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.