(CN) – San Francisco federal judge Vince Chhabria's decision to split up the pivotal bellwether trials over an alleged link between Monsanto’s herbicide Roundup and cancer was controversial. Long perceived by its critics as deceitful and greedy, the agrochemical giant would finally be judged solely on the science.
But some observers questioned how a jury could judge the science many say Monsanto manipulated for decades, and accused Chhabria of bias. Legal experts predicted the defense-friendly ruling would help exonerate Monsanto because jurors would hear the company's strongest arguments before allegations of malfeasance. Attorneys representing the plaintiffs worried they no longer had viable cases.
But in March, the federal jury that heard the first bifurcated trial found the Bayer AG subsidiary liable for not warning plaintiff Ed Hardeman of Roundup's cancer risks and awarded him $80 million in damages.
A 2018 state court trial involving similar claims, also in San Francisco, wasn't bifurcated. From the start, jurors heard about the alleged tactics Monsanto used to safeguard its signature product against cancer concerns. They heard Monsanto discredited dissenting researchers, ghostwrote purportedly independent studies concluding Roundup's active ingredient glyphosate is safe, and used fraudulent data to get regulators to clear Roundup for sale, keeping it on the market indefinitely – and making it the most widely used herbicide in the world.
Non-Hodgkin lymphoma patient Dewayne Johnson was awarded $289 million – later reduced to $78.5 million – in that trial. So Monsanto proposed bifurcating Hardeman’s trial and two other bellwether trials in the multidistrict litigation. In the causation phase, jurors would consider, based on the scientific literature, whether Roundup caused the plaintiffs' cancer. If the jury found causation, a second phase would determine potential liability and damages.
According to Monsanto, bifurcation was the only way it could get a fair trial since inflammatory evidence presented during Johnson's trial had overwhelmed the science and tainted the jury. Chhabria agreed, and Monsanto's detractors pilloried him for it.
But the January ruling contemplated more than the trial proceedings. "Monsanto has already lost a $78.5 million judgment in state court, in a trial that was not bifurcated," Chhabria wrote. "If Monsanto were also to lose on the causation question in a bifurcated trial in federal court, the parties would learn a great deal about Monsanto’s chances of success (or lack thereof) in all future cases, however structured."
Bifurcation and stricter federal evidence rules meant the Hardeman jury didn't hear as much negative evidence about Monsanto as the Johnson jury or as the jury in a state court case currently being tried in nearby Oakland, which heard an expert witness testify Monsanto used skin from animals and humans that had been "baked and cooked" and rendered impenetrable to test the dermal absorption of glyphosate. Yet Hardeman won – a feat more remarkable because he also had chronic hepatitis C, a major risk factor for developing non-Hodgkin lymphoma.
Hardeman "tells us the plaintiffs can win these cases when bifurcated," Alexandra Lahav, a law professor at the University of Connecticut, said by phone. “We thought causation would look weak, relatively speaking. That's not how it panned out. To me it looks like more of a 50-50 on causation."
That's a blow for Monsanto, which has always argued the science proves glyphosate is safe. The company may now try more cases and appeal adverse verdicts before seriously negotiating a settlement.
"Even if they lose, they get them reversed on appeal and take the wind out of their sails," said Lahav when asked what Monsanto might do post-Hardeman. "Then settle the most egregious cases and leave the rest to settle later for less money."