Jurors Take Over in Roundup Cancer Trial Liability Phase

SAN FRANCISCO (CN) – Arguing that agrochemical company Monsanto has spent decades deceiving consumers about the dangers of its popular Roundup weed killer, attorneys for a California man living with cancer asked a federal jury Tuesday to award their client $18 million for his pain and suffering and enough in punitive damages to ensure the company acts ethically in the future.

“Nothing has stopped this company,” plaintiff’s attorney Jennifer Moore told jurors, adding that Monsanto cares only about profits. “You’ve got to warn – no more business as usual at Monsanto. Send that message loud and clear.”

The comment came during closing arguments in the second half of the high-stakes trial over the apparent carcinogenicity of Roundup – the most widely used herbicide in the world. After deciding in an initial trial phase that Roundup partly caused plaintiff Edwin Hardeman’s non-Hodgkin lymphoma, the six-person jury must now decide whether Monsanto is liable for his illness and how much it must pay in damages if it is.

Monsanto, which German pharmaceutical company Bayer AG acquired last June, insists Roundup and its active ingredient glyphosate are safe, citing hundreds of studies finding no link between them and non-Hodgkin lymphoma and determinations by regulators around the world that glyphosate doesn’t cause cancer.

But Hardeman, who was diagnosed with aggressive Stage 3 non-Hodgkin lymphoma in early 2015 and is now in remission, claims his 26 years using Roundup to kill weeds and poison oak on his large Sonoma County property caused the disease.

At trial, Hardeman testified he never would have used Roundup had it come with a cancer warning on the label. Moore reiterated this testimony to the jury Tuesday, and asserted that Monsanto “knew or should have known the entire time Mr. Hardeman was spraying that Roundup causes” non-Hodgkin lymphoma.

To support this argument, Moore ran through a litany of Monsanto’s alleged sins purportedly proving the company knew Roundup causes cancer. According to Moore, Monsanto manipulated the U.S. Environmental Protection Agency into classifying glyphosate as non-carcinogenic by faking an extra cancer finding in a mouse study in the mid-1980s; refused to conduct a mouse carcinogenicity study after learning the contract lab that conducted the only existing mouse study on which Roundup’s EPA approval was based had been deemed invalid based on shoddy lab practices; buried findings by a prominent toxicologist concluding glyphosate is genotoxic; and skewed the scientific literature on glyphosate in its favor by ghostwriting key studies that found no link between the chemical and non-Hodgkin lymphoma.

“And what did they do? They didn’t take it off the shelf, they didn’t warn that it causes cancer,” Moore said. “They just kept selling Roundup, they kept making money off of it.”

She continued: “[I]t is the exact opposite of what a responsible company should be doing. A responsible company would test its product. A responsible company would tell its customers if they knew Roundup caused cancer,” she said. “If Monsanto had done the right thing and put a warning label on the product, we wouldn’t be here today.”

Moore next addressed punitive damages by giving the jury a snapshot of Monsanto’s financial condition. Bayer bought Monsanto this past June for $63 billion and Monsanto’s 2018 net worth was $7.8 billion, with $2.4 billion in cash on hand. The company spends $1.5 billion annually on research and development.

“They couldn’t take a little bit of that $1.5 billion and test it?” Moore said, echoing earlier arguments that Monsanto never conducted a long-term animal carcinogenicity test of formulated Roundup, which Moore said is more carcinogenic than glyphosate alone.

“They gave him cancer,” she said. “Nothing can be more cruel and unjust.”

In his own closing argument, Monsanto attorney Brian Stekloff emphasized no regulator or health agency in the world deemed glyphosate or Roundup carcinogenic before 2012 – the final year Hardeman used Roundup and thus the cutoff date for evidence admitted into the trial – or required a cancer warning on the product.

A “key” legal question the jury must answer, added Stekloff, of the law firm Wilkinson Walsh Eskovitz, is whether Monsanto acted “reasonably.”

“No one in the outside world said glyphosate caused cancer, not a single regulatory body anywhere in the world,” he said. “That goes directly to Monsanto’s state of mind and whether it acted reasonably based on the science.”

Stekloff also assailed plaintiff’s expert Christopher Portier, a cancer-risk expert who has worked for various U.S. regulatory agencies and who testified that glyphosate and Roundup can cause cancer.

“He never said glyphosate or Roundup causes cancer” when he worked for those agencies or before the 2012 cutoff date, Stekloff said. He added Portier did not say glyphosate or Roundup cause cancer until he signed on as a paid consultant in the Roundup litigation, which comprises more than 11,000 lawsuits across the country.

“This is their expert admitting that no agency in the world thought Roundup was carcinogenic,” Stekloff said of a portion of Portier’s testimony played in court Tuesday. “And yet the allegation here is that Monsanto was basically involved in criminal behavior that it is not admitting.”

But Monsanto’s strongest moment Tuesday came when the company rebutted Hardeman’s assertion that he would not have used Roundup had it come with a cancer warning.

During trial, Hardeman testified he read the Roundup label three or four times during the nearly three decades he used the herbicide. But Stekloff countered this on cross-examination by reading to the jury Hardeman’s prior deposition testimony in which he said he had read the label at most twice during that time, only raising the figure after conferring with his attorneys.

Even if the jury concludes Roundup should have had a cancer warning, “[t]here is no evidence he would have read the warning,” Stekloff said of Hardeman. “They can’t get around this.”

Before ending his remarks, Stekloff asked jurors not to bow to pressure to change their minds as they deliberate. The comment apparently referenced Phase One deliberations, when it seemed as though the jury had reached an impasse and the proceedings would end in a mistrial.

A mistrial would mean retrying Hardeman’s case, and is Bayer’s best chance for beating back pressure to settle the remaining lawsuits.

“Do not change your belief simply to reach a verdict,” Stekloff told the jury.

Jury deliberations resume Wednesday morning.

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