Plaintiff Landscaper Used Roundup for 20 Years
The plaintiff, John McKivison, is a former Pennsylvania landscaper who used the Roundup product in his job and at his home for twenty years. McKivison’s lawyers said while on the job he would load 25-gallon tanks of Roundup onto his tractor and disperse it to control weeds and unwanted vegetation. The landscaper also applied Roundup to his home garden.
Court testimony indicates that doctors diagnosed McKivison with non-Hodgkins lymphoma in 2020. Glyphosate, Roundup’s active ingredient has been linked to cancer. Mr. McKivison and other Roundup users who have sued Monsanto maintain that the company knew some researchers had labeled glyphosate as a carcinogen and tried to bury the findings.
Expert Witness Role Highlighted
Expert testimony played a key role in the jurors’ verdict. One of McKivison’s lawyers, Thomas R. Kline of Kline & Specter PC, stated that the jury took "copious notes" during both plaintiff’s and defendants’ testimony.
At the trial, the jury heard technical expert testimony that focused heavily on the chemicals used in Roundup. Mr. McKivison’s experts supported his claim that the glyphosate in Roundup contributed to his developing non-Hodgkin lymphoma. The plaintiff cited a study from the International Agency for Research on Cancer that said glyphosate is probably carcinogenic.
The defense asserted that the U.S. Environmental Protection Agency (EPA) had determined the chemical was not harmful.
However, there was a big problem in court with one of Monsanto’s witnesses. The trial judge Susan Schulman took issue with the testimony of Monsanto’s lead toxicologist, striking 45 minutes of his testimony from the record after the jury heard it.
The judge said that although he was a fact witness, the toxicologist had extended his answers and inserted his own opinions about the science involved. Such scientific opinions should have come from an expert witness, not a fact witness. Monsanto said he was simply an inexperienced witness.
Randy Soriano of Bryan Cave Leighton Paisner LLP, one of Monsanto’s lawyers, asserted that the judge's decision was prejudicial. Soriano argued that EPA reports supported the fact witness testimony. Judge Schulman disagreed and denied the mistrial request.
The Verdict
On January 26, 2024, the jury handed down their decision against Monsanto. The verdict included $250 million in compensatory damages for Mr. McKivison’s losses and an astronomical $2 billion in punitive damages.
Kline and Jason Itkin of Arnold & Itkin LLP, who also represented the plaintiff, commented that "[t]he jury's unanimous verdict was a condemnation of 50 years of misconduct by Monsanto and a declaration that its misconduct was in reckless disregard of human safety and a substantial cause of John McKivison's cancer.”
The attorneys added that the amount the jury awarded "sends a clear message that this multi-national corporation needs top to bottom change."
In an email statement, Bayer said, “We disagree with the jury’s adverse verdict that conflicts with the overwhelming weight of scientific evidence and worldwide regulatory and scientific assessments, and believe that we have strong arguments on appeal to get this verdict overturned and the unconstitutionally excessive damage award eliminated or reduced.”
The company also said despite its sympathy for Mr. McKivison, we are “confident that our products can be used safely and are not carcinogenic, consistent with the assessments of expert regulators worldwide.”
Roundup Liabilities Continue to Rock Bayer
Although Monsanto has prevailed in 10 out of 16 recent Roundup trials, two losses have had extremely high awards. In addition to the $2.2 billion McKivison award, in November 2023 a Missouri jury delivered a $1.5 billion verdict in favor of three former users of Roundup. A 2019 California jury awarded a husband and wife who claimed Roundup gave them cancer a combined verdict of $2.055 billion. This award was later reduced to $87 million. Monsanto will start another Roundup trail in Delaware in March.
Before the jury announced its verdict Bank of American analysts had downgraded Bayer’s shares due to the Roundup litigation overhang. The company’s shares fell about 3%
Bayer AG has earmarked as much as $16 billion to resolve the estimated 100,000+ Roundup cases. Yet, more lawsuits over the cancer-causing glyphosate and other elements in the herbicide continue to pile up. The U.S. Supreme Court declined in 2022 to hear Monsanto's arguments that procedural grounds should stop all Roundup suits from proceeding.
In the summer of 2023, a German news publication said the company’s new CEO is considering spinning off the problematic crop science division where Monsanto landed after Bayer acquired it.
Case Attorneys and Citation
Here is some additional information for attorneys and others wanting more information on this case.
Thomas R. Kline and Tobi L. Millrood of Kline & Specter PC, and Jason Itkin of Arnold & Itkin LLP represent John McKivison.
Defense counsel includes Chanda A. Miller of Barnes & Thornburg LLP; Joseph H. Blum, Katelyn A. Romeo, Nicolai Schurko, and Erin L. Leffler of Shook Hardy & Bacon LLP; Randy Soriano of Bryan Cave Leighton Paisner LLP; and Anthony Upshaw of McDermott Will & Emery LLP.
The case reported on in this article is McKivison v. Monsanto et al., case number 220100337, in the Court of Common Pleas of Philadelphia County, Pennsylvania
