Federal Jury Deliberates Over Roundup Cancer Claim

SAN FRANCISCO (CN) – Attorneys for a California man asked a San Francisco federal jury on Tuesday to clear claims that Monsanto’s Roundup weed killer causes cancer for a second round of trial testimony to decide liability and potentially how much money the agrochemical company owes for selling the man a dangerous product.

In her closing statement to the jury Tuesday morning, plaintiff’s attorney Aimee Wagstaff asked jurors to consider three things as they deliberate over whether Roundup caused her client Edwin Hardeman’s non-Hodgkin lymphoma: the totality of the scientific evidence regarding a potential link between Roundup and non-Hodgkin lymphoma; the evidence showing Hardeman wasn’t infected with hepatitis – a known risk factor for non-Hodgkin lymphoma – at the time he was diagnosed with the cancer in 2015; and that they don’t have to believe Roundup was the only cause of Hardeman’s cancer to vote in his favor.

“You heard a lot of different things about his Hepatitis C or his Hepatitis B,” Wagstaff, of Colorado law firm Andrus Wagstaff, told the six-person jury. “Just remember that it does not have to be the only factor.” Later, she added, “If you can conclude that it was sufficient on its own…then you can find for Mr. Hardeman even if you believe that other factors” contributed to his cancer.

Hardeman, who has been in near-remission from non-Hodgkin lymphoma since finishing chemotherapy in 2015, used Roundup for nearly three decades to combat poison oak on his 56-acre property in Forestville, California. During the first phase of the trial, his expert pathologist said Hardeman, 70, sprayed an estimated 5,900 gallons of Roundup and was exposed to the herbicide over 300 times without wearing protective clothing or equipment, increasing his cancer risk.

Monsanto countered that Hardeman’s non-Hodgkin lymphoma was likely caused by a 39-year-old Hepatitis C infection, along with exposure to Hepatitis B and an immune system weakened by his advancing age, which are all risk factors for non-Hodgkin lymphoma. Noting that most non-Hodgkin lymphoma cases have no known cause, the Bayer AG subsidiary argued Hardeman’s diagnosis also might have no discernible cause.

Regardless of the outcome, the Hardeman verdict will have far-reaching consequences for both parties. The first of three bellwether verdicts, or test verdicts, expected this year in the federal Roundup litigation, it could help determine future litigation strategy, including whether to initiate settlement negotiations with thousands of plaintiffs who sued Monsanto in the wake of 2015 finding by the World Health Organization’s cancer research arm that Roundup’s active ingredient glyphosate is a probable human carcinogen.

Last August, a San Francisco state court jury returned a $289 million verdict in favor of a Bay Area groundskeeper with terminal non-Hodgkin lymphoma, though it was later reduced to $78 million. Bayer has appealed that verdict.

On Tuesday, Wagstaff sought to downplay Hardeman’s history with Hepatitis C by arguing he had no active infection at the time of his 2015 cancer diagnosis, and has been virus-free since undergoing antiviral therapy nine years earlier. She reminded jurors that the virus didn’t reappear during  six rounds of chemotherapy, when Hardeman’s immune system would have been too weak to keep it in check.

“During chemotherapy, if there is any virus in there, it will rear its head,” Wagstaff said. “Six rounds of chemotherapy and not one time, not one time did Hepatitis C show up.”

Wagstaff also criticized Monsanto’s insistence that jurors consider only findings from human studies done with federal Agricultural Health Study [AHS] data – which have shown no link between Roundup and non-Hodgkin lymphoma – in deciding whether Roundup was a “substantial factor” in Hardeman’s disease. Wagstaff acknowledged that a 2018 AHS study showed no association, but argued it couldn’t do so because the data is “so flawed,” due in part to the fact that 37 percent of participants dropped out of the study.

To support her argument, Wagstaff noted that Monsanto criticized the AHS in 1999 before realizing the results were coming out in its favor. Internal documents show the company believed the AHS was “flawed,” “junk science,” “unreliable” and “scary,” and predicted it would reveal “some health effects” of glyphosate “just because of the way the study is designed.”

“Today, despite those problems, their litigation position is that this is the only comprehensive study and the only thing you should consider,” Wagstaff told the jury.

She reminded jurors of the AHS’s seemingly absurd results.

“The AHS actually shows a protective effect,” she said. “If you believe that’s a good study, then you have to believe that Roundup protects us, that being exposed to Roundup has a protective effect.”

Monsanto’s attorney Brian Stekloff, of Wilkinson Walsh Eskovitz in Washington, rebutted this assertion in his own closing remarks Tuesday, explaining that the study’s risk ratio is “right around 1” and thus not statistically significant.

“What that shows is that there is no association,” Stekloff said. “For them to argue it’s protective is just inaccurate based on what you heard in this trial.”

Stekloff next sought to discredit Dr. Dennis Weisenburger, a City of Hope pathologist and the only doctor who testified that Roundup caused Hardeman’s cancer. Yet, Stekloff said, Weisenburger has never discussed Roundup as a cancer risk factor with other doctors or included it in the pathology reports of the cancer patients he has evaluated.

“He’s doing something in this courtroom he doesn’t do in his practice with patients who have non-Hodgkin lymphoma,” Stekloff said. Moreover, he said, Weisenburger “under oath here…changed and clarified testimony he didn’t like” to help “prove that Roundup is a substantial contributing factor in any case.”

Stekloff next assailed Wagstaff’s argument regarding inactive hepatitis potentially left over in Hardeman’s body.

“It is irrelevant,” he said. “It is a sideshow; it has nothing to do with whether Hepatitis C may have caused Mr. Hardeman’s NHL because of that ‘hit-and-run,'” he said, referring to the mechanism by which Hepatitis C can cause non-Hodgkin lymphoma by infecting healthy cells, producing cancerous DNA mutations, and exiting the cells after treatment.

“[T]he antiviral therapy does not matter,” Stekloff said. “That lock and key isn’t there anymore and that’s why treatment doesn’t matter … that mutation is still there. That is the ‘hit-and-run’ and that is in the science.”

And Stekloff reminded the jury that Weisenburger didn’t tell them about BCL6, a cancer mutation associated with Hepatitis C found in Hardeman’s tumor pathology.

“He didn’t even talk to you about this BCL6 mutation,” Stekloff said, “so you have to ask yourselves…is he trying to prove to you with all of the information you need to determine whether Roundup was a substantial contributing factor” in Hardeman’s non-Hodgkin lymphoma?

Finally, Stekloff clarified Wagstaff’s earlier remark that the jury can find for Hardeman even if they believe that other factors, like hepatitis, might have also contributed to Hardeman’s cancer.

“No one has come into this courtroom and told you it could’ve been both; don’t be confused by this language,” Stekloff said. “So, really, you have to believe that Dr. Weisenburger was the only person to come in and say this and Dr. Weisenburger’s methodology, and his actions outside this courtroom do not stand the test.”

The jury deliberated for about 1.5 hours following closing arguments Tuesday afternoon, but did not return a verdict. Jury deliberations resume Wednesday morning, and a verdict is expected in the afternoon.

If Hardeman prevails, a second trial phase to determine Monsanto’s potential liability and damages will kick off later Wednesday or early Friday.

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