses this classification when “there is limited evidence of carcinogenicity in humans and sufficient evidence of carcinogenicity in experimental animals.”
Monsanto, on the other hand, argued Roundup is not linked not cancer. The defendant presented studies that countered the research and testimony presented by Mr. Johnson’s legal team. These arguments included a finding from the U.S. Environmental Protection Agency in 2017 that glyphosate is “not likely carcinogenic to humans.” After the trial and verdict, Scott Partridge, vice president of Monsanto, was quoted asserting the IARC does “no testing, they do no analysis, they have no laboratories, they simply render an opinion.”
Mr. Johnson’s attorneys accused Monsanto of ignoring evidence suggesting a cancer link, and actively ghostwriting favorable research. Monsanto argued the emails the plaintiff relied on were taken out of context and cherry picked.
Judge’s Ruling About Expert Testimony
Whether Mr. Johnson’s experts could testify was the subject of significant litigation. Monsanto challenged the testimony of plaintiff’s experts under a number of different theories.
The plaintiffs took the position that, barring extreme situations, California law requires the court accept expert testimony which is based on peer reviewed studies. The court declined to adopt such a bright line rule. The court noted there are peer reviewed studies in the area of astrology, but, the court opined, “no court would accept those as creating a pertinent controversy,” such that the studies would be admissible to support a claim. The court also noted:
- Not every peer reviewed study is valid science
- Most research findings are not unreliable
- Many peer reviewed studies are infected with error, outright misconduct, bias, conflicts of interest, or scams
However, the court noted,
it remains unclear under California law whether studies can be rejected for other reasons such as irreproducibility or p-hacking (cherry picking data until the results are ‘statistically significant’) or sloppy work, primarily because state law has not developed a robust sense of what counts as ‘scientific’ and what therefore is beyond that pale and so should not be seen by a jury.
In its ruling, the court points out that, even in federal court under the Daubert standard, evidence has been admitted which was not based on disinterested research, where a given methodology was not subject to either publication or peer review, and in cases where the theory’s error rate was unknown. This, of course, is due to the determination these objections go to weight, not admissibility of the testimony.
Errors in methodology, or where studies have patent flaws, can be subject to cross examination. Inconsistent studies can be reviewed with an eye towards the net effect of such a review. The court notes that the standard for admitting a peer reviewed study, and the standard for allowing the admissibility of an expert opinion which may be founded on those studies are not the same.
The court carefully reviewed the arguments and relevant case law, and made the determination that most, but not all, of the plaintiff’s experts’ opinions were admissible at trial. This decision paved the way for the litigation to continue. Had the court granted the arguments of Monsanto, the end result likely would have been summary judgment in favor of Monsanto, as the plaintiff would not have been able to substantiate their claim.
Choosing an Approach
According to one of the plaintiff’s experts, Charles Benbrook, Mr. Johnson’s legal team employed three prongs of attack based on scientific data about whether glyphosate might contribute to or cause cancer:
- Animal studies
- Genotoxicity assays and
- Epidemiological studies
Interestingly, in an interview, Benbrook further broke down the plaintiff’s approach:
I was responsible for addressing Monsanto’s management — and spinning — of internal and external science. This included their extensive ghost-writing of peer-reviewed papers, commentaries, and other published and marketing material; the company’s manipulation of peer-reviewed, published science; and, Monsanto’s refusal to provide to EPA damaging information they became aware of through their internal research, including some key studies that Monsanto was arguably obligated under federal law to provide to EPA.
While the roadmap is incomplete, Benbrook’s comments provide insight as to the trial lawyers’ plan of attack. Not every expert was called to testify about every issue. Instead, Mr. Johnson’s lawyers hired a multitude of experts to testify about different areas of relevance. Even two experts with the same general background may testify about two different topics, such as one addressing the management of internal and external science, while another speaks directly to the nature and quality of the internal and external science.
Monday Morning Quarterbacking. . .
Of course, in every case, every participant has their own perspective about what happened, why it happened, how and when it happened, and the significance of one bit of testimony over another. Benbrook’s perspective is that Monsanto’s lawyers and experts argued every bit of science the plaintiff introduced was flawed, included misinterpreted results, or a subsequent study came to a different conclusion. In Benbrook’s opinion, “the jury began to question the objectivity of the Monsanto experts and lawyers.” In addition,
Monsanto advocates have a tendency to overstate their case: e.g., we often hear them say there is ‘no evidence’ Roundup poses x, y, z risk, and that 800 studies show Roundup is safe. There are over 4,000 studies on Roundup and glyphosate, and hundreds report evidence supporting a role of Roundup in Lee Johnson’s non-Hodgkin lymphoma. To dismiss all positive evidence as flawed or irrelevant was apparently too much for this jury to stomach.
Without forming an opinion as to the merits of the position, one might consider whether an “all or nothing approach” makes sense in this – or any case. For if an expert is truly testifying about science, which is reproducible and verifiable, surely there must be some common ground.
Without having reviewed the extensive testimony in the case, it is difficult to say whether Mr. Johnson’s side prevailed because they had better science, or because the jury simply chose to believe Mr. Johnson’s experts over Monsanto’s experts. One thing is certain, the lawsuits over whether glyphosate causes cancer, and whether Roundup’s label should have provided warnings about this risk, will continue for years to come.