Federal Judge Denies New Roundup Trial for Monsanto

SAN FRANCISCO (CN) – A federal judge will not overturn a jury’s verdict in favor of a Bay Area man who claimed years of using Roundup weed killer caused him to develop non-Hodgkin lymphoma.

U.S. District Judge Vince Chhabria’s ruling, issued late Friday, said although it was difficult to pin down Edwin Hardeman’s causation theory at trial, the defect appeared to be that Roundup was sold without a warning, not that the product itself is defective.

“Mr. Hardeman presented no evidence that Roundup is inherently defective regardless of whether accompanied by a warning. He presented no expert testimony that Roundup could not be used safely with the proper precautions. And he made no argument to the jury that Roundup simply shouldn’t be on the shelves for residential use,” Chhabria wrote.

But Chhabria said there is no reason to overturn the jury’s verdict as the design defect claim turned into a failure-to-warn claim at trial.

“Construed that way, there is no reason to overturn the jury’s verdict on the design defect claim. There was sufficient evidence to support a finding that Roundup is ‘defective’ within the meaning of California law when sold without a warning,” he wrote.

Chhabria added, “If this court were incorrect in interpreting California law as permitting a design defect claim based on the absence of a warning, and if thus Mr. Hardeman’s only true path to victory on the design defect claim were the theory that Roundup should not have been sold for residential use at all, then judgment as a matter of law would be entered for Monsanto on the design defect claim.”

In March, a six-person jury found Monsanto failed to warn Hardeman that its popular Roundup weed killer is carcinogenic, and that the company acted maliciously by not putting a warning label on the bottle.

The 70-year-old Hardeman, whose non-Hodgkin lymphoma is now in remission, was awarded $75 million in punitive damages and $5 million in compensatory damages for past and future pain and suffering – $3 million for the past and $2 million for the future.

Hardeman’s was one of hundreds of lawsuits filed against the agrochemical giant after the World Health Organization’s International Agency for Research on Cancer deemed glyphosate, the active chemical in Roundup, a probable carcinogen in 2015.

Monsanto argued that it was improper for IARC’s decision to be admitted, while evidence of why regulators continued to approve glyphosate was left out.

“That sounds reasonable out of context,” Chhabria said, but noted that only the fact of the IARC decision was admitted, not the details of its classification. “Similarly, the fact that regulators continued to approve glyphosate following the IARC classification was admitted, just not the details underlying those decisions. Therefore, the jury was fully aware that the regulators were not swayed by the IARC classification,” Chhabria said.

If evidence of various worldwide regulators’ approval of glyphosate had been allowed to come in, Chhabria, said, evidence of Monsanto’s efforts to influence the Environmental Protection Agency and discredit IARC would have come in as well. Because 2012 was the last year Hardeman used Roundup, Monsanto had argued that this type of post-2012 evidence should have been excluded, and it was. Chhabria noted that Monsanto could have “chosen to flick the domino” but it was good trial strategy not to, since it would have been incredibly damning.

Chhabria also rejected Monsanto’s request for relief based on expert testimony at trial that a person’s risk of developing non-Hodgkin lymphoma doubles with more than two days of Roundup use per year, or more than ten days in a lifetime. The McDuffie and Eriksson studies on which this testimony was based did not adjust for use of other pesticides, but Chhabria said that it was clear that Hardeman’s epidemiological expert, Dr. Beate Ritz, was using shorthand when discussing the statistical results of those studies.

“Based on how Dr. Ritz used the term ‘twofold risk increase’ at trial –namely, when discussing the statistical results of specific studies –it was clear in context that she was summarizing the data from the McDuffie and Eriksson studies, rather than testifying to an overall conclusion that someone using Roundup is twice as likely to develop NHL,” Chhabria wrote, adding, “While Monsanto is correct that such a result does not translate to a general two-fold increase for all Roundup users, it was proper for Mr. Hardeman’s experts to relay the results of these studies, so long as they explained that the numbers were unadjusted.”

Chhabria heard Monsanto’s motion to overturn the verdict at a hearing last week, where he said he will likely reduce Hardeman’s $80 million damages award on constitutional grounds. His ten-page order Friday did not touch that issue.

“Based on the court’s pre-hearing order limiting argument primarily to damages, we are not surprised by today’s order,” Bayer said in a company statement emailed to Courthouse News. “As the court has not yet ruled on the damages portion of our post-trial motions, we will evaluate our legal options once there is a final ruling on these motions.”

Hardeman’s attorneys were not available to comment late Friday.

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